van Royden v University of Sydney

[2022] NSWCATAD 244

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

van Royden v University of Sydney [2022] NSWCATAD 244

Hearing dates:

19 January 2022

Date of orders:

21 July 2022

Decision date:

21 July 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

Leave for the complaint against the University of Sydney to proceed is refused.

Catchwords:

HUMAN RIGHTS — equal opportunity — whether leave required for complaint to proceed — principles applying to grant of leave

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Cases Cited:

Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143

Jones & Anor v Ekermawi [2009] NSWCA 388

Category:

Principal judgment

Parties:

Rodney Van Royden (Applicant)
University of Sydney (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
Office of General Counsel, USYD (Respondent)

File Number(s):

2021/00319449

Publication restriction:

None

REASONS FOR DECISION

1. Mr Rodney van Royden has been a student at the University of Sydney (the University), enrolled in a Master of Laws program since Semester 2, 2019. Mr van Royden alleges that he has been unable to seek academic adjustments because of his disability through the university. He alleges that he was required to waive some of his rights concerning medical information before the University would allow him to register with its inclusion and disability services. Mr van Royden contends that this constitutes discrimination on the basis of disability in respect of education.

2. The complaint was received by the President at Anti-Discrimination New South Wales (‘the President’) on 9 August 2001 from Mr van Royden. The President accepted the complaint for investigation. The investigation revealed that the complaint was lacking in substance and dismissed it. Mr van Royden now seeks leave to proceed with his complaint.

Statutory framework and principles governing the grant of leave

3. Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If at any stage during the investigation of a complaint, the President is satisfied that it is lacking in substance, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint (s 92(1)(a)(i)). It is this decision which I have jurisdiction to review.

4. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act.

5. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.

6. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is “fair and just” to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].

Background facts 

7. Mr van Royden contends for the following matters:

1. [He]…simply requested USYD to be reasonable with the use of [his] personal information (and ideally be accountable for any mistakes it made that caused (Mr van Royden) loss) but no amendments to the [I&DS registration] form with permitted. Consequently, [Mr van Royden has] never had any reasonable adjustments or support for [his] medical condition, which is exacerbated during COVID - 19.

2. As per previous emails, not only is the policy unlawful discrimination (as it treats people like me less favourably and is an unjustifiable hardship) but this policy has resulted in me having to suffer in some studies. For instance, my in-person contract law unit when I had to miss time in lectures whilst risking the stairs to find the toilets. I missed the session of what was expected in assessments. The lectures were not recorded.

3. USYD did not provide access to my lectures and use the fact that I did not sign a form waiving or reducing my rights as justification to discriminate against me and my medical condition.

8. The complaint essentially revolves around Mr van Royden being required to register with the Universities Inclusion and Disability Service (I&DS) to seek academic adjustments, which is a standard process for all students. Mr van Royden refused to sign the registration form that all students registering with I&DS are required to sign, titled “Acknowledgement of Use and Disclosure of Personal Information”. Mr van Royden said he would only sign the form if certain conditions were included about the use of his personal information. The University rejected Mr van Royden’s proposed conditions.

9. The University contends that its approach to implementing academic adjustments for students with a disability through the central business unit of I&DS, rather than through each facility and University School, is reasonable and appropriate. This structure is designed to as best as is possible, provide reasonable adjustments to students with a disability in a way that is managed consistently and equitably.

10. Requiring students to seek academic adjustments through I&DS, and in accordance with the standard process is established for all students registering with I&DS, does not amount to the university unreasonably refusing to provide adjustments to a student. Further, it will be reasonable for the university to refuse those students request for adjustments, where that refusal request would require the University to provide adjustments to accommodate a student’s disability.

11. It is reasonable for the University to require students registering with I&DS to acknowledge and agree how the university will manage the information about their disability, given the University requires this in order to facilitate the implementation of a student’s reasonable adjustments to accommodate a disability and registration with I&DS, the University has taken steps to seek to explain and address Mr van Royden’s concerns.

My consideration

12. It is not in contest that Mr van Royden has a disability.

13. It is worth noting that discrimination on the basis of disability under s49B of the Act provides:

1. A person ( "the perpetrator" ) discriminates against another person ( "the aggrieved person" ) on the ground of disability if the perpetrator-- 

   (a)   on the ground of the aggrieved person's disability or the disability 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 who does not have that disability or who does not have such a relative or associate who has that disability, or 

   (b)   requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. 

2. For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. 

3. For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog. 

(3A)   For the purposes of, but without limiting, this section, the fact that a person who has a disability-- 

(a)   is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or 

(b)   is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact, 

is taken to be a characteristic that appertains generally to persons who have that disability. 

1. A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

   14. Relevantly, discrimination on the ground of disability in education is prescribed by s49L as:

2. It is unlawful for an educational authority to discriminate against a person on the ground of disability-- 

   (a)   by refusing or failing to accept his or her application for admission as a student, or 

   (b)   in the terms on which it is prepared to admit him or her as a student. 

3. It is unlawful for an educational authority to discriminate against a student on the ground of disability-- 

   (a)   by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or 

   (b)   by expelling him or her, or 

   (c)   by subjecting him or her to any other detriment. 

4. Nothing in this section applies to or in respect of-- 

   (a)   a private educational authority, or 

   (b)   a refusal or failure to accept a person's application for admission as a student by an educational authority where the educational authority administers a school, college, university or other institution which is conducted solely for students who have a disability which is not the same as that of the applicant. 

5. Nothing in subsection (1) (a) or (2) (b) renders it unlawful to discriminate against a person on the ground of disability where, because of the person's disability, the person requires services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority. 

6. Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person's disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the educational authority. 

   15. In my view the claim and the available evidence is lacking in substance. It does not establish that Mr van Royden has an arguable case to establish that the University discriminated against him on the grounds of his disability.

   16. I accept that the University’s approach to implementing academic adjustments for students with a disability through a central unit I&DS is reasonable. This does not in my view amount to the University unreasonably refusing to provide adjustments to a student. It is also reasonable for the University, as it is required to do by law, to notify a student about how their personal information will be collected, used and protected. It is reasonable for a student to acknowledge this use.

   17. Mr van Royden has not provided any evidentiary or factual basis to support a finding that he has been treated less favourably, than another student who does not have that disability in the same circumstances, nor that his disability was a basis for any such treatment. Indeed, all students seeking access to I&DS are required to follow the same process and fill out a form. There is no discrimination.

   18. I consider it fair and just to refuse leave because the claim is lacking in substance.

   19. Leave to proceed is refused.

Order

1. Leave for the complaint against the University of Sydney to proceed is refused.

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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: 21 July 2022