Wensley v Technical and Further Education Commission (No. 2)

[2002] NSWADT 68

CITATION:	Wensley -v- Technical and Further Education Commission (No. 2) [2002] NSWADT 68
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Scott Wensley RESPONDENT Technical and Further Education Commission
FILE NUMBER:	991086
HEARING DATES:	27/02/2002
SUBMISSIONS CLOSED:	02/27/2002
DATE OF DECISION:	05/02/2002
BEFORE:	Goode P - Judicial Member; Nemeth de Bikal L - Member; Clayton S - Member
APPLICATION:	Disability Discrimination - Education
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Disability Discrimination Act 1992 (Cth)
CASES CITED:	Wensley v Technical and Further Education Commission [2000] NSWADT 142 Briginshaw v Briginshaw (1938) 60 CLR 336 O'Callaghan v Loder [1985] 3 NSWLR 89 Waters & Ors v Public Transport Corporation (1991-92) 173 CLR 349 Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 Waterhouse v Bell (1991) 25 NSWLR 99 State of NSW (Department of Education) v Human Rights and Equal Opportunity Commission & Anor, Federal Court, 29 August 2001
REPRESENTATION:	APPLICANT A Bateman, barrister RESPONDENT E Brus, barrister
ORDERS:	The complaint is dismissed.

1 In 1997, Mr Wesley was a student enrolled in the Diploma of Community Welfare at the Commission's Blue Mountains College ("the College"). He alleges that the Commission unlawfully discriminated against him, in contravention of s 49L of the Anti-Discrimination Act, 1977 ("the Act"), on the ground that he was presumed to have a disability. He alleges that the Commission presumed he had the disability of paedophilia and / or human immunodeficiency virus ("HIV").

Background to the Complaint

2 The Anti-Discrimination Board ("the Board") received a complaint from Mr Wensley (through his solicitor, Mr Hunter) on 17 October 1997, followed by an amended complaint dated 17 April 1998, alleging that the Commission had unlawfully discriminated against him on the ground that he was presumed to have a disability. Further details of Mr Wensley's allegations, together with a number of annexures, were subsequently forwarded to the Board on 10 June 1998 by Ms Bateman, counsel for Mr Wensley.

3 The Amended Points of Claim subsequently filed with the Tribunal on 18 May 2001 are couched in similar, although not identical, terms to the amended complaint. Relevantly, they allege that senior members of the Commission’s staff discriminated against the Applicant on the ground that he was presumed to have paedophilia and / or HIV by:

· instituting disciplinary proceedings against him;
· excluding him from the College;
· censoring his speech;
· terminating his field placement with the Mid-Mountains Neighbourhood Centre (“the Centre”);
· banning him from having any contact with the Centre;
· arranging for the Applicant’s participation with the Mountains Outreach Community Services (“Outreach”) to be terminated.

4 The President of the Board conducted an investigation into the complaint. What follows is drawn primarily from the material obtained by the President in the course of his investigation. Some of the material lacked precision and was, at times, difficult to follow. Nevertheless, the essential matters are set out below.

5 In or about May 1997, the Commission received complaints from a number of students alleging that the Applicant had made unwelcome and repeated comments (despite being told to refrain from doing so) about his sexual activities as a paedophile. It appears that these alleged sexual activities had occurred in the past. The Applicant is also alleged to have made similar disclosures to some of the Commission’s teaching staff. The students and the staff were reported to be distressed by the comments.

6 According to the Commission, the Applicant did not respond to either written or verbal requests to discuss the allegations with the Head Teacher of Welfare, Ms Goslett. As a consequence, he was notified by letter dated 29 May 1997 from the College’s Acting Director, Ms Marsh, that his actions amounted to alleged breaches of student discipline. He was advised that he had a right of reply. Ms Marsh also informed him that Ms Goslett had advised her that as he had not responded to her requests to discuss the allegations with her, she (ie. Ms Goslett) had:

· terminated his field placement with the Centre and requested that he not have any further contact with it;
· informed Outreach of the alleged disclosures and advised that any further contact with it would be inappropriate.

7 Subsequently, by way of confirmation, the Applicant received a letter dated 29 July 1997 from the College Director, Ms Harris, that the alleged breaches of discipline contravened clauses 4(1)(a) and 4(2)(e) of the Commission’s Student Discipline Regulation (“the Regulation”) and that, accordingly, he had a case to answer. He was also advised that the Regulation did not require the Commission to release the names of the students involved and further, that in the absence of the students’ consent, the Commission was not prepared to do so.

8 In his written reply to the alleged breaches of discipline, the Applicant, through his counsel, Ms Bateman, raised certain alleged procedural irregularities. He maintained that the notices had not been validly served on him and that they did not sufficiently specify the alleged offending conduct. In his reply, the Applicant expressed no view about the substance of the allegations made against him; nor did he do so at any subsequent stage.

9 It is also significant that neither in his reply nor at any subsequent stage has the Applicant made any concession that he is, or ever has been, a paedophile. He has, however, not denied the Respondent's allegation that he had spoken about his activities as a paedophile.

10 On 8 October 1997, the Applicant was found to have committed the alleged breaches of discipline. The Commission found that he had impaired the reasonable freedom of other persons to study or work at the College, in contravention of clause 4(1)(a) of the Regulation. It was also found that he had disregarded a direction from a member of staff, in particular a direction to refrain from causing distress to other students, in contravention of clause 4(2)(e) of the Regulation.

11 As a consequence of the Commission’s findings, the Applicant was advised by letter dated 8 October 1997 that the appropriate penalty was:

· exclusion from the College for a period of 30 days; and
· for a period of 12 months, attendance at classes at the College only in accordance with certain conditions, namely that he not initiate discussions about his sexual practices with other students or staff.

The Applicant was also advised that the penalty would take effect from 9 October 1997.

12 The Applicant appealed against the Commission’s findings and the penalties imposed on him but was unsuccessful. His appeal was dismissed on 21 November 1997.

13 After lodging his complaint with the Board, the Applicant was advised by the Acting President on 6 July 1999 that, pursuant to s.90(1) of the Act, she had decided to decline the part of his complaint which related to his claim that paedophilia is a disability (“the paedophilia complaint”). She stated her reason for doing so in the following terms:

“As well as being a disability, paedophilia is also a criminal act in NSW. As a matter of public policy, the President does not consider that a condition which falls under the Crimes Act should be dealt with by the Board as a disability.”

14 Section 90(1) of the Act provides:

“Where, at any stage of the President’s investigation of a complaint, the President is satisfied that the complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, the President may, by notification in writing addressed to the complainant, decline to entertain the complaint.”

15 The Applicant was advised by the Acting President that she had declined the “paedophilia complaint” by relying on the “for any other reason” limb of s 90(1).

16 The complaint was nevertheless referred to the Tribunal by the President of the Board on 5 August 1999, in accordance with the provisions of ss 91 and 94 of the Act.

Initial Proceedings Before the Tribunal

17 On 1 June 2000, pursuant to s 111(1) of the Act, the Tribunal was asked by the Commission to dismiss that part of the complaint which alleged that Mr Wensley had been unlawfully discriminated against on the ground that he was presumed to have paedophilia. The remaining part of the complaint which alleged that Mr Wensley was unlawfully discriminated against on the ground that he was presumed to have HIV was not the subject of a similar challenge.

18 The Commission’s application originally had two limbs. In essence, it was submitted that:

(1) Paedophilia is not a disability for the purposes of the Act.
(2) If it is, the nature and characteristics of the disability are such that it would be contrary to public policy to provide protection under the Act.

19 However, during the course of legal argument before the Tribunal Ms Brus, counsel for the Commission, conceded that for the purposes of the s 111(1) application, paedophilia was a disability within the meaning of the Act. Accordingly, the argument proceeded solely upon the second limb of the application.

20 In dismissing the Commission's application, we stated at para 33 that given the scope of para (e) of the definition of disability in s 4(1), it may well be that Ms Brus' concession was properly made and that paedophilia is a disability within the meaning of the Act. We went on to say:

"However, we have not had the benefit of appropriate expert evidence on the matter nor of detailed legal submissions. In these circumstances, and in view of the concession made by Ms Brus, it is neither necessary nor appropriate to reach a concluded view on the issue" (Wensley v Technical and Further Education Commission [2000] NSWADT 142).

21 In relation to the second limb of the Commission's application, Ms Brus submitted that since the condition of paedophilia may, depending on the circumstances, amount to a crime, it would be contrary to public policy to provide a person in the position of the Applicant with a remedy under the Act. In declining her submission, we stated at para 37:

"There is no authority to support the proposition that the category 'for any other reason' (which appears in s 111(1) of the Act) includes a public policy consideration of this nature. Although we express no concluded view, even assuming that it does include such a consideration, the Commission's argument contains a fundamental flaw. It assumes that the Applicant has the condition of paedophilia. This is not conceded by the Applicant and has not been established on the material currently before the Tribunal. Accordingly, we do not accept the Commission's submission on this point."

22 When the substantive matter came before us on 27 February 2002 for hearing, Ms Bateman indicated that the Applicant would primarily be relying on the material contained in the President's Report in order to substantiate his complaint. Subject to a number of agreed deletions, the President's Report subsequently became Exhibit A.

23 The only other material relied on by the Applicant in relation to the issue of liability is as follows:

· An Affidavit of Dr Louise Newman, Director of New South Wales Institute of Psychiatry, deposed to on 22 May 2001.
· The American Psychiatric Association's Manual entitled "Diagnostic and Statistical Manual of Mental Disorders', Fourth Edition, 2000 ("DSM-IV").
· A document from the Wentworth Area Health Service dated 19 September 2001 indicating that Mr Wensley is HIV positive.

24 The Applicant himself did not give any evidence before us. That being so, the allegations made against him by the Respondent, which are set out in the President's Report, must, for present purposes, be accepted as unchallenged.

25 Reliance was placed on Dr Newman's Affidavit in order to prove that paedophilia is a disability for the purposes of the Act. While Ms Brus conceded for the purposes of the s 111(1) application that paedophilia is a disability within the meaning of s 4(1) of the Act, she made no such concession at the substantive hearing.

26 We were informed that Mr Hunter had been advised, on about 24 January 2002, of the Respondent's intention to amend the Points of Defence filed on 29 June 2001 so as to reflect this challenge. Ms Bateman submitted that had the Applicant received earlier notification of the Respondent's challenge, he may have sought to rely on material other than the DSM-IV. Ms Bateman further submitted that if we were minded to find that paedophilia is not a disability within the meaning of the Act, the Applicant would seek to have a further opportunity to place additional material on the issue before the Tribunal.

Is Paedophilia a Disability Within the Meaning of the Act?

27 It is the Applicant's case that paedophilia is a disability within the meaning of both paras (a) and (e) of the definition of disability in s 4(1) of the Act.

28 Pursuant to s.4(1) of the Act, “disability” is defined as:

“(a) total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or
(b) the presence in a person’s body of organisms causing or capable of causing disease or illness, or
(c) the malfunction, malformation or disfigurement of a part of a person’s body, or
(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
(e) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.”

29 Section 49A of the Act provides:

“A reference in this Part to a person’s disability is a reference to a disability:
(a) that a person has, or
(b) that a person is thought to have (whether or not the person in fact has the disability), or
(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or
(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).”

30 The DSM-IV is a standardised manual used for diagnostic purposes in Australia by Members and Fellows of the Royal Australian and New Zealand College of Psychiatrists. The following description of paedophilia appears in DSM-IV at p 571:

"The paraphilic focus* of Pedophilia involves sexual activity with a prepubescent child (generally age 13 years or younger). The individual with Pedophilia must be age 16 years or older and at least 5 years older than the child. . . Individuals with Pedophilia generally report an attraction to children of a particular age range. Some individuals prefer males, other females, and some are aroused by both males and females. Those attracted to females usually prefer 8-10-year-olds, whereas those attracted to males usually prefer slightly older children."

* (Paraphilic conditions include pedophilia, exhibitionism, voyeurism, fetishism, sexual masochism and sexual sadism. Each condition has a different focus but involves recurrent intense sexually arousing fantasies, sexual urges or behaviours that occur over a period of at least 6 months.)

31 The diagnostic criteria for paedophilia are set out at p 572 of DSM-IV:

"A. Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviours involving sexual activity with a prepubescent child or children (generally age 13 years or younger).
B. The person has acted on these sexual urges, or the sexual urges or fantasies cause marked distress or interpersonal difficulty.
C. The person is at least age 16 years and at least 5 years older than the child or children in Criterion A.

Note: Do not include an individual in late adolescence involved in any ongoing sexual relationship with a 12- or 13-year-old."

32 In her Affidavit, Dr Newman states that amongst other resources, she relies on the DSM-IV when classifying mental disorders. She also states that amongst other diagnostic resources, she uses the diagnostic criteria provided for in the DSM-IV to diagnose mental disorders. She does not state what other resources she uses to classify and diagnose mental disorders.

33 For the purposes of the present decision, we are prepared to assume that paedophilia is a disability within the meaning of s 4(1) of the Act. However, given our decision to dismiss the complaint, in the absence of full legal argument on the issue we have not found it necessary to reach a concluded view.

Is HIV a Disability Within the Meaning of the Act?

34 The Respondent concedes that HIV is a disability within the meaning of s 4(1). We consider that this concession has been properly made and, accordingly, we find that HIV is a disability for the purposes of the Act.

Section 49L

35 Section 49L provides:

"49L Education
(1) 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.
(2) 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.
(3) 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.
(4) 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.
(5) 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."

36 The Applicant's case is particularised in his Amended Points of Claim, dated 17 May 2001, as follows:

"(c) At all relevant times Karen Harris, Margie Marsh and Chris Marks were employees of the respondent.
(d) At [all] relevant times Karen Harris, Margie Marsh and Chris Marks thought that the complainant had HIV and / or paedophilia, and / or thought that the complainant had paedophilia in the past.
(e) Margie Marsh discriminated against the complainant in instituting disciplinary proceedings against the complainant on the ground of imputedly having HIV and / or paedophilia notified to the complainant by correspondence addressed to the complainant from Margie Marsh dated 29 May 1997.
(f) Karen Harris discriminated against the complainant in excluding the complainant from the Blue Mountains College of TAFE on the ground of imputedly having HIV and / or paedophilia notified to the complainant by correspondence addressed to the complainant from Karen Harris dated 8 October 1997.
(g) Karen Harris discriminated against the complainant in censoring the complainant's speech in a specified way for a specified period on the ground of imputedly having HIV and / or paedophilia notified to [the complainant] by correspondence addressed to the complainant from Karen Harris dated 8 October 1997.

(h) Chris Marks discriminated against the complainant in terminating the complainant's field placement with the Mid-Mountains Neighbourhood Centre on the ground of imputedly having HIV and / or paedophilia notified to the complainant orally by Chris Marks on or about 22 May 1997 and [by] correspondence addressed to the complainant from Margie Marsh dated 29 May 1997.
(i) Chris Marks discriminated against the complainant in banning the complainant from having any contact with the Mid-Mountains Neighbourhood Centre on the ground of imputedly having HIV and / or paedophilia notified to the complainant orally by Chris Marks on or about 22 May 1997 and by correspondence addressed to the complainant from Margie Marsh dated 29 May 1997.
(j) Chris Marks discriminated against the complainant in affecting the termination of the complainant's participation with the Mountains Outreach Community Services on the ground of imputedly having HIV and / or paedophilia notified to the complainant orally by Chris Marks on or about 22 May 1997 and by correspondence addressed to the complainant from Margie Marsh dated 29 May 1997.
(k) Karen Harris treated the complainant less favourably than in the same circumstances, or in circumstances which are not materially different, that Karen Harris would treat a person who Karen Harris does not think is suffering from or has suffered from HIV and / or paedophilia.
(l) Margie Marsh treated the complainant less favourably than in the same circumstances, or in circumstances which are not materially different, that Margie Marsh would treat a person who Margie Marsh does not think is suffering from or has suffered from HIV and / or paedophilia.
(m) Chris Marks treated the complainant less favourably than in the same circumstances, or in circumstances which are not materially different, that Chris Marks would treat a person who Chris Marks does not think is suffering from or has suffered from HIV and / or paedophilia."

37 For convenience, hereinafter we refer to particulars (e) through to (j) as Mr Wensley's allegations. We discuss these in turn in paras 40-90 below.

Standard of Proof

38 In determining whether Mr Wensley has established his case, we have applied the civil standard of proof. However, in doing so, we have taken into account the gravity of the allegations and the serious consequences of any adverse findings to the Respondent. See the remarks of Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 – 362. See also O'Callaghan v Loder [1985] 3 NSWLR 89.

Inquiry Under s 49L(2)

39 It seems clear that the inquiry under s 49L(2) is directed to the ground of the alleged differential treatment afforded to the Applicant. In this regard, even if the Commission had no motive or intention to discriminate, its conduct may still be characterised as discriminatory within the meaning of s 49L(2). This view is consistent with the underlying philosophy of the Act as well as with a significant line of authority : see, for example, the joint judgement of Mason CJ and Gaudron J in Waters & Ors v Public Transport Corporation (1991-92) 173 CLR 349 at 359. See also the comments of Deane and Gaudron JJ in Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 176-177; Waterhouse v Bell (1991) 25 NSWLR 99 at 106.

40 Section 4A of the Act, which came into effect on 8 August 1994, makes it clear that provided Mr Wensley's disability is one of the reasons for the Commission's conduct, the conduct will still be regarded as unlawful even though Mr Wensley's disability is not the dominant or a substantial reason for the conduct.

41 The insertion of s 4A into the Act in 1994 reflects the earlier comments of Clarke JA in Waterhouse v Bell (1991) 25 NSWLR 99 at 106:

"In the event, however, that the Tribunal decides that there are two grounds for the action or decision, one which does and one which does not fall within [the prohibition] then, as it seems to me, a case of discrimination on the ground of marital status will have been made out. That is because less favourable treatment was accorded on the ground, amongst others, of, for example, marital status. The fact that there was another ground for the discriminatory action is, in this context, of no importance."

42 Adopting the approach taken by Clarke JA, we consider that the appropriate issue to be determined is whether the Respondent's conduct was "a real" or "an operative ground" of the alleged differential treatment afforded to the Applicant (acknowledging that it need not be the dominant or a substantial reason for the conduct in question).

43 Ms Bateman submits that the evidence discloses that the action taken against Mr Wensley by Ms Marsh, Ms Harris and Ms Marks (as particularised in the Amended Points of Claim) was on the ground that they each thought (or presumed) that he had HIV and / or was a paedophile or was a paedophile in the past.

44 The Commission disputes this and maintains that there is no causal link between Mr Wensley's alleged disability and the action taken by Ms Marsh, Ms Harris and Ms Marks. In essence, Ms Brus submits that the action taken against Mr Wensley was on the ground of his behaviour not his disability.

45 Whilst acknowledging that it is currently under appeal, Ms Brus relies on the decision of Emmett J in State of NSW (Department of Education) v Human Rights and Equal Opportunity Commission & Anor, Federal Court, 29 August 2001, to support the Respondent's claim that the alleged differential treatment in the present case was made on the ground of Mr Wensley's behaviour. In that case, at para 36, Emmett J drew a distinction between a disability within the meaning of the Disability Discrimination Act 1992 (Cth), on the one hand, and behaviour that might result from or be caused by that disability on the other hand. His Honour went on to say:

"Less favourable treatment on the ground of the behaviour is not necessarily less favourable treatment by reason of the disability. The position might be different in a case where the disability necessarily resulted in the relevant behaviour. That is not the present case. The behaviour of the complainant is not ipso facto a manifestation of a disability within the meaning of the Act nor of any disability of the Complainant within the meaning of the Act."

46 Ms Brus submits that in the present case, Mr Wensley's behaviour was not a necessary manifestation of his alleged disability. In other words, the alleged disability did not necessarily result in the behaviour in question.

47 We now turn to discuss the various allegations particularised in the Amended Points of Claim.

Allegation (e) : The Instituting of Disciplinary Proceedings by Ms Marsh

48 As of 29 May 1997, Ms Marsh was the Acting Director of the College. At the time, the Director, Ms Harris was on leave. Ms Marsh wrote to Mr Wensley on 29 May 1997 confirming that he had told the Head Teacher, Ms Mary Goslett, on 18 May 1997, that he would not be continuing with his studies that semester. Ms Marsh advised him that there were issues of his "alleged behaviours" that had impacted on students and teachers from late April and throughout May that were now the focus of student discipline procedures.

49 Ms Marsh went on to say in her letter:

"During the given conversation [with Ms Goslett] you were invited to meet with the Section heads to discuss issues that were brought to a Teacher's attention on 28/4/97 and were reported to Mary Goslett on 30/4/97. Mary had previously rung you on 6/5/97, when she invited you to come to the College to discuss the matters raised. This invitation was extended to you by letter on the same day, and again by phone on 18/5/97.
You have not taken these opportunities to personally discuss your situation. I am therefore writing regarding the impact of your behaviours towards, interactions with, and disclosures to, students and teachers within the Community Welfare course. As Designated Officer I have investigated reports of your behaviours and deem them to be a breach of the student discipline guidelines of TAFE. Your fellow students and teachers have stated that they feel offended, embarrassed and threatened by your actions. The alleged disclosures of previous paedophile activities, unsafe sexual practices, your HIV status, and bestiality; the manner in which you seem to have made these disclosures; and your subsequent and ongoing behaviour, have been felt to be abusive. Such behaviours constitute alleged harassment.
. . .
I am now formally offering you a right of reply regarding the alleged breaches of discipline. You are provided with a copy of the TAFE Regulations and the Student Brochure for your information and you are asked to either contact the College Manager to arrange a time for a hearing or to make a submission in writing by Friday 6th June."

50 Particulars of the breaches of discipline were set out in Ms Harris' letters to Mr Wensley dated 29 July 1997 and 25 August 1997.

51 In order to understand the relevant circumstances which led to Ms Marsh's letter, it is helpful to set out a chronology of events. The chronology set out in paras 52 – 64 below is taken from the material contained in the President's Report.

52 On 27 April 1997, Mr Wensley allegedly made unwelcome comments about his sexual history to a number of students.

53 On 28 April, these comments were brought to the attention of an unnamed teacher.

54 On 30 April, the comments were reported to Ms Goslett.

55 Mr Wensley was on sick leave from 2 – 16 May 1997.

56 On 6 May, Ms Goslett phoned Mr Wensley and invited him to come to the College to discuss the matter. She also extended the invitation to him by letter of 6 May.

57 On 12 May, Mr Wensley allegedly spoke by telephone to a fellow student regarding his activities as a paedophile who had "fornicated with several children a few years ago". He allegedly made specific and distressing statements to the student about the student's own history, including references to abuse the student had experienced. He also allegedly said to the student, "You were on the receiving end of this sort of thing – how does it feel to hear about it?". These comments were unwelcome and he was advised of this, yet he persisted with the comments (Annexure E, Tab 2).

58 On 18 May, Ms Goslett "directed" Mr Wensley to stop making such statements to students, to stop causing distress to other students and to meet with her on 21 May (Annexure F, Tab 2).

59 Mr Wensley failed to meet with Ms Goslett.

60 On 20 May and 28 May, complaints were made by seven fellow students to Ms Goslett and the Senior Head Teacher that Mr Wensley had been making unwelcome and repeated comments to them about his sexual history and activities, including details of his paedophilia and bestiality, causing distress. Mr Wensley allegedly persisted in making such comments despite having been requested by them to stop doing so. He had allegedly been making such comments since 27 April (Annexures C, E and F, Tab 2).

61 The comments were allegedly viewed by the students as offensive, inappropriate and aggressive. According to Ms Harris, Mr Wensley made these comments to students "who he was aware would be particularly sensitive to such comments due [to] their past history of sexual abuse" (Annexure D, Tab 2).

62 During the period 8 – 29 May, Mr Wensley also allegedly made similar comments to some of the Commission's teaching staff (Annexure C, Tab 2).

63 On 7 June, Mr Wensley was advised not to attend classes until the disciplinary matter had been resolved. He was subsequently notified of this in writing by Ms Marsh on 11 June.

64 Mr Wensley did not attend classes after May and on 6 June withdrew from the College for the remainder of the year.

Counsel's Submissions

65 In her reply to Ms Marsh (Annexure H, Tab 3), Ms Bateman took issue with the Commission's alleged failure to particularise the allegations against Mr Wensley. In maintaining that the allegations did not "sufficiently specify the alleged offending conduct" for a breach of discipline to be established, Ms Bateman submitted the following:

"a. Mr Wensley's conversations which allegedly constituted the disclosures to students and teachers within the Community Welfare course of:
i. paedophile activities,
ii. unsafe sexual activities,
iii. HIV status, and
iv. bestiality
have not been particularised.
b. Mr Wensley's interactions with students and teachers within the Community Welfare course, including the alleged manner in which Mr Wensley seems to have allegedly made the disclosures mentioned in subparagraph a. above, have not been particularised,
c. Mr Wensley's behaviour, including subsequent and ongoing behaviour to the alleged disclosures mentioned in subparagraph a. above, towards students and teachers within the Community Welfare course, has not been particularised, and
d. Mr Wensley's actions which allegedly constitutes the alleged harassment by Mr Wensley has not been particularised."

66 As we understand Ms Bateman's submissions, the Commission's failure to particularise the allegations against Mr Wensley supports the proposition that Ms Marsh instituted disciplinary proceedings against him on the ground of his alleged disclosures as specified in para 65 point a. above ("the disclosures"). In the absence of any particulars, Ms Bateman submits that the alleged disclosures and the other behaviours specified in para 65 points b. to d. are inseparable ("the behaviours"). She further submits that the Commission's principal concern was the disclosures themselves, and that the behaviours simply flowed from these disclosures.

67 Ms Bateman also submits that had the nature of Mr Wensley's alleged conduct not involved the disclosures of his presumed paedophilia and HIV status, the Commission would have complied with the relevant disciplinary procedures instead of reacting "hysterically" by denying Mr Wensley procedural fairness and by summarily excluding him from the College for a period that exceeded the 30 day maximum under the Regulation.

68 In her submissions, Ms Brus refutes the suggestion that either Ms Marsh or any of the College staff reacted "hysterically" to the nature of Mr Wensley's disclosures. She submits that a fair reading of Ms Marsh's letter of 29 May shows that Ms Marsh had been careful to refer to the disclosures as "alleged disclosures" and the behaviours as "alleged harassment". The letter also shows that Mr Wensley had been invited, by phone and in writing, to discuss the matters with Ms Goslett but had not taken up the invitation.

69 Ms Brus further submits that prior to being summarily excluded from the College, Mr Wensley had in fact elected to defer his studies until 1998 and had notified Ms Harris accordingly by letter dated 6 June 1997. In these circumstances, Mr Brus submits that we cannot construe Mr Wensley's exclusion from the College as a detriment.

70 Ms Brus also submits that there is a distinct difference between the alleged disclosures made by Mr Wensley on the one hand, and the fact that these disclosures were made in such a way that they caused the students distress, on the other hand. She refutes Ms Bateman's submission that in the absence of particulars, the alleged disclosures and the alleged behaviours are inseparable.

71 Ms Brus also refutes the submission that had the Commission not over-reacted to the nature of the disclosures, it would have complied with the relevant disciplinary procedures. She concedes that the disciplinary proceedings may have been flawed. However, she submits that there is no evidence before the Tribunal to indicate that anyone else would have been treated any differently to Mr Wensley. In other words, there is no comparator before us to show that this was not the normal way in which the Commission conducted its disciplinary processes. It cannot, she submits, be assumed that simply because the Commission operates under a statutory regime, the disciplinary proceedings are therefore conducted in strict compliance with the Regulation.

72 We find that as of 29 May, when Ms Marsh instituted disciplinary proceedings against Mr Wensley, the evidence discloses the following:

· Complaints had been made by students that Mr Wensley had disclosed details of his previous paedophile activities, bestiality, unsafe sexual activities and HIV status (Annexure A, Tab 2).
· The comments that were made were unwelcome. Mr Wensley was aware of this (Annexure C, Tab 2).
· Mr Wensley was aware that the students concerned would be particularly sensitive to the disclosures due to their past history of sexual abuse (Annexures D and E, Tab 2).
· Mr Wensley continued to make the disclosures despite having been asked by the students to stop doing so (Annexure C, Tab 2).
· The disclosures were also made to certain teaching staff (Annexure C, Tab 2).
· The disclosures and consequent behaviour (namely, Mr Wensley's failure to desist despite having been asked to do so by the students concerned) caused distress and offence to the students and certain teachers (Annexure C, Tab 2).
· Mr Wensley ignored written and verbal requests from Ms Goslett to meet with her to discuss the matter (Annexure C, Tab 2).
· On 18 May, Ms Goslett directed Mr Wensley to stop making the disclosures to other students, and to stop causing them distress. He failed to do so. (Annexure E, Tab 2).
· On 18 May, Ms Goslett also directed Mr Wensley to meet with her on 21 May. He failed to do so. (Annexure E, Tab 2).

73 Having carefully considered the matter, we are not satisfied that the evidence discloses that Ms Marsh instituted disciplinary proceedings against Mr Wensley on the ground that he was presumed to have HIV and / or paedophilia.

74 We do not accept Ms Bateman's submission that the failure to provide Mr Wensley with particulars of the specific complaints supports the proposition that the disclosures and the behaviours are inseparable. Nor do we accept her submission that the Commission overreacted to Mr Wensley's alleged conduct because it involved disclosures of his presumed paedophilia and HIV status; or that the nature of these disclosures was such that Mr Wensley was thereby denied procedural fairness.

75 For present purposes, we are prepared to assume that there were certain procedural irregularities associated with the disciplinary proceedings in that the notices were not served on Mr Wensley in strict compliance with the Regulation. However, we are not satisfied that had the nature of the disclosures made by Mr Wensley (particularly the paedophilia) not been so "highly charged", the Commission would have conducted its disciplinary proceedings any differently.

76 Similarly, we are not satisfied that the Commission's failure to provide Mr Wensley with particulars of the allegations supports the proposition that the disciplinary proceedings were instituted on the ground of the disclosures, as distinct from the behaviours. In circumstances where the complaints were made by the students in confidence, where the Commission was not prepared to breach that confidence, where the Regulation did not require that the identity of the students be disclosed, and where, prior to the decision being made to institute the proceedings, Mr Wensley had declined to discuss the matter with Ms Goslett (despite having been given the opportunity to do so), we draw no inference adverse to the Commission as a result of the failure to provide particulars.

77 We are satisfied that Ms Marsh drew a clear distinction in her letter of 29 May between the disclosures and the behaviours, and stated clearly that it was the behaviours that constituted the alleged harassment.

78 In circumstances where Mr Wensley had been told to refrain from making the disclosures by both the students and Ms Goslett, yet persisted in doing so knowing that they were unwelcome and distressing, and of a sensitive nature to students with a history of sexual abuse, we find that Ms Marsh instituted disciplinary proceedings against Mr Wensley on the ground of the behaviours as distinct from the disclosures. We are satisfied that the behaviours were not a necessary consequence of the disclosures of Mr Wensley's presumed paedophilia or HIV status.

79 Accordingly, we find that allegation (e) has not been substantiated.

Allegations (f) and (g) : The Penalty for the Breaches of Student Discipline

80 By letter dated 8 October 1997, Ms Harris advised Mr Wensley that she was satisfied on the material before her that he had committed two breaches of student discipline (see para 10 above).

81 In the same letter, Ms Harris also advised Mr Wensley that the appropriate penalty, with effect from 9 October 1997, was:

· exclusion from the College for a period of 30 days; and
· for a period of 12 months, attendance at classes at the College only in accordance with certain conditions, namely that he not initiate discussions about his sexual practices with other students or staff.

82 At the time the penalty was imposed, Mr Wensley was not attending the College. He was formally advised by Ms Marsh on 11 June 1997 that he was not to attend classes at the College until the issue had been investigated. However, he had already withdrawn from the College on 6 June for the remainder of the year.

83 Ms Bateman submits that Mr Wensley was summarily excluded from the College for a period that exceeded the 30 day maximum provided for under the Regulation (clause 11(1(f)). She further submits that Ms Harris summarily excluded him on the ground of the disclosures of his presumed paedophilia and HIV status, and that had the disclosures not been of this nature, such an excessive penalty would not have been imposed.

84 We do not accept Ms Bateman's submission. As previously found in relation to Ms Marsh's decision to institute disciplinary proceedings, we are satisfied that the 30 day exclusion was not imposed on the ground of Mr Wensley's presumed paedophilia or HIV status but on the ground of the behaviours.

85 Similarly, in relation to the 12 month ban on initiating discussions about sexual practices, we are satisfied that this penalty was not imposed on the ground of Mr Wensley's presumed paedophilia or HIV status but on the ground of the behaviours.

86 Accordingly, we find that allegations (f) and (g) have not been substantiated.

Allegations (h), (i) and (j) : Termination of Field Placement, Ban on Contact with the Centre, and Advice to Outreach

87 In her letter of 22 May 1997, Ms Marks advised Outreach as follows:

"I am writing to inform you that I am making a complaint of professional and personal behaviours of one of your Committee members Scott Wensley that leads me to believe that his position on your Committee places him and your client group of family and children at risk.
He is making a range of inappropriate disclosures about previous paedophile behaviours in such a way to a range of people – students and teachers at TAFE and to people at large that I believe indicate that he is at risk of self harm and potentially at risk of re-offending. He is certainly harassing a range of people by his way of relating his experiences . . . that I believe make this a matter of urgency and a duty of care on my part as a member of this community and as a manager of TAFE, Health and Welfare Section."

88 In her letter of 29 May 1997, Ms Marsh advised Mr Wensley that:

· His field placement with the Centre had been terminated and that he had been requested not to have any further contact with the Centre.
· Outreach had been advised of his inappropriate disclosures regarding his alleged paedophile activities and that his continued involvement with the organisation would be inappropriate as it is agency that primarily services children and families.

89 Based on the relevant correspondence, we are satisfied that Ms Marks terminated Mr Wensley's field placement with the Centre, and requested that he not have any further contact with it, on the ground of the behaviours, not on the ground that he was presumed to have paedophilia and / or HIV.

90 Similarly, based on the relevant correspondence, we are satisfied that Ms Marks informed Outreach of the matters set out in her letter of 22 May 1997 on the ground of the behaviours, not on the ground that he was presumed to have paedophilia and / or HIV.

91 Accordingly, we find that allegations (h), (i) and (j) have not been substantiated.

Orders

92 The complaint is dismissed.