Western Sydney University v Thiab

The case of *Western Sydney University v Thiab* concerned a challenge brought by a nursing student against Western Sydney University. The student alleged that the university had unlawfully discriminated against him on the basis of his political affiliations, views, or beliefs, contrary to section 35 of the *Western Sydney University Act 1977* (NSW). This provision prohibits the denial of progression within the university on such grounds. The dispute arose after the university cancelled the student's clinical placements and subsequently imposed disciplinary sanctions, following his expression of scepticism regarding the safety and efficacy of COVID-19 vaccination while attending these placements.

The primary legal issues before the Court of Appeal were whether the views expressed by the student constituted "political" views or beliefs within the meaning of section 35 of the Act, and whether the adverse actions taken by the university were motivated by those views. Additionally, the court considered whether the university had afforded the student procedural fairness in relation to disciplinary sanctions imposed after the commencement of proceedings, particularly given that the primary judge had made a declaration concerning their lawfulness without the student having explicitly argued this point.

The Court of Appeal allowed the appeal, setting aside the primary judge's orders. The court reasoned that the student's scepticism about COVID-19 vaccination, in the context of his academic progression and the university's policies, did not amount to "political" views or beliefs as contemplated by section 35 of the Act. The court found that the university's actions were not taken "because of" political affiliations, views, or beliefs. Furthermore, the court determined that the university had not been fairly put on notice that the lawfulness of the later disciplinary sanctions would be a central issue, and therefore, the primary judge's declaration on that point constituted a denial of procedural fairness to the university. Consequently, leave to appeal was granted, the appeal was allowed with costs, and the primary judge's orders were set aside, with the student's amended summons being dismissed with costs.