Wilde v University of Sydney

[2003] NSWADT 206

CITATION:	Wilde v University of Sydney [2003] NSWADT 206
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Taragh Wilde RESPONDENT University of Sydney
FILE NUMBER:	011060
HEARING DATES:	18-19/12/2001, 6-7/05/2002, 13/05/2002, 21/05/2002, 28/08/2002, 22/01/2003
SUBMISSIONS CLOSED:	01/22/2003
DATE OF DECISION:	09/02/2003
BEFORE:	Rees N - Judicial Member; Clayton S - Member; Weule B - Member
APPLICATION:	Transgender - Education - Transgender - Goods and Services
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Births,Deaths and Marriages Registration Act 1995 Inclosed Lands Protection Act 1900 University of Sydney Act 1989
CASES CITED:	Wilde v Day [2002] NSWADT 114, Gardiner v NSW WorkCover Authority [2003] NSWADT 184, IW v City of Perth (1997) 191 CLR 1, Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
REPRESENTATION:	APPLICANT In Person RESPONDENT K Eastman, barrister
ORDERS:	1. Complaint dismissed; 2. Within 28 days of the date of this order the respondent is to file and serve written submissions in support of any application it proposes to make for costs.; 3. Within 14 days of receiving the respondent’s written submissions in relation to costs the applicant is to file and serve written submissions in response

REASONS FOR DECISION

Introduction

1 In this case the applicant, Ms Taragh Wilde, has alleged that the respondent, the University of Sydney, discriminated against her on a number of occasions because she is a transgender person.

2 The applicant has alleged that the discriminatory conduct commenced in the early hours of 23 September 2000 when two University Security Officers, Mr Geoffrey Day and Mr Bradley Evans, assaulted her in the grounds of the University. All of the other conduct of the University that is alleged to constitute unlawful discrimination is linked in some way, according to the applicant, to the events of 23 September 2000. At the time all of these incidents took place the applicant was a postgraduate student in the Department of History at the University.

3 The case was heard by the Tribunal over 8 hearing days extending from 18 December 2001 until 22 January 2003. The applicant was not legally represented and presented her own case. Ms Eastman of counsel represented the respondent. The Tribunal heard evidence from 15 witnesses, eight of whom were called by the applicant and seven by the respondent.

4 After the Tribunal’s inquiry into the complaint had commenced one member, Ms Edwards, determined that it was necessary that she withdraw for personal reasons. With the consent of the parties, the President of the Tribunal exercised the power granted to him by s79(1) of the Administrative Decisions Tribunal Act 1997 (the ADT Act) to replace a member of the Tribunal who is unavailable and, on 6 May 2002, Ms Clayton was appointed to replace Ms Edwards. Ms Clayton had access to the transcripts of the inquiry for 18 and 19 December 2001, which were the dates upon which Ms Edwards sat as a member of the Tribunal.

Background

5 On 23 April 2001 the applicant lodged a complaint under the Anti-Discrimination Act 1977 (the Act) with the President of the Anti-Discrimination Board (the ADB). In this complaint the applicant alleged that various employees of the University discriminated against her on transgender grounds in contravention of sections 38A and 38B of the Act on 23 September 2000, and on a number of subsequent occasions. The President’s report, which was tendered in evidence, reveals that on 12 June 2001 the President exercised the power granted to him by s88(4) of the Act to accept the complaint pertaining to the incident on 23 September 2000 even though it occurred more than six months prior to the date upon which the applicant lodged her complaint with the ADB.

6 The President’s report also reveals that the applicant requested the President not to undertake conciliation. The applicant asked the President to refer the complaint to this Tribunal for adjudication. The Vice-Chancellor of the University indicated in a letter to the President, dated 23 July 2001, that whilst the respondent was prepared to engage in conciliation, it did not oppose the referral to the Tribunal. Consequently, the President referred the complaint to the Tribunal, pursuant to s94(1) of the Act, on 10 August 2001.

7 In accordance with the usual procedures of the Tribunal, the parties were directed to file Points of Claim and Points of Defence and to file their evidence in written form. The applicant filed Points of Claim on 22 October 2001. This document was engrossed by Ms P McDonough, Principal Solicitor, Redfern Legal Centre. Ms McDonough appears to have played no further role in the proceedings and, as we have already noted, the applicant presented her own case at the hearing.

8 The applicant’s Points of Claim contains a narrative of a number of incidents which she alleges constitute unlawful discrimination, rather than a statement of material facts which, if proven, would establish contraventions of the Act. The narrative is followed by references to breaches of various sections in Part 3A of the Act, which deals with discrimination on transgender grounds. Reference was made to s38B (which is the definition of discrimination on transgender grounds), to s38K(2) (which deals with transgender discrimination against a student by an educational authority), and to s38M(b) (which deals with transgender discrimination by a person who provides goods or services). It is not clear from the Points of Claim which sections of the Act the respondent is alleged to have breached in each of the incidents referred to in the narrative.

9 In her Points of Claim the applicant sought the following relief:

(1) A Declaration that the University and its employees or agents unlawfully discriminated against her on September 23 2000 and dates following;

(2) A Declaration that the University security staff be restrained from approaching her unless police are present;

(3) Damages;

(4) Interest;

(5) Costs.

10 On a number of occasions the Tribunal alerted Ms Eastman to the fact that, as the applicant was not legally represented, we proposed to consider, in the course of the inquiry, any contravention of the Act that was reasonably arguable on the basis of the evidence presented. We are satisfied that the respondent received adequate notice of the claims made against it and that all reasonably arguable claims have been considered in these reasons.

11 In its Points of Defence the respondent admitted that the applicant is a transgender person within the meaning of the Act, that it is an “educational authority”, and that the applicant was enrolled as a student of the respondent from 23 September 2000 to 2 December 2000 and from 19 February 2001 to 7 November 2001. All of the incidents referred to in the applicant’s Points of Claim are alleged to have occurred during these two periods.

12 In the Points of Defence the respondent identified seven separate allegations or incidents which it said were referred to in the Points of Claim. We believe that in doing so the respondent fairly and reasonably characterised the applicant’s claims. Consequently, we propose to deal with this complaint as being comprised of seven alleged contraventions of the Act commencing on 23 September 2000 and concluding on 10 April 2001.

13 Those incidents were described by counsel for the respondent in her written submissions as follows: (1) 23 September 2000 on the grounds of the University, (2) 23 September 2000 at Newtown Police Station, (3) 16 October 2000, (4) 6 November 2000, (5) 10 November 2000, (6) 21 November 2000 incident and (7) University investigation into the alleged misconduct.

14 The respondent denied that it had discriminated against the applicant on transgender grounds in relation to any of the seven incidents and it asserted that some of the applicant’s claims fell outside of the Act. The respondent denied that the applicant was entitled to any relief.

15 On 3 December 2001 the applicant filed a further document headed ‘Additions to Points of Claim filed 19 October 2001’. This document contains additional allegations concerning actions by employees of the University, some of which are said to constitute unlawful discrimination. Others appear to have nothing to do with a complaint of discrimination on transgender grounds. The ‘additional’ allegations which may arguably amount to unlawful discrimination on transgender grounds are dealt with as part of the seven incidents identified by the respondent.

16 The issues in dispute between the parties concerning the question of liability were, first, whether any conduct of the respondent towards the applicant fell within sections 38K(2) and/or 38M(b) of the Act and, secondly, whether any conduct which fell within those substantive provisions constituted discrimination on transgender grounds as that concept is defined in s38B of the Act.

17 The respondent is a statutory corporation (see s5 University of Sydney Act 1989). All of the allegations made by the applicant concern conduct by employees of the respondent. In broad terms, s53 of the Act renders an employer liable for actions by its employees if those actions would amount to contraventions of the Act if committed by the employer, unless the employer did not expressly or impliedly authorise the employees to commit those acts. There has been no suggestion by the respondent that it seeks to rely upon the exculpatory portion of s53 by arguing that its relevant employees were acting beyond their authority in their dealings with the applicant. Consequently, we have dealt with this case on the basis that the alleged conduct of employees of the respondent was conduct for which the respondent is legally liable if that conduct would amount to contraventions of the Act if committed by the respondent.

18 Two of the seven incidents referred to by the applicant have been dealt with, wholly or partially, in earlier proceedings. As we noted at [5], the applicant lodged the complaint in this case with the President of the ADB on 23 April 2001. That complaint, which was characterised by the President of the ADB as having been made against the respondent, was referred to the Tribunal for the purposes of an inquiry on 10 August 2001. On 21 February 2002 the President of the ADB referred two related complaints to the Tribunal. Those complaints, which were made by the applicant on 23 April 2001 in the same letter to the President of the ADB as the current complaint, were characterised by the President as complaints of vilification on transgender grounds against Mr Geoffrey Day, an employee of the respondent. The complaints were made against Day personally in relation to some of the events of 23 September 2000 and his actions on 21 November 2000. These complaints were heard and determined by the Tribunal on 7 May 2002. The Tribunal dealt them with as complaints of transgender vilification contrary to s38S of the Act. The complaints were summarily dismissed pursuant to s 111 of the Act. Reasons for that decision were published as Wilde v Day [2002] NSWADT 114.

19 Following the dismissal of the complaints against Day, counsel for the respondent successfully applied to have parts of the applicant’s Points of Claim in this case struck out for it involved claims which had been determined by the decision in Wilde v Day. Those claims related to statements made to police officers by Day at Newtown Police Station on 23 September 2000, and to statements made by him to police officers and court officials at Kogarah on 21 November 2000. These were the incidents referred to as ‘(2) 23 September 2000 at Newtown Police Station’ and ‘(6) 21 November 2000’ at [13] above. As the applicant has also made claims about the conduct of another employee of the respondent, Mr Bradley Evans, in relation to incident (2) at the Newtown Police Station on 23 September 2000, we must deal with those claims against Evans in this decision. As the applicant’s claims concerning incident (6) concerned Day only there is no need to deal with them any further for they were struck out on 7 May 2002 for reasons given orally on that day.

The evidence

20 The applicant called eight witnesses: the applicant herself, Mr James Taylor (the former President of SUPRA), Mr Luke Rowlins (an employee of the respondent), Professor Alfred Steinbeck (a fellow of the Royal Australian College of Physicians), Inspector Stephen Thompson (a police officer), Ms Thalia Anthony (a student at the University of Sydney), Dr Susan Britton (a medical practitioner) and Dr Jennifer Orman (a medical practitioner).

21 The applicant had not prepared a complete statement of the evidence which she wished to give to the Tribunal concerning her complaint. Consequently, she was taken by the judicial member of the Tribunal to the various incidents set out in her Points of Claim, and to the document headed ‘Additions to Points of Claim filed 19 October 2001’, and then asked what she wished to tell the Tribunal about each incident. The applicant was cross-examined by Ms Eastman and she was asked a number of questions by the Tribunal for the purpose of clarifying various parts of her evidence.

22 We consider the following parts of the applicant’s evidence to be significant. At the time the events in this case took place the applicant was enrolled as a student in the Master of Arts degree program at the University of Sydney and she was living in University premises, Selle House, in Parramatta Road, Glebe.

23 First incident – 23 September 2000 on the grounds of the University: The applicant stated that at approximately 1.15am on 23 September 2000 she walked across the grounds of the University. She had spent the evening with friends at a hotel in Redfern and then walked from the hotel to her home in Glebe. She walked across the University grounds because it was the quickest way to get to her home in Glebe. The applicant believed that because she was a student at the University she was entitled to walk across the University grounds at this time. She had done so on many occasions in the past. After using the toilets in the main quadrangle of the University she heard somebody call out to her “Hey you” and then another person said: “Have you been masturbating in the toilets?”

24 The applicant stated that she did not turn to look at the people who had spoken to her but continued to walk through the University towards the footbridge which crosses Parramatta Road. She stated that she did not know who these people were but thought they may be “a couple of the hooligans from St Andrews College or somewhere like that”. When she was near the footbridge she was grabbed on the arm by a person who she now knows to be Mr Bradley Evans who said: “You’re going to tell us what you’re doing here, if you don’t we’re going to call the police”. At this stage the applicant attempted to walk across the footbridge but a person she now knows to be Mr Geoffrey Day “shoved me back from the footbridge on to the campus and they both started to man-handle me”. The applicant stated that she then “kicked Day in his groin with my left foot and at that point they laid in to me”. The applicant stated that she was forced to the ground and held down. She heard Evans say into his two-way radio: “We don’t know what gender it is”. Shortly afterwards Day said: “Let’s see whether the thing’s got a dick or not”. She stated that Day then forced her legs apart and stood on her legs until the police arrived approximately 25 minutes later. At some stage whilst she was being held on the ground another person who she now knows to be Mr Luke Rowlins arrived at the scene.

25 The applicant stated that as a result of this incident she sustained the following injuries: “a dislocated shoulder, having the back of my scalp torn off, extensive bruising and lacerations and a fractured dental plate”. She stated that she also suffered “fairly massive psychological damage”.

26 In cross-examination the applicant stated that she had consumed a bottle of wine, a whisky and a beer whilst at the hotel in Redfern on the evening prior to this incident. During the course of the evening she had a meal. She stated that she commenced drinking at the hotel at around 8pm and left at around 12.15am on 23 September 2000 when the hotel closed. The applicant stated that in her opinion she was “stone cold sober” by the time the incident involving Evans and Day occurred.

27 Second incident – 23 September 2000 at Newtown Police Station: The applicant’s evidence in relation to this incident concerned drawing the Tribunal’s attention to a statement made to the police by Evans at Newtown Police Station on 23 September 2000 concerning the events which took place on the University campus in the early hours of the morning. Evans’ statement formed part of the report of the President of the ADB, which was tendered in evidence. The applicant complained about the fact that Evans referred to her in this statement as a “transsexual” and that he made repeated references to her as “the person”.

28 Third incident – 16 October 2000: The applicant stated that at approximately 11.35am on 16 October 2000 she was walking in Abercrombie Street, Redfern when a motor vehicle which she described as a “University security car” drove past her. The passenger leaned out of the window and shouted at her: “We’re looking for you, you fucking faggot”. The applicant stated that the car was a white station wagon with the registration number WDC 205. The applicant did not know the name of the person who shouted at her but said that he was a man of approximately 35 to 40 years of age who was wearing a light blue shirt with an insignia on it. The applicant stated that she later saw this man on the University campus wearing a security officer’s uniform.

29 Fourth incident – 6 November 2000: The applicant stated that she was asleep in her University flat at 10/28 Parramatta Road, Glebe when she awoke at approximately 2am to find a University security officer who she now knows to be Mr Angus Fergusson in the flat. The applicant stated, “I just went into a state of complete and utter hysteria. I make absolutely no bones about that because I recognised the uniform immediately”. The applicant stated that Fergusson did not identify himself, but in cross-examination she agreed that Fergusson said: “I’ve let myself in because we’ve had a complaint about the noise keeping the other residents awake”. According to the applicant Fergusson left the flat after a conversation with her. On the way out he said: “You won’t be living here for much longer”. After he left she noticed that her wardrobe had been opened. Items of clothing had been disturbed and books on transgender issues were on the floor. The applicant stated that she had consumed 10 standard measures of alcohol (wine and spirits) on the day prior to this incident but claimed she was “stone cold sober” by the time she went to sleep at approximately 11pm on 5 November 2000.

30 In her ‘additional allegations’ claims that two members of security staff, Fergusson and Mr Peter Boswerger, discriminated against her on transgender grounds when making security incident reports about the events of 6 November 2000. It was claimed that both Fergusson and Boswerger referred to the applicant as “he/she” in their reports and that Fergusson wrote in his report, “looked like a male but was wearing women’s clothing”.

31 Fifth incident – 10 November 2000: The applicant stated that a meeting was arranged at the University to discuss the fourth incident concerning the allegation of loud noise at her University flat on 6 November 2000. Ms Ruth Miller and Ms Sarah Heesom represented the University at that meeting. Two representatives of the Postgraduate Students’ Association, Mr James Taylor and Ms Thalia Anthony, attended the meeting at the applicant’s request. According to the applicant, Heesom stated during the course of the meeting that she (Heesom) had been informed by the head of University Security, Mr Eric Wessels, that the applicant was not to set foot on University grounds after dark because Wessels could not guarantee the applicant’s safety at the hands of his own security staff.

32 Sixth incident – 21 November 2000: This incident concerns statements made by Mr Day to police officers and court staff at Kogarah on that day. As noted at [18], the incident was the subject of a separate complaint against Day which was dismissed on 7 May 2002 in the proceedings titled Wilde v Day [2002] NSWADT 114. This part of the applicant’s complaint against the University was struck out on 7 May 2002.

33 Seventh incident – University investigation into the alleged misconduct: It is not in dispute that the applicant received a letter from the University Registrar, Dr William Adams, on 10 April 2001 advising that the University proposed to take action against her under its by-law for misconduct in relation to the incident on 23 September 2000 involving Evans and Day.

34 Mr James Taylor, the former President of the Sydney University Postgraduate Representative Agency (SUPRA), gave evidence in relation to the fifth incident, the meeting at the University with Ms Miller and Ms Heesom on 10 November 2000. He was present at this meeting in his capacity as an officer of SUPRA to support the applicant. It was his recollection that the meeting was called to deal with allegations made to the University by the applicant concerning incidents involving the applicant and security staff. Taylor stated that he recalled Heesom telling the applicant that she (Heesom) had been informed by the head of University security that he had instructed his staff not to approach the applicant, or have anything to do with her, after nightfall on the University campus. Taylor stated that he recalled the applicant saying at one stage during this meeting: “If security come near me it will be burn baby, burn”.

35 Ms Thalia Anthony also attended this meeting, in her capacity as an officer of SUPRA, to support the applicant. According to Anthony, Heesom told the applicant not to enter the campus at all at night because of concerns about security.

36 Mr Luke Rowlins, a security officer at the University, gave evidence in relation to the first incident. He stated that in the early hours of 23 September 2000 he was on duty in the security office at the University when he received a radio message from Evans to provide assistance near the footbridge. When he arrived at the scene he saw Evans and Day struggling on the ground with a person he now knows to be the applicant. Rowlins stated that he was asked to assist in restraining the applicant. He did so until the police arrived. He agreed that at some stage he restrained the applicant by holding her hair. He denied causing any injuries to her scalp and stated that he observed no injuries to the applicant when the police took her away.

37 Rowlins gave evidence about his understanding of rights of access to the University campus and the practices adopted by security staff. He stated that members of the public were generally permitted to cut through the campus if they gave that reason when asked to explain their presence, and if they actually proceeded to walk across the campus.

38 Inspector Stephen Thompson is a police officer attached to Newtown Police Station. He gave evidence in order to identify video recordings of the applicant at Newtown Police Station on 23 September 2000 and to explain how those videos were compiled. He also identified written entries in the police computer (COPS) concerning police involvement in the incident on 23 September 2000 and the subsequent charges which were laid against the applicant.

39 Professor Alfred Steinbeck is a medical practitioner who specialises in endocrinology. He stated that he had been the holder of a clinical professorial position. He had had “some 35-40 years clinical experience of transgender females”. Professor Steinbeck stated that the applicant had been under his care since September 1997. He produced a report in which he outlined the treatment he had given the applicant. Professor Steinbeck recorded that he had seen the applicant in February 2001 when she reported the injuries which she sustained on 23 September 2000. At the time the applicant was distressed and she suffered from “increasing panic disorder” and “increased irritable bowel syndrome”. Professor Steinbeck described the applicant as a person of “integrity” who had “suffered at the hands of those less intelligent, less understanding and plainly disparaging”.

40 Dr Susan Britton is a medical practitioner who works at the University Health Service. She is not employed by the University but provides the services of a general practitioner to the University community as an independent contractor. Dr Britton saw the applicant as a patient on 29 September 2000 and observed the following: injury to applicant’s left shoulder which restricted movement, a 4cm scalp laceration, bruising to the face, throat, right knee and left hand, a fractured upper dental plate and emotional shock. Dr Britton stated that “the injuries were consistent with the patient’s history of being thrown to and held on the ground”.

41 Dr Jennifer Orman is also a medical practitioner working at the University Health Service. Like Dr Britton she is not an employee of the University. Dr Britton has postgraduate qualifications in psychological medicine. She gave evidence about the treatment she had provided to the applicant for anxiety and depression from the time she first saw her on 20 June 2000 until 24 September 2001 when the doctor/patient relationship ceased. She stated that she felt the applicant abused alcohol.

42 The respondent called evidence from seven witnesses: Ms Sarah Heesom, Ms Ruth Miller, Mr Gerrit (Eric) Wessels, Mr Angus Fergusson, Mr Geoffrey Day, Mr Bradley Evans (all employees of the respondent) and Constable George Zisopoulos (a police Officer).

43 Mr Geoffrey Day, a security officer employed by the respondent, gave evidence in relation to the first incident. He stated that he and Mr Bradley Evans were on duty at the main University campus in the early hours of 23 September 2000. Evans was the senior officer. They had been instructed to pay attention to numerous parts of the campus, including the toilets in the main quadrangle. Illicit drug use and the dangers associated with used syringes were problems in this part of the campus.

44 Day stated that he saw a person he now knows to be the applicant emerge from those toilets at approximately 1.35am. In his University Security Incident Report, written a few hours after the incident, Day referred to the person he had observed as “a large male person of transsexual appearance”. Day stated that Evans informed the applicant that they were from University security and he (Evans) asked her to produce identification. As the applicant did not respond they followed her through the University grounds towards the Parramatta Road footbridge with Evans continuing to ask for identification. According to Day, the applicant turned without warning and kicked him twice, making contact with his right thigh and stomach. Day said that Evans radioed for help. He and Evans then forced the applicant to the ground and restrained her until Rowlands arrived to provide assistance. Around that time the applicant spat in Day’s face.

45 Day stated that he, Evans and Rowlands restrained the applicant on the ground until Constables Howell and Zisopoulos arrived. Those police officers put handcuffs on the applicant, placed her in the back of the police van and drove away. Day denied that he and Evans used any of the language attributed to them by the applicant. In particular, he denied saying “Let’s see whether this thing has a dick or not”. He also denied attempting to pull the applicant’s legs apart when she was on the ground.

46 Mr Bradley Evans, a security officer at Sydney University, also gave evidence in relation to the first incident. Evans stated that he had been employed by the respondent as a security officer for 6 years. There is no point in setting out Evans’ evidence in detail for it is essentially the same as that given by Day. Evans stated that as the applicant approached the Parramatta Road footbridge he said to her: “I want you to understand not to return to the campus until you are prepared to show us some identification”. It was at this time that the applicant turned and kicked Day.

47 In his statement to the police, made shortly after the altercation, Evans described the applicant as “transsexual, about 190cm tall, thin to medium build, about 75kg, with shoulder length wavy blonde hair.” Evans stated that he did not form the belief that the applicant was a transgender person until he was asked by police to provide a description. At the time he and Day followed the applicant, and at the time the altercation took place near the footbridge, he did not know or believe that the applicant was a transgender person.

48 Both Day and Evans had made a number of written statements about the first incident. They made statements to the police, they prepared detailed written Security Incident Reports for the University, and they prepared statements for these proceedings. They also made oral statements to Dr Greg Tillett, who was engaged by the University as an external consultant to investigate this and other incidents concerning the applicant and University security staff. Dr Tillett’s report, which contained summaries of the information provided by Evans and Day, was tendered in evidence. There were no discrepancies of any note in the various statements made by Evans and Day about this incident.

49 Mr Angus Fergusson, who worked as a security officer for the University from 1992 to 2001, gave evidence in relation to the fourth incident which occurred at University residential accommodation, Selle House, in Parramatta Road, Glebe on 6 November 2001.

50 Fergusson said that he went to Selle House in the early hours of the morning in response to a call complaining about loud music coming from Unit 10. He stated that he knocked on the door on numerous occasions and yelled out that he was from University security. As there was no response he let himself in to Unit 10 with a master key. Security officers were instructed that they had permission to enter University premises if they held reasonable concerns about the safety of an occupant. Fergusson saw a stereo unit in the unit and turned the music off. He then saw a person he now knows to be the applicant lying asleep on the floor. Fergusson attempted to wake the applicant by calling to her and by touching her on the foot and the shoulder. After approximately a minute the applicant woke up. Her first words were: “What the fuck do you want?” Fergusson stated that the applicant identified herself as “a lecturer at the Uni”. She refused to produce identification and said on a number of occasions, “fucking get out”. Fergusson stated that he told the applicant to keep the music down and told her: “If we get another complaint I will come back with the police”. The applicant responded by calling Fergusson a “fucking cunt” and a “fucking cocksucker”. Fergusson then left the unit. He denied interfering with any of the applicant’s belongings.

51 Ms Ruth Miller, the respondent’s Manager of Welfare and Disability Services, gave evidence in relation to the fifth incident. Miller stated that she first met the applicant in August 1999. At this time the applicant sought some assistance from Miller. It was Miller who arranged accommodation for the applicant in Selle House in July 2000. On 7 November 2000 Miller was informed by Mr John Barrett, the University’s Property Manager, about the incident at Selle House the previous day involving the applicant and Security Officer Fergusson. Barrett also mentioned complaints by fellow students at Selle House concerning the applicant’s behaviour.

52 On 9 November 2000 Miller attended a meeting with Barrett, Mr Eric Wessels (General Manager, Security Services), Mr Neville Bavister (Patrol Manager, Security Services), Ms Christine Marshall (Property Officer) and Ms Sarah Heesom (Director, EEO Unit) to discuss the respondent’s response to incidents at Selle House involving the applicant. Barrett informed the meeting that the University was considering terminating the applicant’s tenancy of her Selle House unit. In addition to the incident involving Fergusson, students and their parents had been complaining about the applicant’s behaviour at Selle House. Miller stated that both she and Heesom indicated that the allegations should be raised with the applicant before further action was considered.

53 The following day, 10 November 2000, Miller and Heesom met the applicant in her (Miller’s) office. Taylor and Anthony from SUPRA were also present at the meeting. The applicant produced a written statement, addressed to the Vice-Chancellor, about the first, third and fourth incidents. Miller stated that she informed the applicant that the purpose of the meeting was to discuss the applicant’s tenancy at Selle House. During the course of the meeting the applicant said: “Security staff are not to come near me. If they do it will be a case of burn baby, burn”. Miller denied that Heesom informed the applicant not to set foot on University grounds after dark because the head of security could not guarantee her safety at the hands of his own officers.

54 Ms Sarah Heesom, the Director of Staff and Student Equal Opportunity at the University, gave evidence about the fifth and seventh incidents. Heesom attended the same meeting as Miller with University security and property officials to discuss the applicant’s Selle House tenancy. Heesom records this meeting as having taken place on 7 November 2000, whereas Miller stated that it took place on 9 November. Her account of the reasons for this meeting, and its contents, were essentially the same as those given by Miller.

55 Heesom also attended the meeting on 10 November 2000 with the applicant, Miller, Taylor and Anthony. At that meeting the applicant produced a document, written to the University’s Vice-Chancellor, in which she complained about the first, third and fourth incidents. This appears to have been the first occasion upon which the applicant lodged a complaint with anyone associated with the University about these incidents.

56 Heesom denied having told the applicant at that meeting that she was not to set foot in the University grounds after dark because the head of security could not guarantee her safety at the hands of his own officers. Heesom said that she used the following words in a conversation with the applicant: “I have also spoken to the Head of Security Services and asked him to keep his people well clear of you. But, if you don’t want to risk running into anyone from Security, it might be a good idea for you to consider staying clear of the campus at night.”

57 At this meeting Heesom informed the applicant that the University would engage an independent consultant, Dr Greg Tillett, to investigate her allegations concerning security officers. Shortly after the meeting Dr Tillett was engaged to investigate the applicant’s claims in relation to the first, third and fourth incidents. Dr Tillett submitted three separate reports to the Vice-Chancellor concerning these incidents. In each instance he concluded that the applicant’s allegations could not be substantiated.

58 Heesom stated that after Dr Tillett’s reports had been received and the findings notified to the applicant, the Vice-Chancellor directed the Registrar to investigate the possibility of alleged misconduct proceedings against the applicant. On 10 April 2001 the Registrar informed the applicant in writing of a misconduct allegation arising from assaults by her upon Evans and Day during the first incident. As the applicant advised the Vice-Chancellor that she denied the allegation, it was referred to a Student Proctorial Board for hearing in accordance with University By-Laws.

59 Mr Gerrit Jan (Eric) Wessells, the respondent’s General Manager of Security Services, gave background evidence in relation to the first, third, fourth and fifth incidents. Wessels stated that security officers had been instructed to pay attention to the main quadrangle because there had been numerous incidents in that area. He stated that the main campus of the University is private property. Because of its geographic location many people, who have no direct association with the University, cross the campus as part of daily life. Wessels said “the University permits that sort of casual access but it’s an implied invitation for people to enter and the understanding is that when people do come onto the campus that they’ll act lawfully while they’re there and observe University protocols and generally behave in [a] way that won’t interfere with the good order and running of the University”. According to Wessels, security officers were encouraged to issue routine challenges to people for identification because “the campus is the victim of a significant amount of crime”. Students of the University are usually permitted access to the grounds of the main campus every day at all times.

60 Wessels stated that security officers “have the authority to enter premises owned by the University which provides student accommodation…if reasonable fears are held for the occupant’s safety or welfare”. Wessels stated that in October 2000 the University owned a vehicle registered WDC 205. His enquiries revealed that this vehicle was doing a “cash in transit” job at the time the third incident is alleged to have occurred. Wessels denied having ever told Heesom that the applicant should stay away from the campus after dark because he could not guarantee her safety at the hands of his own officers.

Issues of law

61 In every complaint of unlawful discrimination the Tribunal must first determine whether the impugned conduct of the respondent falls within a substantive provision, or prohibition, in the Act and, if that question is answered in the affirmative, then determine whether the respondent’s conduct towards the applicant constituted unlawful discrimination as that concept is defined in the Act. In order to determine this complaint we must consider each of the seven incidents referred to by the applicant in this manner.

62 As we have already noted, the applicant has not specified which particular substantive provision or prohibition in the Act was breached in relation to each of the seven incidents where she claims that the respondent unlawfully discriminated against her on transgender grounds. The applicant has referred generally to sections 38K(2) and 38M(b) of the Act. Consequently, it is necessary for the Tribunal to determine whether either or both of these substantive provisions govern each of the seven incidents which constitute the applicant’s complaint.

63 Section 38K(2) states:

It is unlawful for an educational authority to discriminate against a student on transgender grounds:

(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.

The respondent has admitted that it is an “educational authority” and that the applicant was a “student” enrolled at the educational authority at the time all of the incidents referred to in paragraph [13] occurred.
64 In this case the meaning of the term “benefit” in s38K(2)(a) of the Act is significant. There is no reason why it should be given anything other than its ordinary meaning, which is advantage or opportunity (see Gardiner v NSW WorkCover Authority [2003] NSWADT 184). In the circumstances of this case it may be fairly argued that a “benefit” provided by a university to its students is permission to use facilities, such as outdoor areas, at all times unless expressly prohibited. Often, university grounds are beautiful places with well-maintained lawns and gardens. It is common knowledge that the grounds of the main campus of the University of Sydney are such a place. Most people would regard it as a “benefit” associated with university education for a student to have access to these facilities, even at times when libraries, laboratories and lecture theatres are closed. Accordingly, we see no reason why access to university grounds cannot be taken to fall within s38K(2)(a) of the Act.

65 Section 38M of the Act states:

It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on transgender grounds:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which the other person is provided with those goods or services.

Whether or not the circumstances of this case fall within s38M(b), as the applicant has alleged, depends upon whether the respondent is a provider of “services”. The respondent has denied that it is a person who provides “services” within the meaning of s38M.
66 The term “services” is defined in s4 of the Act as follows:
services includes:
(a) services relating to banking, insurance and the provision of grants, loans, credit or finance,

(b) services relating to entertainment, recreation or refreshment,

(c) services relating to transport or travel,

(d) services of any profession or trade,

(e) services provided by a council or public authority

(f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.

The use of the word “includes” in this definition means that it is not an exhaustive statement of what constitutes “services” for the purposes of s38M(b).
67 When construing anti-discrimination statutes courts and tribunals have consistently taken a broad view of those parts of the legislation which render it unlawful for those who provide “services” to discriminate against people on various grounds. As members of the High Court observed in IW v City of Perth (1997) 191 CLR 1, the reach of statutory prohibitions against discriminatory behaviour ought not be limited by a narrow and technical approach when determining the service providers to whom the law applies ( see e.g . Dawson and Gaudron JJ at 22-23).

68 The meaning of the term “services” in the equivalent West Australian legislation was a key issue in the High Court’s decision in IW v City of Perth (1997) 191 CLR 1. All members of the High Court concluded that the term should be read expansively. The respondent has advanced no reason why we should not take the same approach in this case.

69 Paragraph (f) of the definition of “services” in s4 of the Act refers to access to any place that the public, or a section of the public, is entitled or allowed to use for payment or not. This part of the statutory definition clearly includes places such as parks, beaches, sporting stadiums, halls, theatres and shopping centres. No distinction is made between publicly and privately owned places or facilities.

70 We conclude from the evidence in this case that the grounds of the main campus of the University of Sydney fall within paragraph (f) of the definition of “services”. Whilst the respondent maintains, as it is entitled to do, that its grounds are not a public place and that it considers itself able to invoke the provisions of the Inclosed Lands Protection Act 1900, or the common law rights of a land owner, when confronted by a person who has no lawful right to be upon University grounds, the evidence was that entrances to the campus are not locked or otherwise barred and that, at the time the events in this case took place, members of the public were allowed to walk across the grounds so long as they did so without acting in a manner which indicated that they may abuse the privilege of being permitted access to the campus. Accordingly, we propose to deal with this complaint on the basis that the respondent was a person who provided services within the meaning of s38M in so far as it permitted or allowed members of the public to have access to the grounds of its main campus.

71 If the applicant establishes that the actions of which she complains falls within either sections 38K(2)(a) or 38M(b) of the Act, or both of them, it is necessary for her to prove that in so acting the respondent discriminated against her on transgender grounds in order to ultimately succeed in her complaint. Discrimination on transgender grounds is defined in s38B of the Act as follows:

(1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on transgender grounds if, on the ground of the aggrieved person being transgender or a relative or associate of the aggrieved person being transgender, the perpetrator:
(a) 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 he or she did not think was a transgender person or who does not have such a relative or associate who he or she did not think was a transgender person, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not transgender persons, or who do not have a relative or associate who is a transgender person, 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, or

(c) treats the aggrieved person, being a recognised transgender person, as being of the person’s former sex or requires the aggrieved person, being a recognised transgender person, to comply with a requirement or condition with which a substantially higher proportion of persons of the person’s former sex comply or are able to comply, being a requirement or condition 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 being transgender if it is done on the ground of the person being transgender, a characteristic that appertains generally to transgender persons or a characteristic that is generally imputed to transgender persons.
72 It becomes apparent from a close reading of s38B that it deals separately with discrimination against a “transgender person” and discrimination against a “recognised transgender person”. Section 38B(1)(a) deals with direct discrimination against a transgender person and s38B(1)(b) deals with indirect discrimination against a transgender person. Section 38B(1)(c) deals with indirect discrimination against a recognised transgender person. It also incorporates within the concept of discrimination on transgender grounds, treating a recognised transgender person as being a person of his/her former sex.

73 Section 38A of the Act is perhaps best described as a description of the people who are afforded protection by Part 3A of the Act rather than as a definition of “transgender person”. It states:

A reference in this part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person:
(a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or

(b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or

(c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,

and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.

Thus, a transgender person falls within this statutory description whether or not that person is a recognised transgender person.
74 The term “recognised transgender person” is defined in s4 of the Act to mean “a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 or under the corresponding provisions of a law of another Australian jurisdiction”. In this case, as we have noted at [8] and [11], the applicant has claimed that she is a “transgender person” and the respondent has admitted this claim. The applicant has not claimed that she is a recognised transgender person and there was no evidence before us which suggests that the applicant is a person who falls within the statutory definition of “recognised transgender person”. Consequently, we cannot consider whether any conduct of the respondent transgressed s38B(1)(c) of the Act for that part of the definition is concerned only with discrimination against a recognised transgender person.

75 The applicant has not argued that anything done by the respondent in relation to the seven incidents which constitute this complaint amounted to indirect discrimination. In our opinion no issue of indirect discrimination arises from the evidence. Consequently, there is no need to deal with s38B(1)(b) of the Act. No reliance has been placed on the ‘characteristics extension’ in s38B(2) and nothing arises from the evidence which causes us to consider it.

76 The applicant’s case has been conducted on the basis of a claim of direct discrimination, which is defined in s38B(1)(a). Accordingly, in the circumstances of this case, the Tribunal is required to consider the following question: did the respondent, on the ground that the applicant is a transgender person, treat the applicant less favourably than it treated, or would have treated, a person who is not a transgender person in the same circumstances, or in circumstances which were not materially different? (see Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5).

Conclusions

77 In this part of the decision we have applied the relevant law, as we have stated it at [61] to [76], to our findings of fact concerning the seven incidents which comprise this complaint.

First incident – 23 September 2000 on the grounds of the University

78 This incident sits at the core of the applicant’s complaint for she has claimed that all of the later incidents are related to the events which occurred on the University main campus in the early hours of 23 September 2000. The Tribunal received evidence about this incident from the applicant and two members of the respondent’s security staff, Mr Geoffrey Day and Mr Bradley Evans. A third member of the respondent’s security staff, Mr Luke Rowlands, who was called as a witness by the applicant, gave evidence about what he observed after arriving at the scene of the initial incident involving the applicant, Day and Evans. It was not in dispute that the applicant was arrested by police and conveyed to Newtown Police Station shortly after the incident occurred. The respondent called one of the arresting police officers, Constable George Zisopoulos, to give evidence. Police video tapes of activities in the cells at Newtown Police Station on 23 September 2000 were tendered in evidence.

79 There is considerable conflict in the evidence concerning this incident. In brief, the applicant contends that she was walking through the main campus of the University in the early hours of 23 September 2000 when she was followed and verbally abused by two people who she did not know were University security officers. When nearing the footbridge which crosses Parramatta Road she was physically stopped by a person she now knows as Evans. As she feared that these people (Evans and Day) would assault her, she took pre-emptive action by kicking one of them. Thereupon a melee took place during which Day abused her because he recognised her as a transgender person. The applicant stated that Day spread her legs apart and said: “Let’s see whether this thing has a dick or not”. If this occurred it was a serious sexual assault.

80 Day and Evans gave a very different account of this incident. In brief, they said that they were on duty as security officers in the early hours of 23 September 2000. After they observed the applicant on the grounds of the University they followed her and asked her questions concerning her identity and reasons for being on the campus at the time. They denied abusing the applicant or giving her any reason to fear attack. They stated that the applicant committed an unprovoked attack upon Day which caused them to restrain her and call for assistance from other security staff and the police. They denied abusing the applicant or taking further action than was needed to restrain her. They also denied the alleged sexual assault. Both Day and Evans stated that at the time of the incident they did not know that the applicant was a student at the University. Evans stated that he did not know the applicant was a transgender person, whereas Day said he suspected that the applicant might have been a transgender person from the time he first observed her emerging from the toilets in the main quadrangle at the University.

81 If the applicant’s evidence is accepted the circumstances of this incident may fall within either, or both, s38K(2)(a) and s38M(b) of the Act. The respondent recognised this possibility and made submissions in relation to both provisions. In order to bring the circumstances of this incident within s38K(2)(a) of the Act, which renders it unlawful for an educational authority to discriminate against a student on transgender grounds by denying or limiting that student’s access to a benefit provided by the educational authority, it is necessary for the applicant to prove a number of matters. These elements or matters are: (1) the respondent is an educational authority, (2) the applicant was at the time a student of the educational authority, (3) the employees of the educational authority against whom the allegations are made either knew, believed or should have reasonably known that the applicant was a student, (4) the respondent is legally liable for the relevant actions of its employees, (5) those employees did something to the applicant which amounted to denying or limiting her access to a benefit provided by the educational authority to its students, and (6) that in so acting the employees of the respondent discriminated against the applicant on transgender grounds.

82 As we understood the case conducted by the respondent elements (1), (2) and (4) were not in dispute. The respondent accepted that it is an “educational authority”, that on 23 September 2000 the applicant was a student at the University, and that Day and Evans were acting in a way authorised by the respondent when the incident occurred. The respondent contends that element (3) was not proved for at the time Day and Evans did not know that the applicant was a student. Consequently, according to the respondent, there was no need to consider elements (5) and (6) but, in the event that they are considered, element (5) was not met because the actions of Day and Evans did not amount to denying or limiting a student’s access to a benefit and element (6) was not met because the actions of Day and Evans did not amount to discrimination on transgender grounds.

83 In order to bring this incident within s38M(b) of the Act, which renders it unlawful for a person who provides services to discriminate against another person on transgender grounds in the terms on which it provides services to that person, it is necessary for the applicant to prove a number of things. Those elements or things are: (1) the respondent was a service provider, (2) the applicant was a person to whom those services were provided, (3) employees of the respondent did something to the applicant concerning the terms upon which the respondent provided services to the applicant, (4) in so acting those employees discriminated against the applicant on transgender grounds and (5) the respondent is legally responsible for the relevant actions of its employees.

84 As we understood the case conducted by the respondent, only element (5) was not disputed. The respondent contended that it was not a service provider and that, consequently, it was unnecessary to further consider s38M(b). Nevertheless, the respondent submitted that nothing done by its employees to the applicant on 23 September 2000 amounted to discrimination on transgender grounds in relation to the terms upon which any services were provided to the applicant.

85 We do not accept the applicant’s version of what took place at the University’s main campus on the morning of 23 September 2000. In particular we do not accept the applicant’s contention that Evans and Day impeded the applicant’s progress across the footbridge thereby provoking the altercation which followed, and nor do we accept the applicant’s assertion that Day spread her legs apart when she was on the ground and then said: “Let’s see whether this thing has a dick or not”.

86 There many reasons which, when considered together, have led to the conclusion that we should reject the applicant’s account of this incident. We did not find the applicant to be a reliable witness. There were a number of matters which caused us to make this assessment. First, we believe that the applicant’s judgment and memory were highly likely to have been clouded by the amount of alcohol which she had consumed on that evening. The applicant’s rejection of the suggestion that she could consume a bottle of wine, a whisky and a beer in the course of an evening without being affected by alcohol is simply not in keeping with common experience.

87 Secondly, part of the applicant’s account of the incident is not credible. The applicant stated that at first she thought the people who approached her in the grounds of the University were “hooligans”. That may well have been a reasonable assessment when somebody called out to her in a dark place in the middle of the night. But the applicant stated that when these people came closer to her one of them (Evans) said: “You’re going to tell us what you’re doing here, if you don’t we’re going to call the police”. This is hardly the sort of statement which anyone in the applicant’s position would expect of “hooligans”. It must have put her on notice that she was being asked by someone in an official capacity, whether rightly or wrongly, to identify herself and explain her presence on the University campus. It is simply not credible that a person, such as the applicant, who had been told that the police would be called if she did not explain her presence on campus, so feared for her personal safety that she felt it necessary to kick one of her interrogators in self-defence.

88 Thirdly, the applicant’s behaviour after the incident supports the conclusion that she was affected by alcohol. Whilst we acknowledge that it is traumatic for any person to be involved in an incident of the kind that occurred in the University grounds on 23 September 2000, the applicant’s subsequent behaviour at the Newtown Police Station and the Local Court went way beyond a traumatic response to what she claimed was an unprovoked assault. For instance, she refused assistance from medical practitioners and a legal aid lawyer who had had nothing to do with the incident in the University grounds, or her subsequent treatment at Newtown Police Station. The arresting police officer, Constable Zisopoulos, recorded, shortly after her arrest, that the applicant “appeared to be intoxicated”. When giving evidence he stated that he formed the view that the applicant was “highly intoxicated” at the time she was in police custody. All of the police evidence, including the video of events at Newtown Police Station and contemporaneous entries in the COPS system, leads to the conclusion that the applicant inflicted injuries upon herself in the cells. On her own evidence the applicant stripped naked whilst in the dock in court later that morning. She remained in custody for six days because of her failure to nominate a person who would sign an undertaking that she would answer bail.

89 Fourthly, the applicant stated that she pleaded guilty to two charges of assault brought against her by police officers in relation to the incident involving Evans and Day. It was quite open to the applicant, on her version of the incident, to defend the charges of assault on the ground that she was acting in self-defence. She did not do so and by her guilty pleas admitted that she had assaulted Evans and Day.

90 Finally, the evidence reveals that we must hold some concerns about the applicant’s truthfulness as a witness. The applicant volunteered whilst giving evidence that “I don’t have any criminal record”. This statement caused the respondent to summons evidence from the Western Australian Police Department which revealed that she does in fact have a record of convictions for offences in that State, with the most recent being a conviction for assault in 1997. It is the incorrect denial that she had a criminal record, rather than the convictions themselves, that we consider relevant to the issue of the applicant’s veracity as a witness.

91 We prefer the evidence of Evans and Day. They have consistently told the same story about the events of 23 September 2000. Both claim that, in effect, they were simply doing their job by making inquiries of an unknown person on the University campus in the middle of the night when the applicant committed an unprovoked assault on Day. No compelling reason has been advanced why we should not accept their version of events. Their evidence is plausible. They have recounted their version of events on a number of occasions without any marked inconsistencies. We are satisfied that Evans and Day did not know or believe that the applicant was a student at the University when they approached her on 23 September 2000. Further, we are satisfied that there were no grounds upon which they should have reasonably known that she was a student. They approached a stranger, as they were lawfully able and required to do as part of their employment, and an altercation ensued. We are satisfied that the applicant struck the first blow thereby provoking the incident which followed.

92 We are satisfied that at the time the altercation near the footbridge took place, Evans did not know or believe that the applicant was a transgender person. Day, however, did hold the belief at this time that the applicant was a transgender person. That does not mean that this belief caused him to treat the applicant less favourably than any other person who was on the University campus in the middle of the night. The only evidence which suggests that Evans and Day did anything to the applicant which amounted to treating her less favourably than others because she was a transgender person is the allegation made by the applicant that Day spread her legs apart and said “let’s see whether this thing has a dick or not”. For the reasons given at [86] to [90] we do not accept the applicant’s evidence about this matter. We are not satisfied that when Evans and Day had dealings with the applicant concerning the terms upon which she was allowed access to the University grounds that they discriminated against her on transgender grounds.

93 Consequently, we are not satisfied that the respondent contravened s38K(2)(a) of the Act in relation to this incident for elements (3), (5) and (6) of this statutory prohibition have not been made out. Day and Evans did not know or believe that the applicant was a student, and nor should they have reasonably known that fact. Whilst that finding renders it unnecessary to reach any conclusions in relation to elements (5) and (6), it follows from the findings we have made that we are not satisfied that the respondent denied or limited the applicant’s access, as a student, to any benefit provided by the University. Nor are we satisfied that the respondent treated the applicant, on the ground of her transgender status, less favourably than it treated, or would have treated, a person who was not a transgender person in the same or similar circumstances.

94 Similarly, we are not satisfied that the respondent contravened s38M(b) of the Act in relation to this incident for element (4) of that statutory prohibition has not been made out. Whilst we are satisfied that the respondent falls within this provision, because members of the public were allowed the “service” of access to the University grounds whilst they conducted themselves in a manner considered appropriate by relevant University staff, and because Evans and Day acted in a manner which affected the terms upon which that “service” was provided, we are not satisfied that the applicant was treated less favourably than others on transgender grounds. The reasons for this latter conclusion, which have been given at [86] to [92], need not be repeated.

Second incident – 23 September 2000 at Newtown Police Station

95 As a result of directions made by the Tribunal following the decision in Wilde v Day [2002] NSWADT 114 the allegations concerning this incident were restricted to the activities of Mr Evans at Newtown Police Station. The allegation made by the applicant is that when Evans made a written statement to the police at Newtown Police Station on 23 September 2000 he referred to her as a “transsexual” and as “the person”. This is correct for the statement was tendered in evidence. However, as Ms Eastman submitted, this incident does not fall within sections 38K or 38M, or any of the other substantive provisions in Part 3A of the Act. Even if it did, referring to a transgender person in this fashion does not fall within the definition of discrimination on transgender grounds in s38B of the Act.

Third incident – 16 October 2000

96 The allegation in relation to this incident is that whilst the applicant was walking in Abercrombie Street, Redfern on 16 October 2000 a University security car with the registration number WDC 205 drove past her and the passenger, who appeared to be wearing a uniform similar to that worn by University security officers, leaned out of the window and shouted to the applicant: “We’re looking for you, you fucking faggot”. The applicant was unable to name the person who shouted at her but stated that he was a man, approximately 35 to 40 years of age, who she later saw at the University wearing a security officer’s uniform. The applicant presented no evidence in relation to this incident other than her own testimony. No records were produced concerning the registered owner of the motor vehicle WDC 205.

97 The respondent denied that the incident occurred. It also submitted that the incident does not fall within sections 38K or 38M, or any of the other relevant substantive provisions in the Act. Both Mr Wessels, the General Manager of Security at the University, and Ms Sarah Heesom, the Director of Equal Opportunity, gave some background evidence about this incident. Wessels stated that the University owned a vehicle with this registration number. Heesom stated that she made enquiries with the University’s Security Services about this incident. She produced a letter sent to her by Mr NW Bavister from Security Services in which he reported that his investigation produced “no evidence to support the allegations made by Taragh Wilde, as all duty personnel can be accounted for performing duties associated with their employment and not in the vicinity of the alleged incident”.

98 We do not accept the applicant’s evidence in relation to this incident. We have already recorded our concerns about her reliability as a witness. Her testimony about this incident is not convincing. Her description of the person who shouted at her has not allowed anyone to be identified and nor does it compel the conclusion that the person must have been a member of University security staff. The applicant reported the incident to no-one for a number of weeks. The reasons which the applicant gave for failing to do so were not persuasive. She stated that she did not report the incident to the police or University security because of the events of 23 September 2000. However, if at the time the applicant was scared of people in positions of authority, she could have reported the incident to a student organization or a community legal centre. The applicant did not do so and yet some weeks later, when the tenancy of her premises at Selle House was threatened, she quickly enlisted the aid of the postgraduate students’ organization, SUPRA. The applicant’s testimony also revealed that whilst she later apparently felt little discomfort in spending considerable amounts of time with police officers in order to investigate her arrest on 23 September 2000, she did not report the incident of 16 October 2000 to the police at any time.

99 As we are not satisfied that this incident occurred there is no need to consider Ms Eastman’s submissions that it did not fall within either s38K or s38M of the Act.

Fourth incident – 6 November 2000

100 The allegation in relation to this incident is that whilst the applicant was asleep in her flat at University residential premises, Selle House, a security officer, Mr Angus Fergusson, entered her flat without permission and interfered with items of her clothing and books on transgender issues. The applicant and Fergusson gave conflicting evidence about this incident. Fergusson denied interfering with the applicant’s property or doing anything else to the applicant which may constitute discrimination on transgender grounds. There were no witnesses to this incident other than the applicant and Fergusson.

101 If the applicant’s evidence is accepted this incident may amount to a contravention of s38K(2)(a) of the Act for university accommodation is clearly a “benefit” provided by the respondent to its students. It may also amount to a contravention of s38N(2) which deals with discrimination on transgender grounds by a person who provides accommodation to others. The applicant has not explained how she claims interfering with her clothes and books may constitute limiting or denying her access to a benefit on transgender grounds. Presumably, the argument may be that entering her premises without permission amounted to limiting her enjoyment of the benefit of University accommodation. Rifling through her books and clothing was evidence of the fact that she was treated in this way because she was a transgender person. In view of the conclusions we have reached about the facts, however, it is unnecessary to further consider the characterisation of this allegation.

102 There is considerable conflict between the evidence given by the applicant and that of Fergusson. Important points of conflict are the amount of noise emanating from the applicant’s flat, the conversation which took place between the applicant and Fergusson, and the extent to which Fergusson interfered with the applicant’s property. We prefer the evidence given by Fergusson. It is plausible that a security officer in Fegusson’s position would feel compelled to enter premises from which loud music was emanating, that he would turn the music off or down, that he would seek to identify the occupant of the premises and warn them about the undesirability of loud music, and that he would then leave as soon as possible. Fergusson’s contemporaneous Security Incident Report, which was entered in the University’s computer system less than an hour after the incident occurred and well before he knew that this incident would be subjected to considerable scrutiny in this Tribunal and other forums, confirms the evidence he gave about this incident.

103 We have already recorded our concerns about the applicant’s reliability as a witness. We have also concluded that the applicant’s judgment and memory in relation to this incident were highly likely to have been adversely affected by alcohol. During her own evidence the applicant stated that she “went into a state of complete and utter hysteria” when she awoke to find Fergusson in the flat. The applicant stated in cross-examination that on the evening prior to this incident she had consumed “10 units of alcohol”, meaning 10 standard drinks of wine or spirits, between 4pm and 10 pm. She stated that she had been drinking at a pub in Redfern. She described her state of sobriety as “stone cold sober” when she arrived home at 10.30pm that night. The applicant went to sleep at 11pm and the incident involving Fergusson occurred three hours later at 2am on 6 November 2000. We believe that the applicant was highly likely to have been affected by alcohol at this time.

104 We are satisfied that Fergusson had good cause to enter the applicant’s premises and we are not satisfied that he interfered with any of the applicant’s belongings other than to turn down the music on her stereo. The circumstances of this incident do not amount to a contravention of the Act.

105 It is also alleged that Security Incident Reports made by Fergusson and Bowserger in relation to the events of 6 November 2000 contravened the Act because both security officers referred to the applicant as “he/she” and Fergusson wrote that the applicant “looked like a male but was wearing women’s clothing”. As the act of completing a Security Incident Report does not fall within any of the substantive provisions in the Act there is no need to say anything further about this allegation.

Fifth incident – 10 November 2000

106 The allegation concerning this incident is that at the meeting held on 10 November 2000, attended by the applicant, Heesom, Miller, Taylor and Anthony, Heesom told the applicant that the head of security (Wessels) had stated that the applicant was not to set foot on University grounds after dark because Wessels could not guarantee the applicant’s safety at the hands of his own staff.

107 If this statement was made this incident clearly falls within s38K(2) of the Act for it involves a student of the University being denied the benefit of access to the University grounds at all times. How it was claimed this benefit was denied on grounds that constituted transgender discrimination was not clear. Presumably the argument must be that Wessels made this statement to Heesom because of the previous incidents involving the applicant and members of security staff and that if those incidents involved discrimination on transgender grounds then this warning to stay away from the University grounds after dark was issued for reasons which constitute transgender discrimination.

108 We are not satisfied that Heesom made the statement attributed to her. Heesom denied making it. We found her to be an impressive witness who appeared to have tried hard to establish fair processes to deal with the applicant’s allegations concerning members of security staff. None of the three witnesses to the conversation between the applicant and Heesom – Taylor, Anthony and Miller – supported the applicant’s version of events. Taylor’s recollection of the conversation was completely at odds with the applicant’s evidence. He stated that Heesom told the applicant that the head of security had informed her that his staff had been instructed not to approach the applicant or have anything to do with her after nightfall on the University campus. According to Anthony, Heesom informed the applicant not to enter the campus at all at night because of concerns about security. Heesom herself stated that she told the applicant, “…if you don’t want to risk running into anyone from Security, it might be a good idea for you to consider staying clear of the campus at night”. That statement appears to be nothing more than well-intentioned advice. Miller essentially corroborated the evidence given by Heesom about this incident.

109 As we are not satisfied that Heesom made the statement attributed to her, there is no need to further consider this incident.

Sixth incident – 21 November 2000

110 The allegation concerning this incident relates to statements made by Day to police officers and court officials at Kogarah on 21 November 2000. As we noted at [19] and [31], the circumstances of this incident were the subject of separate complaints against Day. The Tribunal dismissed those complaints on 7 May 2002 (see Wilde v Day [2002] NSWADT 114). Following the dismissal of those complaints Ms Eastman successfully applied to strike out the claims against the respondent arising from this incident. Consequently, there is no need to further consider the applicant’s claims concerning this incident.

Seventh incident – University investigation into the alleged misconduct

111 The allegation concerning this incident is that the respondent advised the applicant by letter on 10 April 2001 that she was required to show cause why she should not be dealt with for misconduct by the University in relation to assaults by her on Evans and Day during the first incident on 23 September 2000. Whilst the applicant did not make it clear how she contended that this incident amounted to a contravention of the Act, the respondent conceded that the allegation might fall within the scope of s38K(2)(b). As the applicant was informed by the Registrar in his letter to her of 10 April 2001 that she faced two years expulsion from the University, it seems clear that she was under threat of being denied a “benefit” by the respondent. It is not clear how the applicant alleges that the threat to deny her this benefit amounted to discrimination on transgender grounds.

112 It is clear from the letter to the applicant of 10 April 2001, and from the earlier correspondence relating to the misconduct proceedings, that the two University officers who ultimately took the decision to take the action of which the applicant complains were the Vice-Chancellor, Professor Gavin Brown, and the Registrar, Dr William Adams. The applicant has not produced any evidence which suggests that the Vice-Chancellor and/or the Registrar, or any other University officials acting under their direction, decided to take misconduct proceedings against the applicant because she was a transgender person. This incident does not amount to a contravention of the Act.

Decision

113 We have concluded that there is no substance to any of the alleged contraventions of the Act. Consequently, the complaint is not substantiated and must be dismissed.

Costs

114 The respondent made an application for costs in the event that the complaint was dismissed. The applicant opposed any order for costs against her in any circumstances. The parties should be given the opportunity to pursue the issue of costs if they so desire. The respondent will be directed to file and serve written submissions within 28 days if it wishes to pursue its application for costs. The applicant will have a further 14 days within which to file and serve written submissions in response. If the respondent does not file and serve written submissions within the designated period there will be no order as to costs.

Orders

115 The Tribunal makes the following orders:

1. Complaint dismissed

2. Within 28 days of the date of this order the respondent is to file and serve written submissions in support of any application it proposes to make for costs.

3. Within 14 days of receiving the respondent’s written submissions in relation to costs the applicant is to file and serve written submissions in response.