EEZ v TAFE NSW

NCAT Administrative and Equal Opportunity|2019-12-06

REASONS FOR DECISION

EEZ, the applicant in these proceedings, lodged a complaint with the President of the Anti-Discrimination Board (the President) alleging that by refusing to permit him to continue in the Higher School Certificate program at its Randwick campus, TAFE NSW discriminated against him on the ground of disability.
The President decided to exercise the discretion to decline the Applicant's complaint, stating she was satisfied that it was "lacking in substance": s 92(1)(a)(i) of the Anti-Discrimination Act 1977 (NSW) (the Act). At the Applicant's request, the President referred the Applicant's complaint to the NSW Civil and Administrative Tribunal (NCAT) as required by s 93A of the Act.
Because the President declined the Applicant's complaint, it may not proceed in the Tribunal without leave of the Tribunal: s 96(1) of the Act. TAFE urges the Tribunal to refuse leave, asserting that the President had correctly concluded that the applicant's complaint lacks substance. TAFE contends that its decision to refuse to permit the Applicant to continue to be enrolled in its HSC program does not constitute a "detriment" because it offered the Applicant the opportunity to undertake an alternative course at its Ultimo campus. In addition, TAFE contends that the reason it made that decision was unrelated to any disability the Applicant might have, but was made because he had disclosed a history of violence. The Applicant, on the other hand contends that TAFE misinterpreted his comments and he, in fact, disclosed that he had been the victim of, not the perpetrator of, acts of violence.

Non-publication of complainant's name

The report provided to the Tribunal by the President as required by s 94A(1)(c) of the Act, details the alleged disclosure made by the Applicant about his history of violence and parts of his medical history. That material is of a private and highly sensitive nature and, in my view, if disclosed in published reasons for decision, there is a real risk that the Applicant will suffer significant distress and anxiety. In reaching that conclusion I have had regard to the available material about the Applicant's recent admission to hospital apparently under Chapter 2 of the Mental Health Act 2007 (NSW). For those reasons, I have decided that, despite the presumption of open justice (see for example, DLH v Nationwide News Pty Ltd [2018] NSWCATAD 92 at [5]-[11], Frost v TAFE NSW (No 2) [2019] NSWCATAD 129 at [9]-[12]), to exercise the power conferred by s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) to prohibit the disclosure of the Applicant's name. In these proceedings, the Applicant will be referred to by the pseudonym "EEZ".

Background to the Applicant's complaint

TAFE requires students to disclose any history of violence: Procedures for the Identification and Management of Risks Posed by a History of Violent Behaviour - TAFE NSW Students (the TAFE policy). That policy defines "violence" to mean any behaviour that "seriously interferes with the physical or psychological safety and wellbeing of others" and to include threats of violence or intimidation of others and suspension or expulsion from any educational institution for violent aggressive behaviour.
In February 2019, in compliance with that policy, the Applicant disclosed to Psychiatric Disability Teaching Consultant, Ms Paula Howard, that he had a "history of violent behaviour" and, as a result, had been excluded from the University of Technology, Sydney. After meeting with the Applicant to obtain further information about that disclosure, and obtaining some of the Applicant's medical records, TAFE referred the question of whether the Applicant should be permitted to continue to be enrolled in the HSC course in Randwick to a TAFE "risk assessment panel".
In a letter dated 9 April 2019, TAFE Manager, Ms Karen May, informed the Applicant that TAFE had decided that he would not be permitted to continue his enrolment at Randwick but would be permitted to enrol in the Tertiary Preparation Course (TPC) offered at TAFE's Ultimo campus. Ms May gave these reasons for that decision: The Panel made this decision upon the nature of the specific learning environments and what supports can be provided in order for you to successfully complete a qualification and achieve an ATAR.
In a letter to the Board dated 15 August 2019, Ms May set out the history to that decision. She asserted that on two occasions the Applicant was given the opportunity to meet with TAFE to discuss the outcome of the risk assessment. According to Ms May, the Applicant failed to attend the first meeting and despite asking for that meeting to be rescheduled, failed to attend a second meeting.
Ms May gave the following reasons for the decision not to permit the Applicant to continue to be enrolled in the HSC course at Randwick, but instead to grant him enrolment in the TPC at Ultimo:

The HSC class at Randwick consisted of a high percentage of young students (aged under 18), who have already been identified as being vulnerable (i.e. young students who had low maturity levels, some with specific needs, and who were already at risk of non-completion due to struggling to complete high school in a school setting).
It was determined that [the Applicant's] past behaviour would put the Randwick HSC students at potential risk.
The main basis for this assessment was [the Applicant's] medical records received from the Canterbury Health Centre, which identified the following: ■ [The Applicant] showed signs of surges of aggression. ■ [The Applicant] reflected about how a student asked how he was, 'sarcastically', and that this enraged him, and he had fantasies of harming others. ■ [The Applicant] reported that if he perceived someone as a threat, he would 'bash something over their head' and 'punch them hard in the throat'. ■ [The Applicant] stated that the only thing that would stop him from attacking someone was if they lie down on the ground and showed fear in their eyes.
It was determined that the TPC program at Ultimo would be more suitable for [the Applicant], together with certain reasonable adjustments and behaviour management plans that would also need to be considered. TAFE NSW was of the belief that the TPC Program and Ultimo campus had greater resources with Teacher Consultants and Counsellors to provide the additional support that [the Applicant] required. It was also determined that the TPC students at Ultimo were an older group from very diverse backgrounds, so this would provide [the Applicant] with a more inclusive learning environment.
The enrolment in the TPC Program would still need to be managed with assistance from TAFE NSW disability consultants to identify suitable reasonable adjustments, and assistance from teachers and TAFE NSW counsellors to manage behaviour.
This decision would not have affected [the Applicant's] end goal of achieving an ATAR or TES score for entry into University.

Ms May asserted that TAFE's decision was not based on any disability or other "protected attribute" of the Applicant. Rather, she claimed that the decision was based on the "health and safety of current enrolled students in the HSC Program at Randwick, and in consideration of the Applicant's needs".
Ms May went on to assert that TAFE disagreed with the Applicant's claim that, as a consequence of its decision, he suffered a "detriment". She asserted that the TPC provided a "similar outcome" for entrance to university as the HSC, and while TPC students are not awarded an ATAR score on completion of their course, they are awarded a Tertiary Entrance Score (TES) which is recognised by most universities. In addition, she asserted that more resources and support would be available to the Applicant through the TPC than would have been available to him if he continued to be enrolled in the HSC.

Statutory framework and principles governing the grant of leave

A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.
Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If, at any time in the course of that investigation the President is satisfied that the complaint is lacking in substance, he or she may decline the complaint, in whole or in part: ss 92(1)(a)(i) and 92(1)(a)(ii) of the Act. A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland & Anor (1981) 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act.
Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.
Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [58]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25]. That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones & Anor v Ekermawi [2009] NSWCA 388 at [57]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [36], [37]; Jones & Anor v Ekermawi [2009] NSWCA 388 at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60].

Statutory framework: discrimination in the area of education on the ground of disability

The Act makes it unlawful for an educational authority to discriminate against a student on the grounds of disability by "subjecting him or her to any other detriment": s 49L(2)(c).
Section 49B of the Act explains what constitutes discrimination on the ground of disability: (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator: (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. …
If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act.
Section 4 of the Act defines disability to mean: (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.
In addition, the Act defines disability to include includes past, future and presumed disability: 49A Disability includes past, future and presumed disability 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).

Cast as a complaint of direct discrimination is the complaint lacking in substance?

To determine whether leave should be given for the complaint to proceed, it is necessary to identify the elements necessary to establish that complaint and then to ask whether the complaint is lacking in substance. If cast as a complaint of direct discrimination (s 49B(1)(a)) the Applicant must establish: 1. That he has, had or is thought to have or had a disability. 2. That TAFE subjected him to a detriment. 3. That TAFE treated him less favourably than it treated, or would have treated, a student without his disability, or the disability he is thought to have, or to have had in the past, in the same circumstances, or in circumstances which were not materially different (less favourable treatment). 4. That one of the reasons for any less favourable treatment was the Applicant's disability, a characteristic that generally appertains to, or is generally imputed to, persons with the Applicant's disability (causation).
The first two elements also apply to a complaint of indirect discrimination (s 49B(1)(b)).

A disability?

TAFE contends the complaint must fail at the first hurdle because in an email to the Board sent 5 July 2019, the Applicant denied having an disability: I am a normal person and was treated like a person with a disability… I believe I was misdiagnosed with Asperger's Syndrome in Hospital.
That contention cannot be accepted given the breadth of the definition of disability used by the Act. The Act defines disability to include a past disability: s 49A(c). Even if it is accepted that the Applicant does not, as claimed in these proceedings, have Asperger's Syndrome or some other psychological condition, there is material in the President's Report to support an finding that the Applicant had a disability. This includes the disclosure made by the Applicant to TAFE and the Board that he had been admitted to a hospital as a voluntary patient (see s 7 of the Mental Health Act 2007 (NSW)) and the medical records relating to that admission.
In addition, it is to be noted that the definition of disability encompasses a disability the person is thought to have or was thought to have had in the past irrespective of whether the person in fact has or had that disability: para (b) and (c) of s 49A. While there is no direct evidence that TAFE staff thought that the Applicant has or had a disability, that inference could arguably be drawn from the available material, which includes the disclosure made by the Applicant to TAFE about his history, the Applicant's medical records produced by the Hospital in answer to TAFE's request, and, TAFE's statement that the Applicant's enrolment at Ultimo would be managed with assistance from TAFE's "disability consultants".

A detriment?

TAFE contends that because it offered the Applicant the opportunity to enrol in an alternative course, namely the TPC conducted at its Ultimo campus, it cannot be argued that it subjected him to "a detriment" within the meaning of s 49L(2)(c) of the Act. It follows, contends TAFE, that because the conduct about which the Applicant complains does not fall within a substantive provision of the Act, the complaint must fail.
The word "detriment" is not defined by the Act. In the context of s 50(1) of the Act, it has been taken to mean "loss, damage or injury" that is "real and not trivial": Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [41]. Whether something constitutes a detriment requires an objective not subjective evaluation to be undertaken: Sivananthan v Commissioner of Police, NSW Police Service at [41]; Burns v Sunol (No 2) [2017] NSWCATAD 236 at [75]. I adopt that meaning.
While TAFE offered the Applicant the opportunity to enrol in an alternative course, it does not follow, as TAFE appears to contend, that the contention that the Applicant was subjected to a detriment is unarguable. First, the available material reveals that not all universities recognise the TPC. At this stage of the proceedings, it is not possible to rule out the possibility that, as the Applicant fears, the range of tertiary courses available to him will be more limited if he were to complete the TPC rather that the HSC. Second, as a consequence of TAFE's decision, the Applicant's studies were interrupted mid-term and he was not able to commence the TPC until the second semester in 2019. Finally, as a consequence of that decision, the Applicant has been denied the opportunity to continue his preferred course. In my view a reasonable person would be likely to consider that to be a detriment.
If, as TAFE asserts, the Applicant's interests would be better served if he were to undertake the TPC because of the additional support and assistance said to be offered to students of that course, which are not offered to HSC students, that does not exclude a finding that he has been subjected to a detriment.
TAFE's contention that the Applicant's claim of having suffered a detriment is not reasonably arguable is rejected.

Less favourable treatment and causation

For the complaint to be substantiated, the Applicant must establish that TAFE subjected him to less favourable treatment and that one of the reasons for that treatment was presumed or actual disability.
Determining whether the element of less favourable treatment is established requires a comparison to be undertaken between the treatment TAFE afforded the Applicant and the treatment it afforded a student without his disability (an actual comparator), or is likely to afford a student without his disability (a hypothetical comparator), in circumstances that are not materially different to those of the Applicant.
The Applicant has not nominated an actual comparator. Nor is one apparent from the available material. Accordingly, the task of undertaking the requisite comparison, defaults to employing a hypothetical comparator: a hypothetical student in the same, or not materially different circumstances, to the Applicant. For current purposes, adopting the approach taken in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [63]-[65] and McEvoy v Acorn Stairlifts Pty Ltd [2017] NSWCATAD 273 at [68], I will assume, but not decide, that one of the reasons TAFE decided to refuse to permit the Applicant to continue in the HSC course was that he had or was thought to have, or to have had, a disability.
In Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 ("Purvis") at [223], Gummow, Hayne and Heydon JJ explained that the task of evaluating whether less favourable treatment is established requires "all of the objective features" surrounding the impugned treatment to be identified and then to ask: "[W]hat would have been done in those circumstances if the person concerned was not disabled?": Purvis at [223]. Their Honours went on to state at [224] that in asking that question: It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability.
In this case, the objective features surrounding the decision to exclude the Applicant from the HSC course include the comments made by the Applicant to hospital and TAFE staff, the assessment made by the Applicant's GP that he was "not of a violent nature", and the absence of any evidence that the Applicant has a criminal history or history of violence. I note that the available material does not disclose the precise reason the Applicant was expelled from the University of Technology.
The hospital notes produced to TAFE record that during an admission to hospital in early 2019, when asked by hospital staff how he would react if a student asked in a sarcastic tone "How he was", the Applicant replied that this would "enrage him". In addition, the notes record that the Applicant reported having fantasies of harming others and that if he perceived someone to be a threat, he would "bash something over their head" and "punch them hard in the throat".
In the email sent to Ms May on 2 March 2019, after detailing the abuse he claimed to have been subjected to in the past, the Applicant wrote "most of my violence is bashing my abusers". He went on to write "I work in Defence and Security … This is why killing people is a job".
If the complaint proceeds, the Tribunal would be required to ask, "What would TAFE probably have done?" if a hypothetical student who did not have or was not thought to have a disability, was in circumstances that were not materially different to those of the Applicant. To answer that question, the Tribunal would need to make an evaluative judgement. Given the nature of the material available to TAFE at the time it made the decision to refuse to permit the Applicant continue the HSC course, I conclude that the contention that TAFE's decision amounted to less favourable treatment, is not reasonably arguable. Self-reports of thoughts of violence, such as those made by the Applicant at the hospital, do not prove violence or even a tendency to violence. But they are prima facie evidence of potential risk, a risk to other students that TAFE had a duty to mitigate as best it was able. That would have been the case regardless of the characteristics of the student who made such self-reports.
In reaching that conclusion I have taken into account that some of the objective features would weigh against an assessment that the Applicant might pose a risk of harm to student or teachers, in particular the absence of any evidence of the Applicant acting in a violent manner, and the favourable opinion expressed by his GP that he is not a violent person. In addition, I have taken into account that once the Applicant made the subject disclosure, TAFE's policy did not mandate that the Applicant be excluded from the course, it merely required TAFE to undertake a risk assessment. Nonetheless, given the concerning nature of the self-reports, together with TAFE's assessment that some of the students enrolled in the Randwick course are immature and vulnerable, I conclude that it is highly improbable that the Applicant would be able to succeed in establishing that the treatment he was afforded was less favourable than the treatment TAFE would probably afford a student in comparable circumstances without his disability, or who was thought to have a current disability or a disability in the past.

Conclusion

Cast as a complaint of direct discrimination, in my view, the complaint lacks substance.

Cast as a complaint of indirect discrimination is the complaint lacking in substance?

Neither party addressed the question of whether the complaint could be formulated as a complaint of indirect discrimination. Nonetheless, as the Applicant is self-represented, in my view, it is necessary and appropriate that I consider this alternative formulation of the complaint.
To succeed as a complaint of indirect discrimination, The Applicant must establish: 1. TAFE imposed a requirement or condition; and 2. He was unable to comply with that requirement or condition; and 3. A substantially higher proportion of students without his disability comply or are able to comply with that requirement or condition; and 4. The requirement or condition was not reasonable having regard to the circumstances of the case.

The requirement or condition

Key to the success of a claim of indirect discrimination is the formulation of the subject requirement or the condition the complainant contends they cannot comply with and was not reasonable having regard to the circumstances of the case.
The phrase "requirement or condition" is not defined by the Act. The alleged "requirement or condition" must be identified with some degree of precision: Australian Iron and Steel Pty Limited v Banovic [1989] HCA 56; (1989) 168 CLR 165 ("Banovic") at 185; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 ("Waters") at 393, 406-7; Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 at 143. However, "considerable latitude is afforded to applicants in formulating the requirements or conditions about which they complain": Walker v State of Victoria [2011] FCA 258 at [194].
The authorities have consistently stated that the words "requirement or condition" should not be given a narrow or technical construction: State of New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 ("Amery") at 195. Rather, the words are to be interpreted liberally so as to further the objects of the Act: Banovic at 185, 195-7; Waters at 393-4, 406-7; Amery at 195. Set out in the long title to the Act, the objects of the Act are "to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons".
The offending requirement or condition need not be explicit: Banovic at 185; Waters at 360. It may implicitly arise as a practical reality in the circumstances of the case.
Self-evidently, as neither party addressed whether the complaint could be cast as a claim of indirect discrimination, neither proposed a requirement said to have been imposed by TAFE with which the Applicant is unable to comply. Without proper argument, the possibility that TAFE subjected the Applicant to some form of condition or requirement with which he could not comply, that a substantially higher proportion of student without his disability could comply and in all the circumstances was not reasonable, cannot be excluded. However it appears highly unlikely.
For these reasons, in my view cast as a complaint of indirect discrimination, the complaint lacks substance.

Conclusion

I agree with the conclusion reached by the President that the complaint lacks substance. For these reasons I have decided it is not fair and just to permit the complaint to proceed.

Order 1. Leave for the complaint to proceed is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW).

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 January 2020

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