Frost v Southern Cross University

NCAT Administrative and Equal Opportunity|2020-03-24

Background

Ms Julie Frost has been a student at Southern Cross University, New South Wales (SCU). Most recently she was enrolled in a Bachelor of Laws in second semester 2017. Ms Frost made complaints to the President of Anti-Discrimination NSW (ADNSW) about her treatment at SCU alleging disability discrimination in education and victimisation in August 2019. The complaint was accepted by the President of ADNSW for the period August 2018 to August 2019.
On 6 February 2020 the President of ADNSW wrote to Ms Frost and the Respondent, SCU, declining the complaint of disability discrimination and victimisation. Ms Frost requested that the President of ADNSW refer the complaint to NCAT. In the circumstances where the President has declined a complaint, it is necessary for an applicant to seek leave of the Tribunal to proceed with the complaint under section 96 of the Anti-Discrimination Act 1977 (ADA).
The matter before the Tribunal on 24 March 2020 was consideration of Ms Frost's application for leave to proceed with the complaint in the Tribunal.

History of the complaint

On 6 February 2020, the President of ADNSW wrote to Ms Frost in relation to her complaints of disability discrimination and victimisation against SCU. That letter stated that having considered all the information that Ms Frost and the Respondent had given ADNSW, the President's delegate had decided to decline the complaints under section 92(1) of the Anti-Discrimination Act 1977 New South Wales on the basis that the complaints were lacking in substance. The reasons for declining the complaints were that the President's delegate had determined that: "Ms Frost has provided no information to support her allegation that she was treated less favourably by the Respondent during the relevant period because of her disability by denying her access to counselling, and blocking her access to information, education and communication. Ms Frost has provided no information other than a mere allegation that she has been victimised by the Respondent as a result of raising allegations of disability discrimination."

Summary of the complaint

Ms Frost enrolled at SCU to study a Bachelor of Laws in 2013. She was suspended from study following findings of non-academic misconduct in 2016. The suspension was upheld by a University committee on 20 October 2016. In addition to suspension from study, the University committee made a number of orders including that Ms Frost's re-enrolment in any future study was subject to provision of medical evidence of fitness to study. Ms Frost was permitted to re-enrol in session 2, 2017 and she enrolled in 2 units of study. Ms Frost has not been enrolled at the University since the end of session 2 2017.
Ms Frost's allegations of discrimination and victimisation during the relevant period from August 2018 to August 2019 included the following:

She was denied access to counselling.
The University had refused to deal with her Government Information (Public Access) Act 2009 (GIPA) applications.
The University had refused her assistance to enrol at the University.
The University refused to process a fee refund.
She was blocked from having access to information.
She was blocked from having access to education.
She was blocked from having access to communication with the University. There was a redirection in place within the University in relation to communications from Ms Frost.

The Respondent responded that Ms Frost was not eligible for the counselling service as she was not an enrolled student at the time. The University denied that it had blocked her access to information, asserting that it had responded to applications for information under the GIPA in the relevant period. The University denied that Ms Frost's access to education had been blocked. She was not enrolled at the University during the relevant period. The University had no record of Ms Frost trying to re-enrol during the period. The University considered that it was unlikely that Ms Frost had tried to re-enrol given the ongoing nature of her complaints against the University. Ms Frost's suspension from study in 2016 for non-academic misconduct resulted from findings of non-academic misconduct, not disability discrimination. The University stated that an email redirection remained in place in relation to Ms Frost's communications due to the volume and nature of her correspondence. The University had responded to Ms Frost's communications when legally obliged to do so.

Principles for Granting Leave

The Supreme Court in the case of Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143, has set out principles on which leave should be granted. In that case, Acting Justice Schmidt said: "Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which include precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates."
When deciding whether to grant leave the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the Anti-Discrimination Act including that the complaint lacks substance or that the nature of the conduct is such that further action is not required: Jones v Ekermawi [2009] NSWCCA 388 at [60].
The Applicant bears the onus of persuading the Tribunal that it is appropriate for leave to be granted. While it is not the Tribunal's role when determining a leave application to decide whether the complaint has been substantiated, the merits of the complaint are relevant.

Tribunal's hearing of leave application 24 March 2020

Both parties attended the Tribunal's hearing of the application for leave on 24 March 2020 by telephone.
Ms Frost had that morning provided a written submission to both the Respondent and NCAT as to why leave should be granted for her to proceed with her complaints. Ms Frost also addressed the Tribunal as to why leave should be granted to her.
A copy of Ms Frost's written submission is on the Tribunal's file. The Tribunal summarises Ms Frost's written submission as follows.
Ms Frost asserted that she had essentially been blacklisted by a number of universities in union. The University had required that she have psychological assessment prior to re-enrolling, and she had been refused access to the University's counselling service. She had requested records held by the University concerning her health or imputed disability but had been refused these under GIPA. She said that her online applications and request for services online had gone unanswered. She had requested that the head of the faculty process her discrimination complaints, but this had not happened, and she had been threatened with disciplinary punishment in response. Ms Frost considered that ADNSW had a conflict of interests in relation to dealing with her complaints as she had made complaints against its President. Ms Frost stated that she continues to make representative complaints with others in the student representative roles of various organisations and as a result of this was victimised by SCU. SCU had not investigated her complaints of discrimination and this was evidenced in information access releases. She was being denied complaint investigation services. Ms Frost alleged that for the purpose of the hearing some of the matters fell under the ADA covering political, sex, (sexual harassment), disability and other types of discrimination. She asserted that evidence was not required in a leave hearing. The applicant's allegations were required to be taken at their highest for the purpose of determining leave to proceed.
At the hearing Ms Frost stated that she did not need to provide evidence of her allegations. She asserted that she was blocked from enrolling at SCU and that the faculty was not responding to her. Ms Frost told the Tribunal that she had offered herself up for medical examination. She was concerned about the "academic misconduct" matters as they would stop her from becoming a lawyer and she had paid a lot of money for her studies. There had been a breakdown in communications between her and ADNSW.

Respondent's Submissions

The Respondent submitted at the hearing that it was not fair and just for leave to be granted to Ms Frost to proceed. Mr Dixon stated that conditions had been placed on Ms Frost's re-enrolment by the University's committee in 2016. The conditions still stood. He said that the University would look at an application to make reasonable adjustments. It was not fair and just for leave to be granted as most of the information provided preceded the period of complaint of August 2018 to August 2019. Previous matters of conduct did not apply to this particular matter. The Tribunal was required to look at matters between August 2018 and August 2019. Mr Dixon noted that Ms Frost was saying that she had no disability. Previously Ms Frost had told the University that she did have a disability. Mr Dixon stated that there had been a recent application from Ms Frost to enrol at the University, but that this did not fall in the relevant complaint period of August 2018 to August 2019. There had been a lot of correspondence and information provided by Ms Frost and the University had attempted to distil it. From this it appeared that it was not fair and just to grant leave because all those previous matters had been dealt with.

The Tribunal's consideration

When considering whether to grant leave, the Tribunal must consider the merits of the complaint. The tribunal sets out an analysis of what Ms Frost would need to prove should the complaint come to a hearing.

What constitutes Disability Discrimination in Education

The relevant sections of the ADA - 49A, 49B and 49L- are set out below.
Ms Frost would need to show at hearing that she either has a disability or was thought by the University to have had a disability. Ms Frost denied at the preliminary hearing that she had a disability - but that the University had thought she had a psychological disability. The University confirmed that Ms Frost had previously provided information to the University that stated that she had a psychological disability. At final hearing, a Tribunal could be satisfied that Ms Frost had a presumed psychological disability.
Ms Frost would need to show that she had been treated less favourably than in the same circumstances, or in circumstances which are not materially different, the University treated a person who was not thought to have that disability. At least one of the real reasons must have been her (presumed) disability. Ms Frost did not offer a comparator who for example was refused access to counselling services who was not enrolled at the University in the same circumstances.
Ms Frost asserted that the University had refused her application to enrol as a student. There was no evidence presented to the Tribunal that Ms Frost had made an application to enrol during the complaint period August 2018- August 2019. The University denied that it had received an application from Ms Frost during this period.
There was no evidence that the University had refused access to information because of Ms Frost's presumed disability.
There was no evidence that her communication with the University had been blocked because of her presumed disability. The University stated that Ms Frost's communications with the University were managed because they were voluminous and demanding of resources. It is unlikely that at hearing a Tribunal could find that Ms Frost had been treated less favourably on the grounds of her 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). 49B 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. (3) … (3A) … (4) … 49L EDUCATION (1) It is unlawful for an educational authority to discriminate against a person on the ground of disability-- (a) by refusing or failing to accept his or her application for admission as a student, or (b) in the terms on which it is prepared to admit him or her as a student. (2) It is unlawful for an educational authority to discriminate against a student on the ground of disability-- (a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or (b) by expelling him or her, or (c) by subjecting him or her to any other detriment. (3) Nothing in this section applies to or in respect of-- (a) a private educational authority, or (b) a refusal or failure to accept a person's application for admission as a student by an educational authority where the educational authority administers a school, college, university or other institution which is conducted solely for students who have a disability which is not the same as that of the applicant. (4) Nothing in subsection (1) (a) or (2) (b) renders it unlawful to discriminate against a person on the ground of disability where, because of the person's disability, the person requires services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority. (5) Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person's disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the educational authority.

What constitutes victimisation

Section 50 of the ADA sets out what constitutes victimisation and is set out below. In short Ms Frost would need to show that she had experienced a detriment. A Tribunal at final hearing could find that Ms Frost had experienced a detriment in being refused access to counselling services. Ms Frost would need to show that one of the reasons for any detriment was the fact that she had made a complaint against the University. It was not clear what instance Ms Frost might have been relying upon. Ms Frost did allege generally that universities had blacklisted her for making complaints. She did not set out how this had related to her concerns during the August 2018 to August 2019 period. It is unlikely that a Tribunal would find that Ms Frost had been victimised for making complaints under section 50 of the ADA. 50 VICTIMISATION (1) It is unlawful for a person ("the discriminator" ) to subject another person ("the person victimised" ) to any detriment in any circumstances on the ground that the person victimised has-- (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

Decision

In leave applications under section 96 of the ADA, the onus is upon the applicant for leave to prove the case for leave. The majority of Ms Frost's submissions before the Tribunal related to her past disputes with SCU - particularly the findings of non-academic misconduct made against her by the University's committee in 2016. Ms Frost did not address the criteria necessary in seeking leave for a complaint to proceed under section 96 of the ADA.
The Tribunal understood that Ms Frost was very concerned about the impact of her non-academic misconduct finding made in 2016. This matter however was not part of the complaint referred by the President of ADNSW. The Tribunal was unable to deal with this matter.

Is it fair and just to grant leave for the complaint to proceed ?

The Tribunal must consider whether it is fair and just for the complaint to proceed. The President of the ADB concluded that there was insufficient information to support Ms Frost's contention that she was discriminated against in education on the basis of her (presumed) disability. There was no evidence to support her complaint of victimisation. The Tribunal considers it highly unlikely that the complaint could succeed at hearing.
The Respondent submitted that it was not fair and just for leave to be granted in the matter. Ms Frost was not enrolled as a student at the University during the complaint period August 2018 to August 2019. She was not entitled to use the University's counselling services as she was not enrolled. No evidence had been presented that Ms Frost had tried to re-enrol at the University during the relevant period. The University had provided Ms Frost with documents under 2 GIPA requests.
In all the circumstances the Tribunal does not consider that it is fair and just to grant leave for the complaint to proceed.

Decision

Leave for Ms Frost to proceed with her complaint under section 96 of the ADA is refused.

Orders 1. The application for leave under s 96 of the Anti-Discrimination Act 1977 (NSW) is refused.

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: 17 April 2020

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