Margan v Macquarie University [2025] NSWCATAD 198;

Legal principles for granting or refusing "leave" under s 96(1) of the Anti-Discrimination Act

1. Section 96(1) provides that:

96 Leave of Tribunal required for inquiry into certain matters

(1) A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A (1) may not be the subject of proceedings before the Tribunal without the leave of the Tribunal.

1. This provision gives the Tribunal a discretion to allow a complaint to be the subject of proceedings or to refuse to allow a complaint to be the subject of proceedings. That decision is not "dictated by the application of a fixed rule to the facts" but involves "value judgments in respect of which there is room for reasonable differences of opinion, no opinion being uniquely right": Norbis v Norbis [1986] HCA 17 at [4]; [1986] HCA 17; (1986) 161 CLR 513 at 518 per Mason and Deane JJ. However, the court may give guidance "as to the manner in which the discretion should be exercised": Norbis at [519].
2. The courts have provided guidance of that kind in Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 (Ekermawi). On appeal, the Court of Appeal endorsed that approach: Jones & Anor v Ekermawi [2009] NSWCA 388 (Jones). In summary:

(1) The Tribunal's decision is not subject to any fixed rule or legislative standard, but it must be exercised "having regard to the context in which it appears and the purposes for which it is provided": Salido v Nominal Defendant (1993) 32 NSWLR 524 at 536 (Kirby P) (Emphasis added.)

(2) Leave should be granted or refused depending on what is "fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted": Ekermawi at [40].

(3) The President's reasons for declining a complaint are relevant "although not necessarily determinative of the leave application ...": Jones [2009] NSWCA 388 at [60].

1. Applying these principles, Schmidt AJ in Ekermawi at [38] held that question of leave should be approached "on the basis of identifying whether it is fair and just to grant or refuse the leave sought in the particular circumstances in which the application for leave to proceed with a complaint comes forward". Her Honour went on, in the same paragraph, to explain what is meant by fairness and justice in the context of the discretion under s 96(1) of the Anti-Discrimination Act:

That requires the position of both parties to be considered. Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes 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.

1. The University provided a detailed chronology of events. Mr Margan submits that the Tribunal cannot determine whether the complaint should go ahead until further evidence is received, especially evidence from his placement supervisor. There is no need for me to resolve any factual disputes about what happened to assess the substance of the complaints. I have taken Mr Margan's evidence at its highest.
2. On 23 August 2022, the University emailed Mr Margan stating that preferencing for the placement unit was open and that it would close on 29 August 2022. On 24 August 2022 Mr Margan responded saying that his "only preference is that the school that I am eventually allocated can be reached by public transport". Mr Margan did not submit a preference using the preferencing system as requested in the University's email. On 26 August 2022 Mr Margan emailed again saying that "I do not have any preference for which school I should be placed in. However I would like somewhere easy to get to by public transport, preferably train." On 4 October 2022, the University advised Mr Margan that his placement was in a particular Catholic school.
3. While not disputing the existence of this correspondence, Mr Margan says that he was never asked if he objected to being placed in a religious school. He says it would be incongruous for the University to be able to focus on the emails about preferences as a blanket exemption from scrutiny. He asserts that he has made numerous representations about his homosexuality and his objections to a placement in a religious school. As he was only told about the placement five days before it started, he had no practical opportunity to object and the University made no attempt to establish whether a Catholic school was a problem for him as a homosexual man.
4. On 18 October 2022, the Assistant Principal of the Catholic school passed on concerns to Mr Margan's tertiary supervisor at the University stating that Mr Margan may not be a suitable candidate and that his 'prac.' might be at risk. The supervisor replied and asked the Assistant Principal to tell Mr Margan what he needed to do to improve.
5. Between 18 and 20 October 2022 Mr Margan verbally discussed his concerns about his placement with staff at the University. He was advised to raise any specific concerns with the Assistant Principal of the school.
6. On 28 October 2022 Mr Margan received an unsatisfactory grade for the placement. The University implemented the "fitness to practice" processes. On the same day, Mr Margan requested assistance from the University about the unsatisfactory grade and a "problem of harassment" that he faced during the placement.
7. On 1 November 2022 Mr Margan emailed the University complaining of harassment during the placement. The following day the University asked him to make a formal complaint and told him that the "fitness to practice" process would be suspended while the complaint was being investigated.
8. About three months later (9 February 2023) the University found that there was no evidence of harassment or discrimination in relation to either allocating Mr Margan to the placement or the way he was treated at the Catholic school. However, it found that the University did not give him sufficient opportunity to withdraw from his study once he became aware that he had been placed in a Catholic school. The University also found that Mr Margan did not receive adequate feedback from his supervisor at the school. On that basis he was given permission to withdraw from the placement unit without penalty. The "fitness to practice" process was abandoned.

Merits of Mr Margan's complaint that placement in a Catholic school and other conduct is homosexual discrimination

1. Under s 49ZO(2)(b) of the Anti-Discrimination Act it is unlawful for an educational authority, such as the University, to "discriminate" against a student, such as Mr Margan, on the ground of homosexuality by subjecting him to "any other detriment".

(2) It is unlawful for an educational authority to discriminate against a student on the ground of homosexuality -

(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.

1. The "detriment" to which Mr Margan says he has been subjected is assigning him, as a homosexual person, to a Catholic school for a placement. He also considered that retaining him in that placement, not reassigning him to another placement and initiating a 'fitness to practice' process were detriments.
2. The word "detriment" in the context of s 50(1) of the Act means "loss, damage or injury" that is "real and not trivial": Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40] and Bogie v The University of Western Sydney (1990) EOC 92-313 at 78,146. Whether something constitutes a detriment requires an objective evaluation to be undertaken: Sivananthan v Commissioner of Police, NSW Police Service at [41]. That interpretation has consistently been applied in relation to the provisions making discrimination unlawful: Bonella v Wollongong City Council [2001] NSWADT 194 at [50].
3. Accepting Mr Margan's case at its highest, each of these matters constitutes a detriment.
4. In addition, to constituting a detriment, the University's conduct must amount to either "direct" discrimination under s 49ZG(1)(a) or "indirect" discrimination under s 49ZGH(1)(b).

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of homosexuality if the perpetrator -

(a) on the ground of the aggrieved person's homosexuality or the homosexuality 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 he or she did not think was a homosexual person or who does not have such a relative or associate who he or she thinks was a homosexual 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 homosexual persons, or who do not have a relative or associate who is a homosexual 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.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person's homosexuality if it is done on the ground of the person's homosexuality, a characteristic that appertains generally to homosexual persons or a characteristic that is generally imputed to homosexual persons.

1. Section 4A of the Act provides that:

If -

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

1. To prove direct discrimination on the ground of homosexuality Mr Margan would have to establish that the University:

(1) treated him less favourably than in the same circumstances or in circumstances which are not materially different, the University treated or would have treated a person who they did not think was a homosexual person; (the differential treatment issue) and

(2) that at least one of the grounds for the differential treatment was Mr Margan's homosexuality; (the causation issue).

1. To amount to direct discrimination the University must "think" that Mr Margan is a homosexual person and have treated him less favourably than they treated or would have treated a person who they did not "think" was a homosexual person. The University acknowledged that at the time Mr Margan was placed in a Catholic school some individuals within the University knew that he is a homosexual man. Even if the University knew that Mr Margan was a homosexual person, there is no basis for drawing an inference that one of the reasons the University placed him in a Catholic school was that he is homosexual. There is no causal connection between Mr Margan's homosexuality and the University's decision to place him in a Catholic school. Nor is there any causal connection between Mr Margan's homosexuality and the University's decisions to retain him in that placement or the initiation of a 'fitness to practice' process. Mr Margan did not suggest that the University treated him less favourably in relation to any of these matters than they would have treated a person who was not a homosexual person.
2. As I understand Mr Margan's case it was that the University knew or should have known that there was a danger involved in placing a homosexual student in a Catholic school. In those circumstances the University had a duty to protect him from the risk of being exposed to discrimination and harassment in a Catholic school. The Anti-Discrimination Act does not impose such a duty. Nor is it a breach of these provisions of the Anti-Discrimination Act to invoke standard policies and procedures when a complaint is made.
3. To prove "indirect discrimination" on the ground of homosexuality by placing him in a Catholic school, or because of any other conduct before during and after the placement, Mr Margan would have to establish that the University:

(1) required him to comply with a requirement or condition;

(2) a substantially higher proportion of people who are not homosexual comply or are able to comply with that requirement or condition;

(3) Mr Margan does not or is not able to comply with the requirement or condition; and

(4) the requirement or condition is not reasonable having regard to the circumstances of the case.

1. Mr Margan did not formulate his case of indirect discrimination in accordance with these four elements. In the President's report, the requirement is said to be imposing a condition that he undertake the placement in a Catholic school. At the hearing Mr Margan suggested that the requirement was placing students in a school without checking whether it was dangerous. Neither of those "requirements" is a general requirement that the University imposed on all students enrolled in the same unit of study as Mr Margan.
2. Mr Margan is not legally represented. In a case like this the Tribunal should consider, on the basis of the information provided by the parties, whether the University has imposed an unreasonable general requirement on all students enrolled in the placement unit; whether Mr Margan cannot comply with that requirement and whether the requirement has a substantially disproportionate effect on homosexual people.
3. It is not in dispute that the University required all students enrolled in this particular unit of study to complete a 3 week placement in a school. Nor is it in dispute that students were given an opportunity (in accordance with the University's policies and processes) to express a preference about where they should be placed. There is no blanket requirement that all students complete a placement in a school regardless of their preferences.
4. Even if a requirement could be formulated which incorporates the University's policies and procedures about preferences, Mr Margan would have to prove that, in a practical sense, he cannot comply with that requirement. That would involve an assessment of the practicability of Mr Margan communicating his preference not to be placed in a Catholic school. He says that he did object to being placed in a religious school but not, it seems, as part of the process immediately before the placement in 2022. Even taking Mr Margan's evidence at its highest, the likelihood of Mr Margan being able to prove that he cannot comply with a requirement which incorporates the University's policies and procedures about preferences, is extremely low.
5. It is also highly unlikely that Mr Margan would be able to prove that a substantially higher proportion of people who are not homosexual comply or are able to comply with such a requirement. There is nothing about being a homosexual person that affects their ability to communicate preferences. Finally Mr Margan would have to prove that such a requirement is unreasonable in all the circumstances. While reasonable minds may differ on that question, the weakness of the other elements of indirect discrimination persuade me that a complaint of indirect discrimination lacks substance.

Merits of Mr Margan's complaint that the University victimised him after he complained

1. The victimisation provisions in s 50(1)(c) of the Anti-Discrimination Act make it unlawful for the University to subject Mr Margan to a "detriment" "on the ground that" or because he has alleged that a person has breached the Anti-Discrimination Act.

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.

1. Quite candidly, Mr Margan said that victimisation was not initially part of his complaint but that the President asked him to add it later. Despite the fact that it was not part of his initial complaint, he says he still thinks it is valid.
2. The so-called "trigger" for the detriment must be a complaint that "would amount to a contravention" of the Anti-Discrimination Act. Mr Margan does not assert that he alleged any contravention of the Anti-Discrimination Act in the discussions he had with staff at the University between 18 and 20 October 2022. It follows that those discussions cannot have been the 'trigger" for any detriment the University imposed on Mr Margan.
3. On 28 October 2022, the last day of his placement, Mr Margan requested assistance from the University about the unsatisfactory grade and a "problem of harassment" that he faced during the placement. That is the earliest date on which Mr Margan alleged that the school had done something which would amount to a contravention of the Anti-Discrimination Act.
4. To establish victimisation Mr Margan would have to prove that the University subjected him to a "detriment" on the ground that he complained on 28 October 2022.
5. In the initial complaint to the Tribunal, Mr Margan characterised the detriment as "informing the school of my complaint, during my tenure, without withdrawing me from the placement." Later he said that his treatment at the school deteriorated after the complaint was made known to them. Neither of those circumstances can constitute a detriment under s 50 of the Anti-Discrimination Act because they took place before the triggering event on 28 October 2022.
6. I understand that another "detriment" about which Mr Margan complains is that he was subject to a 'fitness to practice' process after he complained. The University concedes that on Friday 28 October 2022 a 'fitness to practice' process was initiated following Mr Margan's unsatisfactory grade. However, that process was suspended the following Wednesday 2 November 2022 after Mr Margan set out his complaint in writing. After the investigation of the complaints the University terminated the 'fitness to practice' process. None of these facts are disputed. Nor is there any basis for inferring that a reason for invoking the fitness to practice process was that Mr Margan had complained. For these reasons, Mr Margan's complaint of victimisation lacks substance.

1. Leave is refused for the applicant's complaints to be the subject of proceedings before the Tribunal.

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.