Rowley v Charles Sturt University

NCAT Administrative and Equal Opportunity|2024-05-01

Procedural Background

Mr Rev Comrade Rowley (the Applicant) was a student at Charles Sturt University (the Respondent) and between 20 January 2014 and Semester 1 of 2023 he was enrolled in the Respondent's Bachelor of Theology course, on a part-time basis. The Applicant identifies himself as a male transgender asexual student with a disability.
On 24 June 2023 the Applicant lodged a complaint with the President of Anti-Discrimination NSW (the President) against the Respondent, making a number of allegations regarding the conduct of the Respondent and its employees towards him. Additional information was provided by the Applicant on 24 August 2023 in relation to his complaint. The President's delegate summarised the complaint as alleging disability discrimination in education, transgender discrimination in education, and victimisation, pursuant to ss 49A, 49B, 49C, 49L, 38A, 38B, 38K, 50 and 53 of the Anti-Discrimination Act 1977 (the Act).
On 26 February 2024, the President of Anti-Discrimination NSW (ADNSW) decided to decline the complaint under s 92(1)(a)(i) of the Act, on the ground that she was satisfied that it is lacking in substance. The reasons for that decision were: 1) Mr Rowley has failed to establish that Charles Sturt University (CSU) treated him less favourably because of his disability in education than others are likely to be treated, in circumstances that are not materially different. 2) The complainant has not established CSU, in maintaining student records in the name of a student at the time that record was created, amounts to less favourable treatment on the basis of transgender status. CSU provided information of its legislative obligation to retain all its student records in the form the records were created. The information also supports that subsequent records held for Mr Rowley reflect his preferred gender and pronouns, and all communications are addressed in his preferred gender and title. 3) Mr Rowley has not established CSU imposed a requirement or condition on him which he was unable to comply with because of his disability and/or transgender status, and which a substantially higher proportion of persons who do not have that disability and/or are not transgender are able to comply. 4) Mr Rowley has failed to show the Respondent victimised him, i.e. subjected him to a detriment that he would not have otherwise been subjected to, but for making a complaint of disability and/or transgender discrimination. 5) the Respondent provided supported reasons for the actions it took in, amongst other matters, excluding Mr Rowley from study at CSU for a 5-year period, which do not relate to any disability he has or because of his transgender status.

The Applicant's complaint

In his Statement (annexed to the Statutory Declaration of 29 May 2024) the Applicant described his complaint as: 9. I rely on my 24082024 ADNSW email Paginated Statement of Evidence filed in my 26042024 NCAT Mr RCR brief of evidence and mark it as "Annex I". "The 13/02/2023-03/05/2023 Joanne Stokes UTC Staff suspension order and the 15/02/2023 Joanne Stokes,Anthony Rees, Melanie Rumball General Misconduct Complaint related to Joanne Stokes informing Centrelink in 2022 that the THL218 Christian Ministry Subject I was enrolled in was cancelled which cancelled my Disability Pensioner Education Supplement from 03/01/2023. On 11/01/2023 Joanne Stokes refused to help me obtain a university confirmation of enrolment letter for Centrelink to restore my disability Pensioner Education Supplement when Joanne said to me by phone, "You're not doing any studies and shouldn't be getting any payments." CSU Counselling, CSU LGBTIQA+ Ally Network, CSU Disabilities, CSU Student Advocacy,CSU Student Central, CSU St Mark's National Theology College Canberra told United Theological College it was disability discrimination to refuse to give me university confirmation of enrolment letters for Centrelink to restore my disabilities payments to try to force me to change my CSU BTH part time study load to full time load that was putting me at risk of becoming homeless and was setting me up to fail. On 02, 06, 11/02/2023 "The moment Anthony Rees contacted me with university letters for Centrelink confirming my CSU BTH part time enrolment," Anthony Rees and Melanie Rumball threatens me with misconduct proceedings without formal notification of a general misconduct complaint, then "I got suspended for it without a hearing on the matter by Joanne Stokes, Melanie Rumball and Anthony Rees. This is unlawful discrimination under the NSW Anti-Discrimination on Act 1977 "Part 4A Discrimination on the ground of disability" as defined by Section "49B what constitutes discrimination on on the ground of disability" as defined by "Division 3 Discrimination in other areas'' in Section "49L Education which incites "49C what constitutes unjustifiable hardship" against me. (https://legislation.nsw.gov.au/view/html/inforce/current/act-1977-048#pt.4A)" 10. I rely on the NSW Anti Discrimination Act 1977 No 48 Part 4A Sections 49A, 49B, 49C,49L "discrimination on disability grounds" to request that the 13022023-03052023 CSU 80 day Joanne Stokes UTC Staff suspension order and the misconduct finding be revoked. I want my equal opportunity for my case to be heard in person for the equal human right to be a CSU BTH Ordained Disability Student without discrimination and to obtain university part time enrolment letters to restore my Centrelink Disability PES payments and thus be able to complete my CSU BTH degree part time without discrimination because I am not guilty of any offence.
The Tribunal thereby understand that the Applicant's complaint alleges that: 1. The THL218 Christian Ministry subject the Applicant was enrolled in was cancelled; 2. The Applicant's Centrelink pension was consequently cancelled; 3. Ms Stokes, an employee of the Respondent, refused to assist the Applicant in obtaining a confirmation of enrolment from the Respondent, which the Applicant believed would restore his pension; 4. Ms Stokes said to him "You're not doing any studies and shouldn't be getting any payments"; 5. The Respondent tried to force him to change his enrolment from part-time to full-time study; 6. The Respondent's employees ultimately provided him with the confirmation of part-time enrolment, but then threatened him with misconduct proceedings, without formal notification; 7. He was suspended for misconduct without a hearing on the matter; 8. He was prevented or restricted from accessing legal assistance in relation to the misconduct process; 9. The misconduct hearing referred to or relied on documents from a previous misconduct allegation against the Applicant, which the Applicant believed should not have been disclosed or recorded, and which misgendered and deadnamed him.
The Tribunal understands the relief being sought by the Applicant includes: 1. Revocation of the 80 day suspension order alleged to have been made by the Respondent against the Applicant; 2. Revocation of the Respondent's misconduct finding against the Applicant; 3. An opportunity for the Applicant's case (regarding the misconduct allegation) to be heard in-person; 4. Confirmation letters from the University of the Applicant's part-time enrolment, to enable him to have his Centrelink pension restored; 5. Correcting the Applicant's name and gender in the 2018 misconduct records; 6. Revocation of the Respondent's Trespass and Exclusion Notice against the Applicant, to allow him access to Camden Theological Library and student supports, to complete his university degree and attend graduation; 7. Compulsory training on anti-discrimination legislation and a review of the Respondent's complaints process; 8. Revocation of the Respondent's "ban" on lawyers in the misconduct process.

The Respondent's submission

The Respondent denies that it discriminated against the Applicant and denies that Ms Stokes emailed requests to Centrelink to cancel the Applicant's benefits.
The Respondent relies on the statutory declaration of Ms Stokes (Stokes Statement) and refers to the four letters that were provided to Mr Rowley in January and February 2023 including: 1. letter dated 11 January 2023 ; 2. letter dated 16 January 2022 (this letter should have been dated 16 January 2023); 3. letter dated 31 January 2023 ; and 4. letter dated 2 February 2023 .
The Respondent submitted section 144 of the Student Misconduct Rule 2020 provides: A respondent student may bring a support person or an advocate to speak on their behalf at a hearing of an allegation of misconduct. The support person or advocate cannot be a currently practising barrister or solicitor, and must be available at the date and time specified in the notice of hearing.
The Respondent submitted that the Tribunal is unable to grant any of the remedies that the Applicant is seeking, because: 1. The Applicant's application lacks merit, because there is no evidence of substance that the discrimination that has been alleged by the Applicant has occurred; and 2. to the extent that the Respondent still maintains certain records in the Applicant's former name, this is only done to comply with the Respondent's statutory obligations under, for example, the State Records Act 1998 (NSW). This was explained to the Applicant and to ADNSW in the University's letter dated 8 November 2023.

Legal Principles

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, she must investigate that complaint: s 90(1) of the Act. If the President is satisfied at any time of the investigation that the complaint is lacking in substance, she may decline the complaint in whole or in part: s 92(1)(a)(i). 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 [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 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. The Tribunal has power to grant, or to refuse to grant, leave for that part of the complaint accepted for investigation by the President and referred to the Tribunal under s 93A of the Act: s 96(1) of the Act.
Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [25] (Ekermawi). 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 at [57]; Ekermawi 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 at [36], [37]; Jones 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 at [60].
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.
In determining whether leave ought to be granted pursuant to s 96(1) of the Act, the Applicant's evidence must be taken at its highest. That is, everything the Applicant has put in evidence is accepted as true, and then the Tribunal determines whether he could possibly succeed in his complaint of discrimination and victimisation: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35].

Disability Discrimination

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, s 49A of the Act defines disability to include 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).
Section 49B of the Act defines what constitutes disability discrimination: 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) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog. (3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability - (a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or (b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact, is taken to be a characteristic that appertains generally to persons who have that disability. (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.
In order to establish that direct disability discrimination occurred, the Applicant needs to establish the following: 1. That he suffers a disability; and 2. That he was treated less favourably than another person, who did not have his disability, in the same or similar circumstances (sometimes referred to as "differential treatment"); and 3. That one of the reasons he was treated less favourably was because of, or on the grounds of, his disability, or characteristics of his disability (sometimes referred to as "the causation question").
The Applicant bears the onus of proof that he was treated less favourably "on the grounds of", "because of" or "due" (at least in part) to his disability or being a transgender person: see Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99 at [56].
In order to demonstrate less favourable or differential treatment, the Applicant must identify a comparator, either real or hypothetical. If there is no actual comparator with whom to compare the applicant, then a hypothetical comparator may be considered: see Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23].
The words "on the grounds of" have been paraphrased as "because of", "due to," or "a real" reason, a "genuine" reason or "true" reason for the treatment alleged to have been discriminatory: see Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].
It is not the case that because a person has a disability and experiences something they perceive as "adverse" to themself, that the conduct is discriminatory simply because the person has a disability. The person needs to prove on the civil standard that the conduct impugned occurred "on the ground of", "due to" or "because of" the disability, or that was one of the reasons for the conduct. To put it another way, the Applicant is required to prove that a real reason, or the real reason, for the conduct impugned is their disability.
In order to establish that indirect disability discrimination occurred, the Applicant needs to establish the following: 1. That he suffers a disability; and 2. That he was required to comply with a requirement or condition by the Respondent; and 3. A substantially higher proportion of people without his disability comply, or are able to comply, with that requirement or condition; and 4. The requirement or condition is not reasonable in the circumstances of the case; and 5. The Applicant is not able to comply with that requirement or condition.
It is only once disability discrimination has been established, either on a direct or indirect basis, that it can be considered unlawful within the terms of s 49L of the Act. Section 49L makes unlawful certain conduct by educational authorities if done on the ground of a person's disability: 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.
Subsection 49L(1) is not relevant to the Applicant because it addresses admission as a student, and the Applicant is or was already a student of the Respondent. To prove unlawful disability discrimination in education, the Applicant must therefore demonstrate, pursuant to s 49L(2) that: 1. An educational authority (ie, the Respondent) denied or limited him access to a benefit provided by the educational authority; or 1. The Respondent expelled him; or 2. The Respondent subjected him to "any other detriment"; AND 1. The Respondent's conduct (in denying or limiting him access to a benefit, or expelling him, or subjecting him to a detriment) was "on the ground of" his disability (causation).
However, contraventions of s 49L(2)(b) and 49L(2)(a) are not unlawful if the Respondent would experience "unjustifiable hardship" in accommodating the Applicant's disability: ss 49L(4) and 49L(5) of the Act. Section 49C of the Act defines what is meant by "unjustifiable hardship" in the context of disability discrimination: 49C What constitutes unjustifiable hardship In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including - (a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and (b) the effect of the disability of a person concerned, and (c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.

Transgender Discrimination

Section 38A of the Act defines what is meant by a person being transgender in the context of the Act: 38A Interpretation 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.
Direct and indirect discrimination on transgender grounds is in similar terms to the provisions defining direct and indirect discrimination on the grounds of disability. Section 38B of the Act defines transgender discrimination: 38B What constitutes discrimination on transgender grounds (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on transgender grounds if the perpetrator - (a) on the ground of the aggrieved person being transgender or a relative or associate of the aggrieved person being transgender, 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.
In order to establish that direct transgender discrimination occurred, the Applicant needs to establish the following: 1. That he is or identifies as a transgender person; and 2. That he was treated less favourably than another person, who is not a transgender person, in the same or similar circumstances (sometimes referred to as "differential treatment"); and 3. That one of the reasons he was treated less favourably was because of, or on the grounds of, his disability, or characteristics of his disability (sometimes referred to as "the causation question").
Section 38K of the Act makes unlawful certain conduct by educational authorities if done to a person "on transgender grounds": 38K Education (1) It is unlawful for an educational authority to discriminate against a person on transgender grounds - (a) by refusing or failing to accept the person's application for admission as a student, or (b) in the terms on which it is prepared to admit the person as a student. (2) 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. (3) Nothing in this section applies to or in respect of a private educational authority.

Victimisation

Section 50 of the Act makes victimisation of a person unlawful: 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.
In summary, to prove victimisation the Applicant would have to prove that: 1. He did one or more of the things listed in s 50(1)(a)-(d): (the trigger); 2. The Respondent's conduct subjected him to a detriment; and 3. One of the "real, genuine or true reasons" for the Respondent's conduct was because the Applicant did one of the things listed in (a)-(d) (causation): Caroll v Department of Family and Community Services [2015] NSWCATAD 82 at [24]; Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [8], [37].
Whether something constitutes a detriment requires an objective not a subjective evaluation to be undertaken: Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 (Sivananthan) at [41]. The word "detriment" in the context of s 50(1) of the ADA means "loss, damage or injury" that is "real and not trivial": Sivananthan at [40]; and "all that is required... is that the complainant has been placed under a disadvantage as to a matter of substance as distinct from a trivial matter": Bogie v The University of Western Sydney (1990) EOC 92-313; Burns v Sunol [2014] NSWCATAD 62 at [34].
The words "on the ground that" require a direct causal link between the relevant act of victimisation - namely subjecting a person to a detriment - and the reason for that act: Tropoulos v Journey Lawyers [2019] FCA 436; (2019) 287 IR 363 at 475 [323].

Consideration

The Applicant was in receipt of a disability pensioner education supplement (pension) from Centrelink. On 3 January 2023 Centrelink notified the Applicant that his pension was cancelled "as you have reached the end of period payable for your course".
On 9 January 2023 the Applicant telephoned the Course Administration Office of the Respondent and requested a letter from the Respondent stating that he had not yet finished his degree. The Applicant spoke to Ms Joanne Stokes, the Respondent's Course Administration Officer for the School of Theology, and informed her that he needed the letter for Centrelink, to reinstate his Pensioner Education Supplement.

Ms Stokes' conduct and cancellation of the Applicant's course/s

The Applicant alleged the following occurred on 11 January 2023: I contacted UTC reception by phone to ask for a university letter for Centrelink to restore my payments. Joanne Stokes answered the phone. I asked, "Can I have a university letter for Centrelink confirming my CSU BTH enrolment to restore my part time disability studies payments? Joanne Stokes refused, saying an inappropriate discriminatory comment, "You shouldn't be doing any studies and shouldn't be getting any payments." I said, "You cancelled my part time disabilities studies payments for my whole course when I still have three subjects left. Not just one." Joanne said, "Oh." I then blocked Joanne from contacting me and I asked CSU to help me.
The evidence demonstrates that the Applicant had 24 credits, or 3 subjects, remaining to complete his degree as at 20 December 2022. The evidence also demonstrates that the Applicant took a leave of absence for Semester 1 2023.
Ms Stokes' evidence is: I looked at Mr Rowley's record and could see that he had applied for a session of leave for 2023/30 so I made a statement to Mr Rowley to the following effect: If you do not have an active enrolment for the session it is possible that Centrelink may not make payments to you Mr Rowley told me that the letter he was asking for did not need to mention any subjects or enrolments, just that he had not completed the degree and still had subjects to finish, and that Centrelink was looking at his degree as a whole rather than individual subjects or enrolments. I told Mr Rowley that I had asked Anthony Rees to look at Mr Rowley's transcript and that Anthony Rees would be in touch with Mr Rowley shortly.
The submission from Mr Rowley is that: Ms Stokes implied she did not consider people with disabilities should be completing studies and getting disability payments
On the evidence before me, taking the Applicant's evidence at its highest, there is no evidence, other than the Applicant's suspicion, to support a finding that Ms Stokes refused to assist him in obtaining a Centrelink letter, or made any discriminatory comments towards him. Ms Stokes' evidence was that she told the Applicant that she had asked Dr Rees to look into his enrolment and assist him. There was no evidence from the Applicant to the contrary, and Dr Rees did provide the Applicant with a letter in the following days, as is discussed below.
I accept that the Applicant had a conversation with Ms Stokes where she said words to the effect of "you're not doing any studies" and "you do not have an active enrolment" and "you shouldn't be getting any payments", as alleged by the Applicant. However, the explanation provided by Ms Stokes, that she had said "If you do not have an active enrolment for the session it is possible that Centrelink may not make payments to you", in the context of viewing the Applicant's leave of absence for Semester 1 of 2023, provides a more probable, logical and reasonable explanation for her statements than the one suggested by the Applicant. The Tribunal cannot draw a negative inference about the words said by Ms Stokes, even on the Applicant's version, where a more probable and innocent explanation is available: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]).
The Applicant alleged that Ms Stokes unlawfully discriminated against him by cancelling subjects he was enrolled in, and the cancellation of these subjects resulted in the cancellation of his pension.
According to the evidence of Ms Stokes, the United Church in Australia for the United Theological College (UTC) delivers educational courses in the Respondent's School of Theology. Not all courses taught by UTC are delivered every year, and some courses which are scheduled are cancelled due to enrolment numbers. As Course Administration Officer, Ms Stokes was required to inform students who had enrolled in various subjects if their course was cancelled. On 1 November 2022 Ms Stokes wrote to the Applicant to inform him that a course he had enrolled in for Semester 1 in 2023 would not be run at UTC. On 19 December 2022, Ms Stokes wrote to the Applicant again to inform him that the course would not be run at either UTC or the Canberra campuses in Semester 1 2023, and to delete it from his enrolment. Previously, on 22 June 2021, Ms Stokes had written similarly to the Applicant, to inform him that a course he had been enrolled in was not going ahead, and direct him to alter his enrolment.
There is no evidence that Ms Stokes cancelled these (or any other) subjects. The only evidence is that Ms Stokes communicated the Respondent's cancellation of subjects for enrolment purposes, to the students who were enrolled in those subjects. There is also no evidence to suggest that the Applicant experienced differential treatment in relation to the cancellation of subjects, or that he was treated less favourably in those circumstances as a student who was not transgender or without disability.
To succeed in a claim of either disability or transgender discrimination in relation to Ms Stokes' conduct, or the cancellation of subjects by the Respondent, the Applicant would need to demonstrate that: 1. he has a disability, and/or is a transgender person 2. By Ms Stokes' conduct, or by the cancellation of subjects he was enrolled in, he was treated less favourably than another student who either did not have a disability or was not a transgender person (differential treatment); and 3. The reason for the less favourable treatment was because he had a disability or was a transgender person (causation).
The evidence demonstrates that the Applicant is not able to demonstrate either differential treatment or causation in relation to Ms Stokes' conduct or the cancellation of subjects by the Respondent.

Requirement to be full-time

The Applicant also alleged that the Respondent required him to be a full time student, when he was unable to undertake full time study because of his disability. The Tribunal understands this allegation to be one of indirect disability discrimination. To demonstrate indirect disability discrimination the Applicant would need to demonstrate that: 1. The Respondent required the Applicant to study on a full time basis; 2. The Applicant was unable, because of his disability, to study on a full time basis; 3. The majority of persons without the Applicant's disability would be or were able to study on a full time basis; 4. It was not reasonable in the circumstances to require the Applicant to study on a full time basis.
On 11 January 2023 the Respondent provided the Applicant with a letter from Dr Anthony Rees, the Associate Head of School of the Respondent's School of Theology, which stated: This letter is to state that you are still currently enrolled in the Bachelor of Theology with Charles Sturt University through the United Theological College campus in North Parramatta. To graduate in this bachelor degree, students need to satisfactorily complete 192 credit points. You have currently completed 168 credit points. You will be required to successfully complete an additional 24 credit points (or 3 x 8 point subjects) in the appropriate subdiscipline and level to be eligible for graduation.
The Applicant alleged that the 11 January 2023 letter required him to undertake full-time studies in order to obtain the pension from Centrelink, and he was unable to undertake full time studies due to his disability. I do not accept that submission on the basis that the Applicant's evidence, taken at its highest, does not so restrict the Applicant. There is no stated requirement that the studies must be undertaken full time. This "requirement" seems to have been entirely in the Applicant's perception. It is not, on my reading of the letter, a logical or reasonable inference which can be drawn from the words of the letter.
So much was made clear by Dr Rees in his email to the Applicant on 20 January 2023 and his letter of 31 January 2023: I am happy to write a letter next week telling Centrelink that FT studies are inappropriate for you due to your disability. My understanding from your correspondence with us is that you need to be an FT student to receive payments, which lies behind Jo's comments to you … I am unsure what the effect of that will be on your Centrelink payment. My guess would be that they would not support you beyond 24 subjects and that they would not provide support in a semester in which you are enrolled in only one subject, though perhaps I am wrong about that. … Earlier this month you asked me for a letter to send to Centrelink in order to have your study support payments re commenced. Due to the fact that your payments were being stopped, I laid out a plan that allowed you to complete your studies in the coming semester. That allowed you to enrol as a full time student and complete your studies in the most timely fashion. However it is true to say that you need not - from our perspective - complete your studies full time. Indeed you are well within your rights to study at your own pace. Given some of the challenges you face in relation to study, this may well be a preferable option. There may be consequences in relation to your Centrelink payments, but that is an issue for you to resolve…
There being no requirement imposed by the Respondent, there is no indirect disability discrimination.

Misconduct process

The Applicant requested assistance from various support and advocacy organisations including CSU Counselling, CSU LGBTIQA+ Ally Network, CSU Disabilities, CSU Student Advocacy, CSU Student Central, CSU St Mark's National Theology College Canberra, and various academics and employees working for the Respondent, to correct the perceived impact of the 11 January 2023 letter. In those emails to various individuals, he complained about Ms Stokes' conduct and made various other allegations or imputations about the Respondent's employees' conduct towards him.
On 2 February 2023 Dr Rees emailed the Applicant: Hi Rev I am writing to you about the allegations you have made in recent communications with me and on the ASKCSU platform. We understand that making the decision to come forward and report allegations can be stressful, and this is one of the reasons that we provide multiple avenues to report this conduct, and the support mechanisms that we do, such as student advocates and counselling services. Many university staff members have provided you with advice and been in contact with you, detailing the subjects required to meet course requirements, and the many avenues that you can pursue to report your concerns. You have also been offered the support of a student advocate and referral to counselling should the need arise. If you want to pursue a complaint you have been provided with adequate and appropriate means by which to do so. If you are reporting in good faith that a staff member has discriminated against you, you should provide the details to allow an investigation to take place. To date you have made allegations against a staff member in many communications, across multiple areas of the university, yet you have failed to provide evidence to support your allegations. Unless you provide the required information through one of the advised avenues for reporting to allow us to conduct a meaningful investigation, I consider this matter closed and we will not communicate any further on these matters.
The letter continued with a number of links and suggested avenues for student support.
The Applicant responded on 3 February 2023, copied into a number of other university email addresses and private email addresses, with the subject "matter is not closed as a matter of CSU equality with exemption academic integrity": Re: important communication Dear Dr Anthony Rees Thank you for your important communication. It's a good start but the matter is not closed. Here are a few groups I have contacted to add to the list CSU LGBTIQA+ ally network, CSU disability, CSU School of Discipleship, CSU St Marks. CSU student advocacy recommended for me to lodge a university complaint against Joanne Stokes and the no voters. CSU counselling said the matter needs action. Evidence can be found in a Centrelink letter sent to me dated 4th January 2023 when Joanne told centrelink I had finished my CSU BTH studies in 2022 when I still had three subjects left. Evidence can be found in Joanne Stokes emails she send to me cancelling my subjects every time I enrolled in my subjects to complete. Evidence can be found when Joanne said to me by phone "You're not doing any studies and shouldn't be getting any payments" when I asked for a university letter to Centrelink to confirm I am a CSUBTH enrolled continuing part time student to restore my part time disability study payments. The matter is not closed until I am permitted to complete THL320 Homiletics THL238 Mission evangelism and apologetics and THL100 intro to biblical language subjects according to my CSUBTH study plan, Centrelink reduces my full time study load back to part time study load, CSU School of Theology completes CSU LGBTIQA+ ally network training, for Joanne Stokes and the no voters stops cancelling my subjects for my CSUBTH studies and stops cancelling my disabilities studies payments and for Joanne Stokes to stop contacting if she doesn't accept who I am without prejudice. God bless and love in struggle Mr Rev Comrade Rowley+
On 6 February 2023 Melanie Rumball, University Ombudsman/ Privacy Officer - who had been copied into the Applicant's email of 3 February 2023 - responded to the Applicant: Hello Rev I confirm receipt of your email dated 03 February 2023. The Student Advocates have also advised of correspondence received over the weekend and this email response to all your communications. Dr Rees and Student Advocates have provided you with details on how to make a formal complaint to the university. Student Advocates have also provided detailed instructions on how to structure and support your complaint with evidence prior to submission. If you wish to make a formal complaint you may do so by phoning 1800 664 235 or via the online portal here 24 hours a day, 7 days a week. Dr Rees has responded to you on available study paths and will not be responding to you further on this matter as indicated in his email dated 02 February 2023. You have been advised on the subjects required to fulfil the requirement of your degree. It is your choice as to your mode (on campus or distance) and pace (part time or full time) of study. It is your responsibility to manage any correspondence with and eligibility for Centrelink payments. Charles Stuart University have no responsibility for assessing Centrelink eligibility or payments. It is my understanding that Dr Rees has provided you with a letter (that you requested be prepared) detailing what was required to fulfil the requirements of your course. No individual staff member of the School of Theology, including Joanne Stokes, cancels subjects. If the subject is no longer offered in the session that students are enrolled in, enrolment in the subject is cancelled as the subject is not available. This applies to any student enrolled in a subject that does not proceed. This occurs across all faculties within the university as the need arises, for a variety of reasons, usually due to low enrolment numbers. It is unclear what your reference to "no voters" is and how it relates to subject offerings by the School of Theology. The university and specifically Joanne Stokes has no authority or ability to cancel your disabilities studies payments. Centrelink payments are not under the purview of the university and are a matter between you and Centrelink. I take this opportunity to remind you of the University's Bullying, Discrimination and Harassment Prevention policy, specifically clause (19) that states that bullying behaviours may include but are not limited to "repeatedly criticising or making comments intended to discredit or undermine a person or devalue their work". Further to this you have obligations under the Student Charter to behave in a manner that demonstrates respect and tolerance by treating others with courtesy, dignity and respect. Your continued allegations against Joanne Stokes without supporting evidence do not demonstrate courtesy, dignity or respect. If you want to pursue a complaint, you have been provided with adequate and appropriate means by which to do so. If you are reporting in good faith that a staff member has discriminated against you, you should provide the details (with supporting evidence) to allow an investigation to take place. To date you have made allegations against a staff member in many communications across multiple areas of the university, yet you have failed to provide evidence to support your allegations. Pursuant to clause (17) of the Complaints Management Policy, "Making a complaint… is a serious matter, with potentially serious consequences for those involved. Staff or students who use this policy and procedure to make frivolous or vexatious complaints (for example, to harass someone) or who lie or deliberately mislead in connection with the complaint, may be subject to misconduct proceedings." Unless you provide the required information through one of the advised avenues for reporting to allow us to conduct a meaningful investigation, I consider this matter closed and we will not communicate any further on these matters.
The letter continued again with a number of links and suggested avenues for student support. The Applicant responded on 8 February 2023: Dear Melanie I did provide evidence of this occurring but the no voters at UTC are very good at denying their dead naming of me and misgendering of me and discrimination against me using the Mens toilets and their discrimination against me wearing a Mens clergy collar and their discrimination against me wanting to be called by my name and pronouns and the discrimination against my transgender research and their discrimination against me being an ordained transgender male student and their discrimination against my CSU BTH study plan and the discrimination against my rainbow socialist history of campaigning for marriage equality and theyre I hate you comments against me every time I do a class presentation and their discrimination against me getting disability Centrelink payments and their counselling of subjects I enrol in but you know it doesn't matter if get bullied and discrimination against because they know voters at UTC always say nothing happened here and let's all blame Rev to death for their bullying and discrimination against me in which no one cares to even check to see if I am OK because nothing happened right and nobody bothered to even investigate why Rev lives in 24/7 fear of going to UTC every day since 2017 and studies online in Canberra. Cause nothing happened right?
He explained in further emails that "no voters" was: A term I used to describe those who were against us campaigning for marriage equality who are transphobic and also discriminate against my disability who tried to be the gatekeeper of my degree and if I refuse to change my CSU BTH study plan or speak up about it they attack me to the point of making threats of getting me cut off from completing my degree…
On 8 February 2023 Ms Rumball responded to the Applicant as follows: Hello Rev Thank you for your email. Your last complaint to the University Ombudsman was made on 08 March 2022 and following an investigation into your allegations, a notice of outcome, outlining the findings of this investigation was provided to you on 11 April 2022. Your allegations were not substantiated. As outlined in my earlier email, to date, you have made many allegations against the University and its staff yet failed to provide any evidence to support your allegations. Your email to me below continues to make allegations without supporting evidence. I urge you to read my email to you dated 06 February 2023 that contained important information in relation to your concerns and how to raise these concerns appropriately. As I have advised in my earlier email, the University's Bullying, Discrimination and Harassment Prevention Policy specifically clause (19) that states that bullying behaviours may include but are not limited to "repeatedly criticising or making comments intended to discredit or undermine a person or devalue their work." Further to this you have obligations under the Student Charter to behave in a manner that demonstrates respect and tolerance by treating others with courtesy, dignity and respect. Your continued allegations against university staff without supporting evidence do not demonstrate courtesy, dignity or respect. Should you continue to make these allegations without supporting evidence your correspondence will be referred to Student Misconduct without further notice.
The Applicant submitted that the letter of 6 February 2023 from Ms Rumball unfairly threatened him with misconduct proceedings and had the effect of preventing him from being able to access any support. He also submitted that because Joanne Stokes sent the emails cancelling the subjects, she was the one who was cancelling the subjects.
On 13 February 2023 the Respondent suspended the Applicant and sent him a notice to that effect via email (Suspension Notice). The suspension restricted him from accessing student or administrative spaces, with a direction not to contact or approach Ms Stokes. The suspension was stated to apply until any misconduct allegation against the Applicant had been decided, and provided as the reason for the suspension order: …because I have received an allegation that you have engaged in inappropriate communication with members of the United Theological Staff. You have continued to make threats of complaints regarding university staff and despite being given support and advice on correct process have failed to [do] this and have continued [to] harass staff. The order will prevent or minimise the risk to health, welfare and safety of all staff involved in this matter, including yourself.
The Suspension Notice invited the Applicant to make submissions in writing by 16 February 2023.
On 15 February 2023, the Respondent notified the Applicant that allegations of misconduct had been received against him. The Applicant was invited to respond to the allegations in writing by 1 March 2023. The Applicant was also given the option of a hearing: You also have the option to request to be heard in person. If you do request this, you will need to attend the hearing either by phone or video conference. You can bring a support person and/or an advocate to speak for you. If you do want to be heard in person please let me know this as soon as possible by email.
On 16 February 2023 the Applicant sought an extension of time from the Respondent in relation to the Suspension Notice. Across at least 3 emails, the email requesting the extension of time repeated the same allegations he had been making against Joanne Stokes and the University, and stated: Hi I have attached a copy of my autobiography "Call me by my name Mr Rev Comrade Rowley" to help educate you about me and why I can't eat and why I can't sleep until the suspension order is revoked for the equal right to complete my education without discrimination. I have more evidence to give all I wanted is a university letter for Centrelink to restore my part time disability studies payments to help cover the cost of the three remaining subjects I got left on my degree. … the reason why I don't lodge university complaints is because my complaints just get disregarded no matter how much evidence I got to give and no one has taught me how to lodge a university anti discrimination complaint that will get heard and listened to because I am not a lawyer I'm just a student with no wealth or power or privilege. I just have a wealth of knowledge and experience to give.
On 16 February 2023 the Applicant also sent an email electing to have a hearing in relation to the misconduct allegations, stating: I elect a hearing. I request an extension of time to submit my evidence and to find a CSU transgender asexual disabilities survivor ally student advocate to help me get my case heard for the equal right to complete my studies without discrimination or bullying. An immediate 10 day suspension was implemented without a fair trial or hearing on the matter. I was only given two days notice of this occurring to submit written evidence and had to work 48 hours straight with no time to organise my case or to submit all of my evidence or to eat or sleep or find anyone who could help me and at risk of dropping dead of a heart attack and multiple seizures if I'm expected to work my guts out 24/7 with my blood sweat and tears without anyone who will come to my aid who can help me get my case heard without prejudice as a matter of life and death and an education future where we transgender disability student voices matter in the CSU School of Theology…
On 17 February 2023 the Respondent informed the Applicant that his submission had been considered and the suspension order would continue. On 20 February 2023 the Respondent confirmed that the hearing for the misconduct allegation would be held on 9 March 2023 via zoom and he was able to attend that hearing with his nominated support person, as long as that person was not a solicitor. The Respondent noted that Rule 144 of the Student Misconduct Rules allowed a support person or advocate who was not a currently practising barrister or solicitor.
The Applicant alleged that the Respondent's failure to provide him with an extension of time in relation to making a written submission regarding his suspension was indirect disability discrimination. His evidence, which I accept, was that he attempted to obtain support from various student services to assist him in preparing a written response and he was unable to arrange this in the short period of time he was given, between 13 and 16 February 2023. He made verbal requests initially and then made requests in writing, but was informed that 2 days' notice was not enough time to assist.
In order to demonstrate indirect disability discrimination, the Applicant would need to demonstrate: 1. That he suffers a disability, which is not in dispute, and which the Tribunal accepts; 2. That the Respondent imposed a condition or requirement on him, which is the requirement to respond in writing to the Suspension Notice within less than 3 days from notification, and within 1 day of receiving the actual allegation of misconduct on which the suspension relied; 3. That the majority of persons without the Applicant's disability would be able to or could comply with that requirement or condition; 4. That the Applicant was unable to comply with that requirement or condition because of his disability; and 5. Which was not reasonable in the circumstances.
Taking the Applicant's evidence at its highest, I find that the Applicant's complaint of indirect disability discrimination in relation to the Suspension Notice has substance. The next question for the purpose of determining whether the Applicant's complaint has substance is whether such discrimination was actually unlawful, pursuant to s 49L of the Act. The indirect disability discrimination in imposing a requirement to answer the Suspension Notice within 3 days, and within 1 day of receiving the Misconduct allegation, would most relevantly be considered "any other detriment" within the meaning of s 49L(2)(c). However, there is no evidence of causation - evidence by which the Tribunal could find or infer that the reason for subjecting the Applicant to this "detriment", or "requirement", was because of his disability, or characteristics of his disability.
The Tribunal therefore finds that the Applicant is unlikely to be able to make out the causation element of the indirect disability discrimination in education allegation.
Even if the Applicant was able to demonstrate causation on the basis of future evidence (which is currently not before the Tribunal), there is the question of what relief could be provided by the Tribunal pursuant to s 108 of the Act. None of the relief sought by the Applicant, expressed at paragraph 11 above, appears appropriate in relation to this particular contravention. It seems highly unlikely, on the evidence before the Tribunal, that giving the Applicant some additional time to prepare a response to the Suspension Notice would have ultimately made any impact on the imposition of, or length of, the suspension, because this was imposed by the Respondent pending the outcome of the misconduct process.
I therefore agree with the President's assessment that the Applicant's disability discrimination complaint is lacking in substance, in relation to the suspension.
The Applicant's complaint also alleged that the hearing of the misconduct allegation, held on 9 August 2024, was discriminatory because he was unable to attend in person. I accept that the Applicant requested to attend the hearing in person and the Respondent, nevertheless, conducted the hearing via zoom. However, there is no evidence to suggest that there was any differential treatment of the Applicant as a result of the Respondent's decision to conduct the hearing via zoom. Nor is there any evidence that there was any causal connection between the Respondent's decision to conduct the hearing via zoom, and the Applicant's disability. Accordingly I agree with the President's assessment that the Applicant's disability discrimination complaint is lacking in substance, in relation to the misconduct hearing.
The Respondent's findings of fact against the Applicant following the misconduct hearing were: After careful consideration of the allegations and the evidence before the Student Misconduct Committee, they have made the following findings of fact in relation to the misconduct: You have harassed Charles Sturt staff via your email correspondence The tone and content of your emails were written in a matter that has caused harm to Charles Sturt staff You have failed to meet the standards of behaviours as defined in the University's Student Charter clause 7 You have behaved in a way that is unreasonable and is considered reprehensible"
On 14 March 2023 the Applicant was notified that the outcome of the misconduct hearing was a decision to exclude him from the University for five years effective immediately (Rowley Misconduct Decision). The Applicant appealed the outcome of the misconduct hearing. The appeal was heard by the Respondent on 26 April 2023. By letter dated 1 May 2023 the Respondent informed the Applicant that his appeal had been dismissed and the original decision that was made following the hearing on 9 March 2023 was upheld.

Transgender discrimination

The Rowley Misconduct Decision included the following reasons for the decision: The Student Misconduct Committee considered the evidence before them, including your response to the allegation and your verbal statements provided during the hearing. The evidence demonstrated that university staff communicated with you in a courteous and respectful way and have provided you with multiple opportunities to engage with the university utilising the channels available to all students to resolve the issues raised by you. You did not avail yourself of these and continued to repeatedly communicate in an abusive and threatening way towards Charles Sturt staff. The committee considered your previous misconduct record when imposing a penalty. You have been found to have engaged in general misconduct previously, behaving inappropriately in an SRC meeting. The committee are of the opinion that you have not taken the opportunity to learn from your previous penalty nor modified your behaviour. The university values its staff, and their safety and wellbeing are a priority. The committee has decided that the behaviour demonstrated by you will not be condoned at Charles Sturt and therefore it was necessary to impose an appropriate penalty.
The Applicant submitted that the previous misconduct referred to in the Rowley Misconduct Decision was a misconduct allegation against him in 2018 which had been dismissed, and that he had been assured by the Respondent in relation to that misconduct allegation that he would receive no reprimand, no further action would be taken, and it would not be recorded on his student record. On review of the relevant letter dated 6 March 2018 by the Respondent to the Applicant, and the Respondent's submissions, it appears that the Applicant has misunderstood that letter and he was reprimanded: The General Misconduct Appeals Committee, after due consideration, has denied your appeal on the finding of the misconduct, and upheld the penalty imposed on you, being a reprimand. In communicating this, the committee confirms that no further action will be taken against you in relation to this matter of misconduct. The committee also notes that the reprimand is a warning only, and as such will not be recorded on your student record nor communicated to your fellow students, unless you choose to do so.
Whether or not the Respondent should have taken into consideration the previous allegation of misconduct in determining the penalty to be imposed on the Applicant for the more recent misconduct allegation is not an issue which is reviewable by the Tribunal. It serves only to provide context for the Applicant's transgender discrimination allegation, which is that the Student Misconduct Committee must have considered and had regard to records from 2018, in which he is referred to by his 'deadname' and in which he is misgendered. The Respondent submitted that it only maintains such records to comply with its statutory obligations under, for example, the State Records Act 1998 (NSW).
The Applicant also alleged that the requirement for him to modify his behaviour, referred to in the Rowley Misconduct Decision, inferred a requirement for him to "modify my transgender behaviour" and constituted transgender vilification.
I acknowledge that the Applicant has suffered distress at being reminded of documents and records which deadname and misgender him. However, the fact that such documents exist, or that they negatively impact the Applicant, does not demonstrate discrimination. Discrimination requires differential treatment and causation, of which there is no evidence.
Direct transgender discrimination would require the Applicant to prove that he had been treated less favourably than someone who was not transgender, in the same or similar circumstances. The same or similar circumstances would be the Respondent's consideration of previous misconduct allegations when determining what penalty should be imposed on an individual where an allegation of misconduct was upheld. There is no evidence that supports the Tribunal finding that any other person, transgender or not, would be treated any differently to the way the Applicant was treated by the Respondent in the circumstances. Even if there was differential treatment, there is also no evidence of any causal connection between the Respondent's conduct in considering the Applicant's previous misconduct findings, and him being a transgender person.
Indirect transgender discrimination would require the Applicant to be required to comply with a requirement or condition, which the majority of non-transgender persons would be able to comply, which was not reasonable, and with which he was unable to comply. Although not expressly stated by the Applicant, I understand his complaint of indirect transgender discrimination to involve the Respondent imposing on him a requirement to "modify his behaviour", which he took to mean "modify his transgender behaviour". I accept that the Respondent placed a requirement on him to modify his behaviour.
I don't agree with the inference the Applicant has drawn, that the behaviour modification being referred to by the Respondent had anything to do with his transgender identity or behaviour. The most logical, reasonable, probable, and innocent explanation on the available evidence is that the behaviour being referred to by the Respondent in the Rowley Misconduct Decision is the behaviour the Applicant had been engaging in which resulted in his 2018 misconduct finding and the 2023 misconduct finding. Underlying those findings is the University's requirements, for the Applicant to behave in a manner that demonstrates respect and tolerance by treating others with courtesy, dignity and respect. I therefore don't accept that there is evidence that the majority of persons who were not transgender, would be able to comply with the requirement being imposed by the Respondent. Even if I were to accept that the Applicant is unable to comply with a requirement to modify his behaviour, to "behave in a manner that demonstrates respect and tolerance by treating others with courtesy, dignity and respect", I do not consider that requirement is unreasonable in the circumstances. The Applicant's complaint of transgender discrimination is therefore lacking in substance.
A complaint of transgender vilification was mentioned for the first time at hearing, and the Respondent did not address it in submissions. To demonstrate transgender vilification the Applicant would need to prove that the conduct complained about was a public act, and that it incited hatred towards, serious contempt for, or severe ridicule of him on the ground that he is a transgender person. There is no evidence before the Tribunal of a public act by the Respondent, and no evidence of incitation of hatred, serious contempt, or severe ridicule of the Applicant on the ground that he is transgender. The Applicant's perception is not sufficient for evidentiary purposes in that respect. Accordingly I find that there is no substance to a complaint of transgender vilification of the Applicant by the Respondent.

Victimisation

The Applicant alleged that: In 2018, 2019, 2021, 2022 I lodged a CSU Anti discrimination complaint about the Transphobic bullying I was experiencing at United Theological College North Parramatta as a result of CSU not correcting my name and gender on all my CSU student records.
Victimisation pursuant to ss 50 of the Act requires a "trigger", as explained above at [39] to [42]. Although not expressly stated, the Tribunal infers that the Applicant relies on s 50(1)(c) or 50(1)(d) for that "trigger", on the basis that he claims to have previously lodged anti discrimination complaints with the Respondent.
The Applicant alleges a range of detriments resulting from the Respondent's conduct towards him. These include the suspension, the misconduct allegation, process, hearing, appeal and finding, the inability to complete his degree, periods of sleeplessness and illness, both physical and mental. Tribunal is required to accept the Applicant's complaints at their highest, hypothetically assuming that these allegations of detriment are factually correct for the purpose of assessing this leave application.
For the purposes of these reasons, the Tribunal accepts that the Applicant has suffered a detriment (although is unsure specifically what detriment is relied upon by him).
Having accepted for the purpose of this leave hearing that the Applicant suffered a detriment or detriments, the Applicant must then prove causation, by showing that the detriments arose because of, or that they could be attributed to the trigger discussed above. There is no evidence, however, that any of the Respondent's conduct, complained about by the Applicant, was engaged in by the Respondent because the Applicant had previously made a complaint or complaints of discrimination. There is therefore no evidence before the Tribunal that any detriment imposed by the Respondent's conduct was causally connected to the trigger.
Accordingly the Applicant's complaint of victimisation is lacking in substance.

Should leave be granted or not granted?

As to whether it would be fair and just in all the circumstances for leave to be granted, I have regard to the purpose of the legislative scheme established by the Act and am guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme. I appreciate the significant detriment experienced by the Applicant as a result of the imposition of the suspension order made by the Respondent, the misconduct process and findings, and the serious penalty imposed by the Respondent as a result of the Rowley Misconduct Decision.
I also take into consideration the Respondent's submission that these proceedings are essentially being impermissibly used by the Applicant to obtain a review of the Rowley Misconduct Decision, in circumstances where an application for review of that decision brought by the Applicant was dismissed by the Tribunal for lack of jurisdiction on 20 June 2023. The Applicant's complaint in these proceedings was submitted to the ADNSW shortly thereafter, on 24 June 2023.
I also take into account the manner in which the Applicant presented his application for leave, which tended to suggest an inability to engage with the issues raised by that application, an inability to understand or implement directions made by the Tribunal, and an inability to understand how to reasonably present evidence in the most basic way. This issue, however, is of limited weight in comparison to the Tribunal's other considerations.
Most significantly, I take into consideration that the Applicant's complaint was almost entirely lacking in substance. The only issue which had some substance was the complaint of indirect disability discrimination in relation to the Suspension Notice, but as discussed above, there is no substance to a complaint that this indirect disability discrimination was unlawful pursuant to s 49L of the Act
In all the circumstances, it would not be fair and just to allow the complaint to proceed. The Tribunal therefore declines to exercise its discretion to grant leave pursuant to s 96(1) of the Act.

Order 1. Leave is refused for the Applicant's complaint to proceed pursuant to 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: 13 August 2024

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Judgment (16 paragraphs)

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Cases Cited (10)