Thiab v Western Sydney University

Supreme Court of NSW|2022-05-16|Before: Parker J

Judgment

Section 35 of the Western Sydney University Act 1997 ("WSUA") prohibits Western Sydney University (the "University") from discriminating against its students on the ground of religious or political views or beliefs. These proceedings concern the reach and application of that prohibition.
The plaintiff, Nera Thiab, is a student in one of the degree courses offered by the University, namely Bachelor of Nursing and Midwifery. Ms Thiab has successfully finished her course work but needs to complete a certain number of hours in clinical placements in order to satisfy the requirements for the grant of her degree.
Clinical placements are usually organised by the staff of the School of Nursing and Midwifery ("SoNM") within the University. In October last year Ms Thiab's then placement was cancelled by Ms Leanne Hunt on behalf of the University. Ms Hunt also intimated that internal disciplinary proceedings would be brought against Ms Thiab. Ms Hunt is a senior lecturer at the University who holds the post of Deputy Director of Clinical Education (Nursing) within the SoNM.
The reasons for Ms Hunt's actions were the subject of evidence in these proceedings and I will address them in more detail in due course. For present purposes it is enough to say that Ms Hunt took action against Ms Thiab over Ms Thiab's attitude, or perceived attitude, to vaccination against Covid-19. Again, putting the matter neutrally for the moment, Ms Thiab had expressed scepticism about the safety of the vaccines which were available at the time.
In March this year (while these proceedings were awaiting a hearing) the University's disciplinary proceedings against Ms Thiab resulted in a "report and determination" by a disciplinary tribunal constituted by Associate Professor Leeanne Heaton. Professor Heaton holds the post of Deputy Dean for the SoNM.
Professor Heaton decided that, among other things, Ms Thiab must apologise for her conduct and write a one thousand-five hundred word "appreciation" on how that conduct was a breach of her professional obligations. Ms Thiab has so far refused to do this, and the University will not be allocating her any further placements until she does so. Ms Thiab has launched an internal appeal but that appeal has not yet been heard.

Claims for determination

The summons in these proceedings was filed on behalf of Ms Thiab in November last year. Her contention was that in terminating her clinical placement, the University had contravened s 35. The first defendant in the proceedings was the University itself. The second defendant was Ms Hunt.
The proceedings were begun on an urgent basis. On Ms Thiab's behalf an application was made to the Duty Judge for interlocutory injunctions, including mandatory injunctions, but that application was refused.
On 1 March this year the proceedings were listed for hearing on 21 April. The hearing was allocated to me and on 14 April I convened a pre-trial directions hearing. By this stage Professor Heaton had made her decision in the disciplinary proceedings. It became apparent at the hearing that the case would not be ready for hearing as scheduled. Accordingly, I re-fixed the hearing for 16 May, granted leave to amend the summons, and fixed a timetable for further evidence.
In its amended form, the summons seeks declarations that the University's conduct was in breach of s 35 and orders requiring the University to arrange further placements for Ms Thiab. The summons also seeks orders restraining any "further" disciplinary proceedings against Ms Thiab (this prayer for relief in the summons is unchanged from the form it took when the summons was filed last November).
In the course of the hearing before me on 16 May, counsel for the plaintiff made an oral application to make a further amendment to the summons. Last year, when Ms Thiab was unable to arrange officially sanctioned placements through the University, she arranged to do some work with Dr Joseph Nicholas, who is a doctor in practice in Fairfield Heights. The idea was that her work with Dr Nicholas could count as placements for the purpose of qualifying for her degree. The application was to add to the prayers for relief in the summons an order requiring the University to approve Ms Thiab's work with Dr Nicholas as a placement for the purpose of her degree requirements.
I doubted that the Court could properly make an order in the form sought. As I describe below, the University has a formal placement policy which covers such matters as accreditation and reporting. Approving Ms Thiab's work with Dr Nicholas as a clinical placement would require administrative and clinical judgments to be exercised by the University staff. In particular, it would be necessary to analyse the training provided by Dr Nicholas in order to determine whether it complied with the University's academic standards. The Court could not dictate to the relevant University staff how such judgments should be exercised.
Furthermore, if the amendment had been permitted new factual areas would have been opened up. The University would have needed an adjournment to respond. Given the procedural history I thought that the application came too late. I therefore refused it.

Chronology of key facts

The peak professional body for nurses is the Nursing and Midwifery Board of Australia ("NMBA"). It operates under the auspices of the Australian Health Practitioner Regulation Agency ("AHPRA").
Three publications of the NMBA were in evidence and were referred to in submissions. The first is the NMBA's Code of Conduct for Nurses. The second is the NMBA's Standard of Practice dated June 2016. The third is the NMBA's position statement on Nurses, Midwifes and Vaccination dated October 2016. Obligations of nurses as set out in these documents are picked up by the policy documents under which the SoNM and the New South Wales Health Department operate.
The University has a formal written placement policy. The policy in evidence is dated 12 October 2021, which post-dates some of the events which are relevant for the purpose of these proceedings, but no point was taken about this. I assume that there is no relevant difference between the policy in evidence and its predecessor.
The NSW Health Department has also issued a policy directive covering nursing placements. This is dated December 2016. There is some overlap in subject matter between the two policy statements, but it was not suggested that there was any inconsistency relevant for the purposes of this case.
Both placement policies contemplate that the student's "placement organisation" (in this case the University) will appoint a "facilitator" who is present at the relevant hospital or other institution. The facilitator's role, as the name suggests, is to liaise between the hospital and the placement organisation.
Both policies also impose obligations on students undergoing placement. The Health Department policy, for instance, includes obligations to obtain certain vaccinations. The University's policy also imposes conduct obligations on students while they are on placement and provides for their time during the placement to be the subject of an assessment.
Consistently with these policies, there are student placement agreements between the University and the NSW Department of Health under which the University's students are placed at hospitals or other health institutions. These agreements govern the terms on which students may be placed with the relevant institution.
Ms Thiab appears to have begun her nursing degree course at the University in 2018. This will permit her, on graduation, to proceed with accreditation as a Registered Nurse ("RN").
Ms Thiab completed her course-work requirements in November 2020. Following this, she was obliged to undertake 800 hours of clinical placements in order to qualify for her degree. The placements were organised by a group of University staff within the SoNM known as the "Clinical Placements Team". The Team has its own email address and reports to Ms Hunt.
By late August Ms Thiab had 424 hours of placements to go. She was scheduled to undertake placements with St George Hospital (30 August to 24 September), the Children's Hospital at Westmead (25 October to 12 November) and Liverpool Hospital (15 November to 3 December).
Ms Thiab attended the St George Hospital on 30 August to begin her scheduled placement there. But during orientation, Ms Thiab had a conversation with Ms Sui Reardon of the Hospital which ended in her placement being cancelled before it began. Ms Reardon's title was "Nurse Educator". She was responsible for co-ordinating clinical placements from the Hospital's end.
In the course of the conversation with Ms Reardon, Ms Thiab expressed views about Covid-19 vaccination which Ms Reardon found unsatisfactory. In particular Ms Reardon interpreted these statements as "spreading misinformation" about Covid-19 vaccines and saying that "Dr Kerry Chant was wrong".
For anyone reading this judgment who did not experience, or does not recall, the events of the past two years, Dr Kerry Chant was (and is) a senior official in the NSW Ministry of Health. She held (and holds) the positions of Chief Health Officer and Deputy Secretary, Population and Public Health. During the pandemic she frequently appeared at media conferences with the Premier and the Minister for Health and came to be seen, not least because of statements made by the Premier and the Minister themselves, as the architect of the Government's Covid-19 policy. That policy included the promotion of vaccination and the imposition, by means of Public Health Orders, of vaccine mandates and other restrictions on a wide range of work and leisure activities.
The Government's policy has attracted some controversy from "anti-vaxxers" who question the safety of Covid-19 vaccination, and from libertarian groups more generally. Not all of this controversy has come from the same direction. At times there was criticism of the Cabinet from some quarters on the ground that, supposedly, recommendations by Dr Chant were not being implemented in their full rigour.
At the time of the conversation between Ms Thiab and Ms Reardon, there was no vaccine mandate which applied to the undertaking of nursing work in hospitals generally. But the St George Hospital required that any nurse working in Intensive Care be vaccinated, or undertake daily rapid testing. Ms Thiab was not at the time vaccinated and was reluctant to be vaccinated.
Ms Thiab asked Ms Reardon whether she could confine her work to non-critical wards but Ms Reardon refused. Ms Reardon asked Ms Thiab whether she would submit to rapid testing. Ms Thiab declined because this would require screening swabs about which she also had reservations (these were reservations about the possible risk of cancer, and had nothing to do with Covid-19). She was then sent home.
A report was made by Ms Reardon to the SoNM which came to Ms Hunt's attention. Ms Hunt cancelled all of the placements arranged for Ms Thiab. The placements which were cancelled included the placements with other institutions which extended from late October to early December.
On 10 September, Ms Thiab emailed the SoNM, providing certification that she had been vaccinated. On the strength of this, at the end of September she was allocated a new placement to begin on 25 October. This placement was with the Macquarie Fields Vaccination Hub.
Ms Thiab attended the Hub on 25 October, but again her placement was cancelled before she undertook any clinical work. During induction she became involved in a discussion with an RN with whom she would be working. Again, there was a disagreement about the general merits of Covid-19 vaccination. The nurse reported the issue to the University's facilitator. They agreed that the placement should proceed with Ms Thiab being carefully monitored. Instead, however, when Ms Hunt learned of what had happened, she cancelled the placement entirely. She also indicated that Ms Thiab would face disciplinary proceedings.
Ms Thiab's summons was filed, initiating these proceedings, on 22 November. Ms Hunt considered whether to put the disciplinary proceedings on hold until these proceedings were completed but decided to go ahead anyway.
A formal letter was issued to Ms Thiab in January. Ms Thiab attended an initial interview but took the position that she would address the complaint in her evidence in these proceedings. The disciplinary proceedings continued, effectively uncontested. Professor Heaton's decision and report was issued on 22 March. Ms Thiab's internal appeal was launched on 22 April. It has not yet been determined.

Witnesses

Ms Thiab's case consisted of affidavits from herself and Dr Nicholas. As a result of my refusal of the amendment application at the hearing (see [11] above) I ruled Dr Nicholas' evidence inadmissible. Ms Thiab was not required for cross-examination.
For the University, affidavit evidence was given by Ms Hunt and Professor Heaton. Each of them was cross-examined and I will say more about their evidence, to the extent necessary, below. It is not necessary to make any general observations on their credit.

Cancellation of clinical placements

The documentary evidence concerning the events of 30 August begins with an email from Ms Reardon at St George Hospital to "Tracey" at the SoNM, sent at 12:00 pm. The email relevantly stated (emphasis added): Thank you for taking my call this morning. We have had two "No shows". [XX] and [XX] … did not arrive. Nera … did arrive but she said that she was not going to comply with our Public Health Orders. I had to say that she therefore could not attend this clinical placement. I will send you another email with the latest directions I have received with regards to vaccination requirements. Whilst I was not able to talk to Nera at length it became apparent that she was vaccine hesitant, espousing misinformation that has been circulating and stating that Dr Kerry Chant was wrong. She was not even agreeable to screening swabs citing that regular swabbing would eventually cause cancer. Before she left I cautioned her that her decision will impact her future career.
At 2:55 pm Ms Hunt emailed Ms Thiab (emphasis added): I have been advised by St George Education that your placement was today terminated. They have also advised that you are refusing to comply with the Public Health Orders and were espousing misinformation that has been circulating and stated that Dr Kerry Chant was wrong. You were also not agreeable to screening swabs citing that regular swabbing would eventually cause cancer. … Nera based on this information I am going to cancel the remainder of your placements [details of which were set out] … Nera if you are not going to follow the public health orders then you cannot go to clinical placement and cannot complete this program or become a registered nurse. Being a registered nurse means that you are registered 24/7 and that you uphold the standards of nursing 24/7. Anti-vaccination messaging and spreading misinformation is not in line with what is expected in the profession and as if you were a RN this would be reported to Aphra [sic: AHPRA]. You are in a respected position in the community and your opinion is not what is required, we are here to provide evidence-based facts from well sourced areas to the community. I have provided the NMBA position statement on vaccinations and the Public Health Order mandating all staff, including students, are to be vaccinated, please also refer to our Code of Conduct, Code of Ethics and Standards of Practice. I have also cc'd in your academic course advisor into this email who may be able to offer some assistance.
At 3.30 pm Ms Thiab emailed the Clinical Placement Team (emphasis added): I attended today's orientation for my placement but was turned away because I have not received the COVID-19 vaccine. I was told that I will not be able to complete my placements without the vaccine. I completed my studies in 2020, and now I have several weeks of placement remaining before I am able to graduate. However, it appears that my opportunity to graduate is being threatened due to my vaccine hesitancy. So, I write with regard to the matter of potential COVID 19 vaccine and my desire to be fully informed and appraised of all facts before going ahead. I would be most grateful if you could please provide the following information in accordance with statutory legal requirements. 1. Can you please advise the approved legal status of any vaccine for the current Delta variant, and, if it is experimental? 2. Can you please provide details and insurances that the vaccine has been fully, independent and rigorously test against control groups and the subsequent outcomes of those tests. 3. Can you please advise the entire list of contents of the vaccine I am to receive and, if any are toxic to the body? 4. Can you please fully advise of all the adverse reactions associated with this vaccine since its introduction? 5. Can you please advise of the safety and efficacy of the vaccine in pregnant women, and the effects of the vaccine in breastfed infants. 6. Please advise of the effects of the vaccine on fertility? 7. Can you please confirm that the vaccine you are advocating is NOT "experimental mRNA gene altering therapy'? 8. Can you please confirm that I will not be under any duress from yourself as my school of education, in compliance with the Nuremberg Code? 9. Can you please advise me of the likely risks of fatality should I be unfortunate to contract COVID-19 and the likelihood of recovery? Once I have received the above information in full, and I am satisfied that there is NO threat to my health, I will be happy to accept your offer to receive the treatment but with certain conditions - namely that: 1. You confirm in writing that I will suffer no harm. 2. Following acceptance of this, the offer must be signed by a fully qualified Doctor who will take full legal and financial responsibility for any injuries occurring to myself, and/or from any interactions by authorised personnel regarding these procedures. 3. In the event that I should have to decline the offer of vaccination, please confirm that it will not compromise my opportunity to graduate. I would also advise that my inalienable rights are reserved. …
At 6:33pm that evening, Ms Thiab emailed Ms Hunt (emphasis added): I explained my vaccine hesitancy to the Educator [Ms Reardon] based on the information provided in the FDA briefing document for the Pfizer vaccine (see attached document). I was stating that we currently have insufficient data on the safety and efficacy of the vaccine in certain groups eg pregnant women. The educator told me that the vaccine is safe and approved, and that I am spreading misinformation. Please see the following from the FDA document. 8.4 Unknown Risks/Data Gaps Safety in certain subpopulations There are currently insufficient data to make conclusions about the safety of the vaccine in subpopulations such as children less than 16 years of age, pregnant and lactating individuals, and immunocompromised individuals. According to the above statement, in my opinion it is not I who engaged spreading of misinformation. Additionally, when I raised the concern of possible vaccine-induced myocarditis, the Educator dismissed the danger and severity of stating "that is only mild and will easily resolve. Considering the heart's unique physiology, inflammation can lead to the development of scar tissue, and, as we know, the cells of this vital organ can not regenerate. Therefore, this poses serious risks of chronic cardiac issues. Another concerning issue is that, when I asked the educator what is the benefit of the vaccine regarding the Delta variant, she responded that "I'll be protecting myself and others, prevent hospitalisations by stopping infection and transmission". As advised by Gladys Berejiklian and Dr Chant, as well as the Director of CDC, Rochelle P Walensky - those who are vaccinated are as infectious as the unvaccinated. ... A study conducted by Bloomberg School of Public Health concluded that, among the 469 cases identified, 75% were among those fully vaccinated and 79% experienced symptoms of COVID. Genomic sequencing conducted in 133 cases revealed that 89% had the Delta variant - (no significant difference between vaccinated and unvaccinated). Additionally, 4/5 hospitalised cases were among the vaccinated individuals. I am deeply shocked and concerned about the statements the Educator made and asked her to provide me with evidence of her sources to which she replied "I don't have time for this". I highlighted that as nurses we are taught and encouraged to think critically, vet literature, evaluate data and make informed decisions based on that. My statement was met with contempt, I was instructed to just follow the health orders. This is a very concerning issue that someone in her position can make such unverified claims especially to students due to their lack of experience. The sources provided, one can arguably rely upon and should not be considered misinformation as you term it. University students are encouraged to objectively weigh sources in arriving at their own conclusion. From my perspective, I have investigated all possible sources. Accordingly, misinformation would imply that my sources relied upon are not credible, which is incorrect. Last not but least, I have already email clinical placement team, requesting that they kindly provide me with information regarding the vaccine I am forced to take in order to complete my degree. So, I have attached a copy of the questions in this email, as well.
The correspondence was copied to Professor Heaton. She appears to have tried to contact Ms Thiab by telephone, but Ms Thiab asked her to communicate by email. On 2 September Professor Heaton obliged. Her email to Ms Thiab relevantly stated (emphasis added): I recognise that you have every right to have questions about vaccination for COVID-19, however it is important that you understand that a NSW Public Health Order is not a WSU policy. ... You have already been turned away from a clinical placement due to not being vaccinated. As you remain unvaccinated, you are unable to be verified with NSW Health, therefore you are not eligible for clinical placement. … Therefore if you are not able to attend clinical placement, you will not be able to meet the requirements of the course or, be deemed eligible for registration as a nurse … I am advising you that if you continue to remain opposed to vaccination, that is absolutely your right, however I would strongly encourage you to reconsider a career in nursing or any other health related role in the future.
There appears to have been no direct reply to Professor Heaton's email. But Ms Thiab evidently decided that she would be vaccinated after all. On 10 September she wrote to the Clinical Placement Team: My clinical placements were cancelled due to my vaccination status. I have attached a copy of my immunisation certificate in order to continue my clinical placements.
Matters thereafter appear to have proceeded smoothly until 25 October when Ms Thiab attended the Macquarie Fields Vaccination Hub to resume her clinical placements. The documentary evidence of the events on that day begins with an internal University form, described as a "clinical 'at risk' report". The form was completed by the University's facilitator, Ms Maria Almeida. It relevantly stated: Student allocated with RN/ANI, started to talk about research regarding vaccines and mentioned that she heard/read that people would die 5 years after the vaccine. Mentioned that in Israel the vaccine wasn't working. Said that her sister? works in a cardiac ward and had patients with heart problems after the vaccine. Based on student views and conversation, ANI raised her concerns to the NUM's and Facilitators regarding student ability to provide safe information and education to clients. NUM's agreed that student could continue placement under close supervision. NUM [illegible] notified and NE. Leanne Hunt informed and placement cancelled. Student spoken to about staff concerns and the decision to cancel her placement and complete an at risk form.
At 9:28 am Ms Hunt emailed Ms Thiab (emphasis added): I was contacted by your facilitator this morning. Your facilitator received information from the RN that you were AGAIN spousing [sic] anti-vaccination dialogue. It is clear to me that you have yet to understand your position as a future RN and have not taken on board the incident from St George Hospital documented below [referring to the email of 30 August]. Based on this I have decided to terminate your placement. This incident will be escalated as a misconduct, and you will meet with the Deputy Dean regarding this matter.
At 2:57 pm that afternoon Ms Thiab replied: I feel I have been repeatedly bullied by you, wrongfully accused without you investigating the matter efficiently and simply based on "incomplete information and hearsay", and your remarks have been disparaging. I also feel your abuse of power has caused me grief, anxiety, fear to speak up in any situation, and most importantly - fear to advocate for patients' rights. It has also affected all my upcoming placements which you cancelled, and in turn, my ability to graduate next year. You have a duty of care towards your students and frankly, I have not been heard but rather accused and dismissed on two different occasions, and have been discouraged from asking any sort of questions, no matter how important, if they may somehow affect vaccine uptake. Additionally, based on your comments, I feel they directly imply that asking healthcare workers questions and questioning the validity of their answers, constitutes "spreading of misinformation" or "engaging in spousing anti vaccination dialogue" as evidenced by your repeated accusations towards me for "spreading misinformation". I feel as if you are basically instructing me, indirectly, not to ask questions and you punish me with placement cancellations if I do not comply, as you have previously done so and now, again. This is evidenced by the fact that the vaccination hub was happy for me to continue my placement because they conceded that I was simply asking my RN important questions regarding side effects and Ethics surrounding informed consent as opposed to your accusation of "engaging in spousing anti vaccination dialogue". However, once again, you used your position of power to override their decision and cancelled my placement.
On 26 October Ms Hunt sent a report to Professor Heaton. The report took the form of a reference to Professor Heaton under the relevant internal disciplinary rule, referred to in the evidence as the "Misconduct Rule". The matter referred was an "allegation of student misconduct". Under the Rule, there are three types of misconduct: academic, research and general. The allegation against Ms Thiab was one of general misconduct.
Ms Hunt's report identified the "details of incident" as follows: I received a call from Maria who had been approached by the RN that Nera was buddied with. The RN raised concerns regarding the content of the students conversation regarding vaccinations, the information she was relaying was incorrect and not evidence based. The RN was concerned that Nera would convey these ideas to people coming in to get the vaccination. (Please see At Risk). The facility were happy to keep Nera on placement and "watch" her. However, based on her previous termination of placement on the 30th August from St George Hospital due to "that you are refusing to comply with the Public Health Orders and were espousing misinformation that has been circulating and stated that Dr Kerry Chant was wrong. You were also not agreeable to screening swabs citing that regular swabbing would eventually cause cancer" I terminated her placement.
In her affidavit, Ms Thiab gave an account of the conversation which took place between her and Ms Reardon at St George Hospital on 30 August. According to her affidavit, she told Ms Reardon that she was not vaccinated against Covid-19. Ms Reardon responded that she would have to undergo "repeated" (presumably daily) rapid testing. Ms Thiab expressed a concern about safety. The nasal swabs used for rapid testing were sterilised with ethylene oxide. Ms Thiab told Ms Reardon that according to the Environmental Protection Agency, ethylene oxide can be carcinogenic and there is no safe dose. Ms Reardon was not prepared to engage in a debate about this and asked Ms Thiab to wait outside in a hallway.
According to Ms Thiab, a further conversation about the merits of the Covid-19 vaccine followed in a "private area": Ms Thiab: There currently is insufficient data on the safety and efficacy of the vaccine against the delta strain. [Ms Thiab referred to a paper from the British Medical Journal which she said showed that the data being relied upon predated the delta strain of the virus.] Ms Reardon: Look Nera, the vaccine is safe and approved and by you following this line of questioning the vaccine, you're spreading misinformation. Ms Reardon: You have no idea how many people end up in ICU because they refused to get vaccinated, when all that could have been prevented. Ms Thiab: What about the people who end up in ICU because they did get vaccinated and suffered vaccine-induced myocarditis? Isn't that worse? Ms Reardon: That is only mild and will easily resolve. Ms Thiab: Any inflammation to the heart can lead to the development of scar tissue, and, as you know, the cells of this vital organ cannot regenerate. Therefore, this poses serious risks of chronic cardiac issues, and it's not mild and will not resolve as you put it. Ms Reardon: Look Nera, I don't have time to argue with you. If you don't want to comply, then I'll be reporting you to the University and you'll be sent home, because ICU is full of vulnerable patients, and I'll be putting them at risk. Ms Thiab: Could I then be assigned to any other ward or area other than ICU? Ms Reardon: No. Ms Thiab: Could you please explain to me the benefit of the vaccine against the delta variant. And would you please point me to your sources. And how exactly do I pose a greater risk than the vaccinated? Ms Reardon: You'll be protecting yourself and others and prevent hospitalisations by stopping infection and transmission. Ms Thiab: If we look at the Israeli data, a country that is ahead of us, the majority of hospitalisations are happening among the vaccinated. [Ms Thiab showed the Educator some statistics on her phone] Ms Reardon: That is incorrect. Ms Thiab: Are you saying that the government is reporting false data? Ms Reardon: I'm not concerned with what's going on in other countries. Ms Thiab. According to healthcare officials in our country and in America, the vaccinated are as infectious and can also transmit the virus. Therefore, if anything they pose greater risk to the vulnerable because they'll be asymptotic and spread the virus unknowingly. Ms Reardon: This is incorrect. We have a brilliant Chief Health Officer who we should listen to. Ms Thiab: Dr Kerry Chant has made numerous contradictory statements and no matter how brilliant one thinks she is, she is not infallible and has been wrong in the past. Ms Thiab: Would you please provide me with the evidence of your source because you're dismissing my concerns and your arguments so far were clearly based on personal incredulity and not on scientific fact? Ms Reardon: I don't have time for this. Ms Reardon: Dr Robert Malone (the man who invented the mRNA technology) took the vaccine himself. Why would he do that if it's so dangerous? Ms Thiab: Although he did, he has publicly spoken about the danger of, what he terms it, "the experimental gene therapy", and that it should only be used in the vulnerable population. Ms Thiab: He also warned about Antibody Dependent Enhancement which led to the demise of all animals in previous mRNA vaccine trials, and this is why I am hesitant and if I could, and if it were not obligatory, I would like to wait a little longer before getting vaccinated. Ms Thiab: As Nurses, we are taught and encouraged to think critically. Vet literature, evaluate data and make informed decisions based on facts. Ms Reardon: We should all just listen to our health experts, and you'd do best to just follow the health order.
Following this exchange Ms Reardon asked Ms Thiab whether she would submit to the rapid testing. Ms Thiab declined and was sent home.
Ms Thiab's affidavit also contained an account of the events at the Macquarie Fields Vaccination Hub on 25 October: The nurse I was buddied up with and I sat down in the common area and had a private conversation to the following effect: Ms Thiab: I am fully vaccinated and pro-vaccination, but what should I do in different situations if asked about adverse reactions (common and rare side effects) of the vaccine? I recently received 2 vaccines virtually simultaneously and I asked the Doctor about the accumulative effect of multiple adjuvants and multiple different antigens on the body and his response was "it has never been observed". So, what do I do or say in the event I was asked a similar question by someone (who is seeking to get a COVID-19 vaccination) and has recently been vaccinated with a vaccine (not necessarily a COVID-related vaccine) in less than 7 days apart. Nurse: If that happens, just call on one of the nurses. Ms Thiab: What do I do in the event a patient enquires about all the side effects of the COVID-19 vaccine? Nurse: Only mention the common ones. You can also use the computer in front of you to guide you. Ms Thiab: I understand that a patient has a right to informed consent, meaning their right to know all the side effects including the rare ones, so wouldn't it be unethical to deliberately leave out potential side effects no matter how rare, such as myocarditis, pericarditis, Antibody Dependent Enhancement? Nurse: The answer is No, as this sort of information may deter an individual from vaccinating and our job is to promote the vaccines. There's no evidence for ADE. Ms Thiab: The literature is contrary to what you believe. Nurse: OK I'll look into it. Ms Thiab: Dr. Robert Malone who invented the mRNA technology was used in 2002 SARS trials and that the animals died once confronted with the wild virus. The RN digressed from the vaccines topic and spoke about her long history as a nurse and working in research, etc… leading to the topics of AIDS and HIV. The RN then went onto explain how all the patients whom she had seen with AIDS and HIV. She went on to explain about some parasite embedding itself into the spine, and she was trying to somehow make a point relating to the COVID virus. Ms Thiab: As far as I know, according to literature published e.g., in the British Medical Journal, HIV does not cause AIDS. Nurse: According to my information and knowledge, it did, but I will need to look into it more. Ms Thiab: What of the possibility of hitting a vessel and causing heavy bleeding and what would result if the vaccine was injected into the vessel. I didn't receive any clear answer. Nurse: It's really good that you're asking such important questions. Subsequently, I observed a person, whom I believe to be another nurse or worker at the centre who kept walking past us eavesdropping on our conversation and I was called away. Another RN whom I believed to be the facilitator came to me and said, words to the effect: Facilitator: Look Nera, it appears that you are engaging in a dialogue which seems negative, and you should go and wait in the waiting area. Ms Thiab: I am only asking scientific questions to learn from you. I would never say anything to a patient which may cause vaccine hesitancy. I myself, am vaccinated. The facilitator on the other hand however informed me that she had spoken with Leanne Hunt to which Leanne Hunt instructed the facilitator to send me home. Facilitator: Sorry Nera, but there's nothing I can do, Leanne Hunt said to cancel your placement and send you home.
As these extracts show, in her affidavit Ms Thiab presented her discussions at the St George Hospital on 30 August and at the Macquarie Fields Vaccination Hub on 25 October as merely raising questions about the safety of Covid-19 vaccination in a moderate and unexceptionable way. She went so far as to present herself as having been, at least by 25 October, a supporter of vaccination.
That appears somewhat surprising given the tone of Ms Thiab's email to Ms Hunt on 30 August (see [39] above). In that email Ms Thiab was effectively taking the position that she would not be vaccinated unless she was given assurances which she must have had known could not have been given by the University, or indeed by anyone else. Still there was no contrary evidence from the other participants in the conversations, and Ms Thiab was not cross-examined. Counsel for the University agreed that I must therefore accept the substance of her evidence.

Disciplinary decision

Professor Heaton's decision and report was dated 22 March this year. It identified Ms Thiab's alleged misconduct as follows: … It is alleged that you engaged in general misconduct within the meaning of the [Misconduct Rule] in that you: (a) Demonstrated unprofessional behaviour whilst undertaking a practicum or placement as part of the student's course (b) Failed to comply and practice according to relevant legislation and local policy whilst in the clinical setting (c) Failed to engage in therapeutic professional relationships whilst on placement (d) Were unable to demonstrate effective communication whilst on placement (e) Didn't follow reasonable direction from WSU staff (f) Engaged in conduct that was in breach of University policies in relation to acceptable standards of behaviour, including but not limited to, the WSU Student Code of Conduct
The report then set out factual particulars of Ms Thiab's placement arrangements going back to May 2020, including the events of 30 August and 25 October last year. Under the heading "summary of analysis [sic] of submissions and evidence" Professor Heaton made four allegations.
The first allegation was that Ms Thiab showed a repeated pattern of failing to follow reasonable directions from University staff, which affected her eligibility for clinical placements. This however was concerned with events which predated 30 August last year. Counsel for the University did not suggest that, even if sustained, it would have justified the sanctions imposed by Professor Heaton.
The second allegation was: The student failed to comply and practice according to relevant legislation and local policy whilst in the clinical setting at St George Hospital; the student's placement was terminated for failing to comply with the Public Health Orders
The third allegation was: The student engaged in communication with WSU and facility staff deemed inappropriate and unprofessional and failed to engage in therapeutic professional relationships whilst on placement: 1. On two separate occasions it has been reported to the SoNM Clinical Directorate that the student made inappropriate statements whilst on clinical placement, at both St George Hospital and the Macquarie Fields Vaccination Hub, that contained anti-vaccination messaging and mis-information about CoVID-19 vaccine safety and efficacy, raising concerns about her ability to provide safe patient care and education to NSW Health clients 2. The student requested the University provide responses to questions to address her CoVID-19 vaccine hesitancy; in doing so, she requested unreasonable assurances and guarantees from the University about the vaccine safety
The fourth allegation was: When students are attending clinical placement, in WSU SoNM Uniform, they are representing the University and the School to the public and the School's industry partners (LHDs, private health facilities) 1. This student engaged in unprofessional conduct whilst on placement at St George Hospital which was repeated in her next placement at the Macquarie Fields Vaccination Hub 2. The Australian Nursing and Midwifery Accreditation Council (ANMAC) Registered Nurse Accreditation Standards (2019) deem that the program's guiding principle is safety of the public with only students who have demonstrated the requisite knowledge and skills required for safe practice eligible for Professional Experience Placement (PEP). The education provider is ultimately accountable for the assessment of students in relation to their PEP meaning that the School has the responsibility to ensure that students are safe practitioners and must address matters when a student's behaviour on placement poses a risk to public safety which has been the case at two placements this student attended; the student's placements were terminated due to the student's unsafe practice
The report went on to find that the allegations had been sustained. Professor Heaton decided to impose what are described as "category one" sanctions under the Rule.
The sanctions imposed were: (1) a reprimand; (2) a direction "to apologise"; (3) a direction to provide a written undertaking not to repeat or continue "the behaviour that is the subject of the misconduct finding"; and (4) a direction "to undertake a short course or instructive program that addresses the conduct that was the subject of the allegations", including the provision of a 1,500 word "reflection" (see below).
The terms of the reprimand were: You are formally reprimanded for your behaviour, which is unacceptable for a Western Sydney University student. You are also warned that any repeat of this behaviour may result in more serious disciplinary action being taken in future. Please reflect carefully on your behaviour and ensure that this does not happen again. If this behaviour is repeated in the future, it may be taken into account in that process.
The direction to undertake a "short course or instructive program" described the course or program as "including but not limited to an academic integrity module or a respectful relationships module or other training considered appropriate". The direction continued: Student must provide a 1500 word reflection on how she: demonstrated unprofessional behaviour whilst on placement; failed to comply and practice according to relevant legislation and local policy whilst in the clinical setting, thereby putting patient safety at risk; failed to engage in therapeutic and professional relationships whilst on placement including being unable to demonstrate effective communication; failed to follow reasonable direction from LHD or WSU staff; engaged in behaviour that was a breach of University policies in relation to acceptable standards of behaviour including the WSU Student Code of Conduct Student must answer the question "What would you do if you were placed in the same situation again?" Student must ensure her reflection is written with specific reference to the following three NMBA/ICN policy and guideline documents [References were provided to the NMBA Registered Nurse Standards of Practice; the NMBA Code of Practice for Nurses; and the International College of Nurses ("ICN") Code of Ethics for Nurses.] The Student should complete and return the Reflective Practice Journal Entry to the SoNM Integrity Unit by Monday, 11th April 2022 Upon completion and submission of a satisfactory Reflective Practice Journal Entry, and upon confirming that the student continues to meet compliance requirements, the student will be eligible for clinical placement allocation
It is notable that Professor Heaton went so far in this part of her report to say that Ms Thiab had put patient safety at risk. Earlier in the report, in the passage which I have quoted at [58] above, Professor Heaton had referred only to Ms Thiab's conduct having "rais[ed] concerns" about her ability to provide "safe patient care and education".
Under cross-examination, Professor Heaton stated that she had understood at the time that Ms Thiab had actually been involved in spreading "misinformation" directly to patients. But this was not the case and there was no evidence before me that the University was ever told that it was the case.
I think Professor Heaton's evidence under cross-examination must have been based on faulty recollection, or perhaps reconstruction. There was no evidence of the Professor being told at the time that Ms Thiab had been dealing with patients when her placements were terminated.
It is also significant that the sanction required Ms Thiab's reflection statement to address "how" she had engaged in unprofessional conduct. Counsel for the University pointed out that the terms of the sanction did not impose any requirement for the reflection statement to take any particular form. Counsel suggested that it would be sufficient compliance for Ms Thiab to explain and justify her conduct, effectively in the same manner as she had done in her affidavit.
I cannot accept this submission. The terms of the sanction require Ms Thiab to acknowledge that her behaviour has in fact been unprofessional and she should have acted differently. An attempt by her to justify, rather than admit fault for, her conduct would not entitle her to have the ban on future clinical placements lifted.

Political discrimination

The full text of WSUA s 35 is: No religious or political discrimination A person must not, because of his or her religious or political affiliations, views or beliefs, be denied admission as a student of the University or progression within the University or be ineligible to hold office in, to graduate from or to enjoy any benefit, advantage or privilege of, the University.
That Ms Thiab was sent home from the St George Hospital, and not permitted to undertake her clinical placement with the Hospital from 30 August onwards, clearly does not engage s 35. It resulted from a decision made by the Hospital, not the University. Moreover, the Hospital's decision was based on the fact that Ms Thiab was not vaccinated, rather than any political affiliation view or belief of hers.
But Ms Hunt's decision to cancel Ms Thiab's placements went further than cancelling the 30 August placement at the St George Hospital. Ms Hunt cancelled Ms Thiab's other placements at other institutions. The cancelled placements extended until December, by which time there was ample opportunity (as events were to show) for Ms Thiab to regularise her vaccination status.
Similar comments apply to Ms Hunt's further decision on 25 October to cancel Ms Thiab's rescheduled clinical placements starting on that date. That decision was made by Ms Hunt, not by anyone at the Macquarie Fields Vaccination Hub. Indeed, it was contrary to the recommendation of the Vaccination Hub RN with whom Ms Thiab was to be working.
And, as a result of the disciplinary proceedings, the University's position on future placements for Ms Thiab is now quite clear. No placements will be arranged unless Ms Thiab completes the 1,500 word reflection statement imposed on her by sanction 4.
Failure to organise placements for Ms Thiab does not directly make her ineligible to graduate, but indirectly it has that effect. It prevents Ms Thiab from satisfying a course requirement without which graduation is impossible. But it is unnecessary to consider whether actions by the University which has the indirect effect of making students ineligible to graduate is caught by s 35. In my view the refusal to organise clinical placements is itself a denial of "progression within the University" for the purposes of s 35. I also think that it is a denial of a "benefit, advantage or privilege" of the University.
Clearly the imposition of sanction 4 also directly engages s 35. It is unnecessary for the moment to consider whether the other sanctions, considered on their own, do so. I will return to this question below.
In an admirably lucid argument, counsel for the University contended that s 35 had not been contravened and Ms Thiab's claim should be dismissed. Counsel took four main points. I will deal with them below, in a different order from that in which they were presented. But first I need to say something about the legislative and historical context of s 35.

Statutory context

The provisions of the WSUA take what Gleeson CJ described at [11] in Griffith University v Tang (2005) 221 CLR 99 as a "familiar form" for university statutes. Part 2 deals with the constitution and functions of the University. By ss 5 and 6, the University is established as a body corporate. The Act does not expressly identify the members of the body corporate, or the aspects of those members' conduct which are incorporated. But it is clear from other provisions of the Act (in particular, s 36, quoted below) that the members include students, graduates (at least for some purposes), and members of the University's staff.
Part 3 deals with the governance of the University and establishes a Board of Trustees as the supreme governing body of the University, with the power to make by-laws (see s 40). Part 4 deals with the powers of the Board and, subject to the by-laws, gives the Board power to establish "policies and procedural principles for the University" including grievance procedures (s 22(1A)).
Section 35 is in Part 5 of the Act which deals with general matters. Counsel for the University submitted that s 35 is the only provision dealing with discrimination. That is strictly speaking true, but in my view s 36 is also material for present purposes. It provides: Exemption from membership of body corporate A student or graduate of the University or a member of staff of the University is entitled to be exempted by the Board, on grounds of conscience, from membership of the body corporate of the University.
Plainly ss 35 and 36 were taken from equivalent provisions enacted in 1989 for earlier established universities: see University of Sydney Act 1989, ss 31, 32; University of New South Wales Act 1989, ss 23, 24; Macquarie University Act 1989, ss 24, 25. But the history, so far as religious discrimination is concerned, goes back more than a century before that.
Following the English Reformation in the 16th Century, Oxford and Cambridge Universities, like all major English public institutions, imposed religious tests on membership. Officeholders, academics and students were required to subscribe to Church of England doctrine and to swear the Oath of Supremacy.
These attestation requirements had come under challenge by the first half of the 19th century. In 1834, a bill to relax them passed the House of Commons but failed in the House of Lords. Some restrictions were removed for some undergraduate students (not including divinity students) in the 1850s: Oxford University Act 1854 (17 & 18 Vict c 81); Cambridge University Act 1856 (19 & 20 Vict c 88). Religious tests were only completely abolished (except in divinity) by the Universities Tests Act 1871 (34 & 35 Vict c 26). See Dicey, A V, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century, ed Richard VandeWetering (Liberty Fund, 2008) 247-250, 342-6.
In New South Wales, the University of Sydney Act 1850, s 20, provided: That no religious test shall be administered to any person in order to entitle him to be admitted as a Student of the said University or to hold any office therein or to partake of any advantage or privilege thereof Provided always that this enactment shall not be deemed to prevent the making of regulations for securing the due attendance of the students for divine worship at such church or chapel as shall be approved by their parents or guardians respectively.
This provision was re-enacted when the 1850 Act was replaced by the University and University Colleges Act 1900: see s 18.

No exercise of statutory power

The first point taken by counsel for the University was that, although the University is a public institution, its internal functioning does not involve the exercise of statutory power. The University is self-governing. That self-government is a matter of private law, not public law.
Counsel pointed out that it is clearly established by authority that academic decisions, such as the grade to be conferred on a student for a particular course, are not amenable to challenge on administrative law grounds: Alajmi v Macquarie University [2019] NSWSC 1026 at [156]-[159]; see also Griffith University v Tang at [96]. Counsel submitted that this meant that there was no basis for the Court to grant prerogative relief under the Supreme Court Act 1970, s 69, as had been claimed on Ms Thiab's behalf.
It may be accepted that public law remedies are not available to Ms Thiab. Nevertheless, the statutory prohibition in WSUA, s 35, must have been intended by Parliament to be enforceable in some way.
In Griffith University v Tang, it was suggested at [91] that, as between a university and a student at that university, there is only a "consensual relationship" dependent for its continuation on "the presence of mutuality". In other cases the relationship has been treated as contractual: Clark v University of Lincolnshire and Humberside [2001] 1 WLR 1988 at 1992D; Alajmi at [214].
It is not necessary for present purposes to go into this question. On any view I think that the Court would have power to grant an injunction on the usual principles which apply to the grant of equitable relief in aid of the statutory rights: see Heydon, J D, M J Leeming and P G Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (LexisNexis Butterworths, 5th ed, 2015) at [21-170]-[21-190]. Declaratory relief must also be available.

Discretionary refusal of relief

Counsel for the University acknowledged that there was a challenge to Ms Hunt's decision to cancel Ms Thiab's placements. But counsel submitted that this issue was now no longer of any importance. Whether rightly or wrongly, the placements had in fact been cancelled. It was clear from the terms of Professor Heaton's sanction 4 that if that sanction stood, no further placements would be organised; by the same token, if the sanction was overturned, new placements would be available. In other words, Ms Hunt's decisions had been overtaken by events.
Counsel for the University took issue with written submissions made by counsel for Ms Thiab which criticised the conduct of the disciplinary proceedings on natural justice grounds; specifically, supposed bias on the part of Ms Hunt. Counsel for the University pointed out that no such challenge had been pleaded, even though I had afforded Ms Thiab's legal representatives an opportunity to recast the summons.
But counsel went further. He submitted that all of Ms Thiab's complaints could, if valid, be pursued in her appeal against the sanctions imposed by Professor Heaton. Counsel submitted that this would be the convenient course, and the Court should decline as a matter of discretion to intervene in the dispute.
I do not find this further argument persuasive. I agree that a challenge based on alleged bias would need to have been pleaded and has not been. But Ms Thiab has clearly relied on s 35. A contention that the sanctions themselves violate s 35 is fairly open.
The University itself led evidence about the disciplinary process. The process is factually connected with Ms Hunt's earlier decisions to cancel Ms Thiab's clinical placements. Those decisions are squarely challenged. And, as will be seen, the grounds of challenge carry over to the sanctions imposed by Professor Heaton.
In the circumstances of the case, I am not inclined to leave the issues raised in these proceedings to be worked out in an appeal against the sanctions. From the outset of the proceedings there was a challenge to the continuation of the disciplinary action. It was the University which chose to go ahead with that action. The University officials were entitled to take that course, but they can hardly complain about duplication. I decline to dismiss the proceedings on discretionary grounds.

Discrimination "because of" affiliations, views or beliefs

Counsel's third point focused on the requirement in s 35 that contravening action be taken by the University "because of" Ms Thiab's political affiliation, views or beliefs. It is clear, and was not disputed in argument, that this phrase means that there must be a causal relationship between the two. The reason for the University's action is therefore critical. See Toben v Jones (2003) 129 FCR 515 at [30]-[31], [61]-[63]; Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) (2012) 248 CLR 500 at [44]-[45].
In such an analysis it is the University's actual or true reason which is relevant. Later evidence from the University's decision-makers as to their thinking at the time may be of limited weight: see Kiefel J (as her Honour then was) in Toben v Jones at [63]. In the present case I have relied upon the contemporaneous documents, and (in the case of the sanctions) Professor Heaton's report and determination, as being the most reliable indication of what in fact actuated Ms Hunt and Professor Heaton in the actions which they took.
Counsel for the University submitted that its actions against Ms Thiab were not undertaken because of her affiliations or beliefs but because of her conduct. Counsel submitted that Ms Thiab espoused opinions in clinical settings which did not promote the principles of public health. Counsel pointed out that s 35 protects against discrimination on the basis of affiliations, views and beliefs. It is not a guarantee of free speech.
Counsel submitted that the University's actions were justified based on the professional regulations which applied to Ms Thiab as a student of nursing. Counsel relied in particular on three regulatory provisions.
The first was cl 4.1(i) in the NMBA's Code of Conduct. Clause 4.1 relevantly provides (emphasis added): 4.1 Professional boundaries Professional boundaries allow nurses, the person and the person's nominated partners, family and friends, to engage safely and effectively in professional relationships, including where care involves personal and/or intimate contact. ln order to maintain professional boundaries, there is a start and end point to the professional relationship and it is integral to the nurse-person professional relationship. ... To maintain professional boundaries, nurses must: a. recognise the inherent power imbalance that exists between nurses, people in their care and significant others and establish and maintain professional boundaries b. actively manage the person's expectations, and be clear about professional boundaries that must exist in professional relationships for objectivity in care and prepare the person for when the episode of care ends … h. actively address indifference, omission, disengagement/lack of care and disrespect to people that may reflect under-involvement, including escalating the issue to ensure the safety of the person if necessary i. avoid expressing personal beliefs to people in ways that exploit the person's vulnerability, are likely to cause them unnecessary distress, or may negatively influence their autonomy in decision-making (see the NMBA Standards for practice), and j. not participate in physical assault such as striking, unauthorised restraining and/or applying unnecessary force.
Counsel also relied on cll 7.1(a) and 7.2(c) of the Code of Conduct. Clauses 7.1 and 7.2 relevantly provide (emphasis added): 7.1 Your and your colleagues' health Nurses have a responsibility to maintain their physical and mental health to practise safely and effectively. To promote health for nursing practice, nurses must: a. understand and promote the principles of public health, such as health promotion activities and vaccination b. act to reduce the effect of fatigue and stress on their health and on their ability to provide safe care c. encourage and support colleagues to seek help if they are concerned that their colleague's health may be affecting their ability to practise safely … … 7.2 Health advocacy There are significant disparities in the health status of various groups in the Australian community. These disparities result from social, historic, geographic, environmental, legal, physiological and other factors. … In advocating for community and population health, nurses must: a. use their expertise and influence to protect and advance the health and wellbeing of individuals as well as communities and populations b. understand and apply the principles of primary and public health, including health education, health promotion, disease prevention, control and health screening using the best available evidence in making practice decisions, and c. participate in efforts to promote the health of communities and meet their obligations with respect to disease prevention including vaccination, health screening and reporting notifiable diseases. See also the NMBA position statement on nurses, midwives and vaccination
Fourthly, counsel relied on the NMBA position statement itself. It relevantly states (emphasis added): NMBA position on nurses, midwives and vaccination The NMBA has become aware that there are a small number of registered nurses, enrolled nurses and midwives who are promoting anti-vaccination statements to patients and the public via social media which contradict the best available scientific evidence. The NMBA is taking this opportunity to make its expectations about providing advice on vaccinations clear to registered nurses, enrolled nurses and midwives. The NMBA recognises the Australian National Immunisation Handbook 10th edition as providing evidence-based advice to health professionals about the safe and effective use of vaccines and the public health benefits associated with vaccination. The NMBA supports the use of the handbook by registered nurses, enrolled nurses and midwives who are giving vaccines. The handbook is available from the Immunise Australia Program website. The NMBA expects all registered nurses, enrolled nurses and midwives to use the best available evidence in making practice decisions. This includes providing information to the public about public health issues. ... What should l do if I notice a nurse or midwife is promoting anti-vaccination material? If you have concerns about a nurse or midwife you can make a complaint to AHPRA. The NMBA will consider whether the nurse or midwife has breached their professional obligations and will treat these matters seriously. Any published anti-vaccination material and/or advice which is false, misleading or deceptive which is being distributed by a registered nurse, enrolled nurse or midwife (including via social media) may also constitute a summary offence under the National Law and could result in prosecution by AHPRA.
As will be seen below, it is unclear whether the position statement contains any identifiable separate obligation on nurses which is relevant for present purposes. For convenience, I will refer in what follows to the "Code of Conduct" as encompassing both the text of the Code and also the Position Statement.
Clearly the provision of false or misleading information about the safety or efficacy of Covid-19 vaccines to patients or members of the public would have been contrary to the Code of Conduct. But Ms Thiab had her placements terminated before she had any contact with patients or with the public in a clinical setting. Her statements about the safety of Covid-19 vaccination were made to other professional staff. Whether the Code of Conduct applied in this context raises a number of questions about its interpretation and reach.
The first question concerns the application of the Code outside a clinical setting (in the sense in which I have used that term). Nursing is a profession. This means that a distinction must be drawn between dealing with patients (which attract core professional obligations); dealings with other professionals (which may attract professional obligations but perhaps not as extensive ones); and private life.
It is true that the Position Statement refers to misinformation being given by nurses to the public via social media. Reference in this context to statements "to the public" by social media are strange. It seems unlikely that any nurse, let alone a nursing student, would have so prominent a public profile on social media platforms such as Twitter or Instagram that what they might say about vaccination would have any public impact. Provided that nurses do not identify themselves as such in posting to social media, it seems difficult to accept that NMBA would have any basis for regulating such statements.
It is not necessary to pursue this further in the present case because there is no suggestion that Ms Thiab made the offending statements on social media. It is unclear what the Position Statement adds to the Code in any event. In the end, all the Position Statement does is refer back to other regulations and invite the reporting of nurses to AHPRA for AHPRA to investigate such reports for disciplinary purposes or possible breach of the law.
Turning to the provisions of the Code itself, and the actual context in this case, namely private discussions by Ms Thiab with other nurses and health staff, it seems that the provisions upon which counsel relied do not apply. Clause 4.1(i) is concerned with patient autonomy. Clause 7.1(a) is concerned with nurses' own health or the observations of their colleagues' health. Clause 7.2(a) applies where nurses are engaged "in advocacy". As I point out below, it seems that this can only apply to dealings with patients and the public.
The next question is how far the Code goes in preventing the dissemination of "misinformation". The Code repeatedly and understandably requires nurses to act on the "best scientific evidence". But to question the scientific evidence for the safety of a vaccine, so long as it is done rationally, could hardly, if ever, be regarded as contravening this requirement. Nor would pointing to the possibility of long term effects or the possibility of adverse effects in some clinical situations. It must be acknowledged that, although Covid-19 vaccines have been administered to millions of people with apparent success, this has happened too recently for those vaccines' long-term effects to have been exhaustively investigated.
Counsel did not suggest that the interpretations which Ms Thiab said she gave to the scientific articles to which she referred in her discussions with her colleagues were so far-fetched or irrational as to amount to "misinformation". Given that Ms Thiab was not cross-examined there would have been no basis for any such submission. And Ms Hunt and Professor Heaton did not fully investigate what Ms Thiab actually said about the scientific literature, or evaluate what she did say about this in her email of 30 August to Ms Hunt ([40] above). They therefore could not properly have made any such judgment themselves.
In this context it is relevant that, as she pointed out in her email to Ms Hunt of 30 August, Ms Thiab had been taught that students and nurses should think critically and independently. It is not unscientific to be doubtful or questioning of received ideas. Indeed, it might be said that that is always the proper state of mind for a scientist: Popper, K, Conjectures and Refutations: The Growth of Scientific Knowledge (Routledge, 2002) at xi-xii.
The next question is whether the Code imposes an affirmative obligation to promote vaccination. The subject is addressed in cl 7.2 of the Code of Conduct. That clause does not expressly impose any such obligation. At most it assumes that there may, in some circumstances, be such an obligation. But the imposition of such an obligation runs into the problems which I have already addressed. Presumably it could only be imposed in clinical circumstances (for example, encouraging patients and members of the public to be vaccinated when working as a nurse). The clause seemingly could not justify, for instance, requiring nurses to devote their spare time to campaigning for vaccination.
There is also a question about reconciling any such obligation with nurses' genuine scientific beliefs. It may be that cl 7.2 has the effect that nurses are obliged to refrain from broadcasting their personal beliefs if those beliefs conflict with vaccination. But the clause surely cannot mean that nurses are obliged, if asked for their personal opinion, to say something in which they genuinely do not believe.
It is easy to see how Ms Hunt might have got the idea that Ms Thiab was against Covid-19 vaccination. Ms Thiab's email of 30 August to the Clinical Placement Team, with its hectoring list of questions about the safety of the vaccine, would readily allow that inference. So too the purported reservation of Ms Thiab's "inalienable rights", a phrase characteristic of United States libertarian discourse. But even if it was reasonable to think that Ms Thiab was an "anti-vaxxer", the complexities of identifying actual conduct by her which contravened the Code of Conduct seem to have been completely lost on Ms Hunt.
Furthermore, in her email to Ms Thiab of 30 August ([38] above), Ms Hunt seems to have taken the view that Ms Thiab was under obligations to promote vaccination "24/7". On that view, it would have been a breach of the Code for Ms Thiab to attend a protest rally against the vaccine in her own time. Ms Hunt simply brushed over the fact that Ms Thiab's reported statements had not been made to patients or members of the public.
Ms Hunt also uncritically accepted the characterisation of Ms Thiab's statements as "spreading misinformation" despite Ms Thiab's protestations to the contrary (which, for reasons I have given, I must accept as accurate for the purposes of this case). She also did not take into account the fact that by October Ms Thiab had actually been vaccinated.
In truth, Ms Hunt made little inquiry into what Ms Thiab had actually made. In her correspondence, the only actual statement attributed by Ms Hunt to Ms Thiab was the statement that Dr Chant "was wrong".
Similar comments apply to the disciplinary proceedings. As an independent investigation, they were a travesty. Professor Heaton's report stated that Ms Thiab's email of 25 October ([45] above) had been taken into account, but there is no sign in the report that this was done. Ms Thiab had said that she would respond to the allegations through her affidavit, but there is no sign that Professor Heaton asked for, or was provided with, that affidavit either.
It will be recalled that Professor Heaton's report set out three allegations, the first of which can be ignored for present purposes. The second allegation referred to Ms Thiab's refusal to be vaccinated for the placement with St George Hospital on 30 August. In fact the allegation that Ms Thiab had refused to comply with Public Health Orders was an overstatement. But more importantly, by the time of the incident on 25 October which led to the disciplinary proceedings, Ms Thiab was no longer unvaccinated. The 30 August incident can only have been referred to because Professor Heaton thought that Ms Thiab's initial vaccine hesitancy was in some way of ongoing relevance, presumably as reflecting her beliefs about vaccination.
The third allegation was that Ms Thiab had made statements containing "anti-vaccination messaging" and "misinformation about Covid-19 vaccine safety and efficacy". But the report did not identify the actual content of these supposed statements. It could hardly have done so, as there had been no investigation into that question.
Ms Thiab was criticised for "unreasonable assurances and guarantees" which she had asked for in her email of 30 August to the Clinical Placements Team ([39] above). This was a valid criticism of the email but the complaint against Ms Thiab concerned what she had supposedly said on another occasion. Again, it could only have been relevant as evidence of Ms Thiab's beliefs.
The fourth allegation was of "unprofessional conduct" and "unsafe practice". This did not provide any more content than had been provided by the third allegation. In fact, Professor Heaton appears not even to have acknowledged that the statements were to other nursing staff and not to patients.
It should also be noted that the passages from the Code of Conduct and similar documents which were referred to as part of sanction 4 were not the provisions on which counsel for the University relied in his argument before me. Clause 4.1(i) of the Code was referred to but was not among the passages quoted in Professor Heaton's report. Clauses 2.1 and 3.3 were not referred to at all. Nor was the position statement.
One passage which Professor Heaton did quote was cl 2.8 of the ICN Code of Conduct: Nurses may conscientiously object to participating in particular procedures or nursing or health-related research but must facilitate respectful and timely action to ensure that people receive care appropriate to their individual needs.
It is somewhat ironical that Professor Heaton should have quoted this passage. The passage explicitly acknowledges nurses' freedom of conscience, even in a clinical setting. Conscientious objection was something that was completely absent from Professor Heaton's analysis (as it was from Ms Hunt's).
I reject the submission that Ms Hunt and Professor Heaton only acted against Ms Thiab because the conduct on her part somehow contravened the Code. I doubt that they even read the relevant provisions of the Code. But if they did they did not attempt to investigate the facts and consider whether those facts actually resulted in contravention.
This lack of investigation may expose Ms Hunt and Professor Heaton to criticism for the way in which they discharged their duties. But for present purposes it has a different significance. What it tends to show, I think, is that it was not Ms Thiab's actual conduct which concerned them. Rather, they thought that she held anti-vaxxer beliefs and that those beliefs were undesirable in nursing practice. Once they had reached these conclusions they apparently considered it unnecessary to investigate precisely what she had said and done.
No doubt Ms Hunt and Professor Heaton would say that if Ms Thiab had anti-vaxxer beliefs, there was a risk that she would act on them in her dealings with patients. On the evidence this was an insulting misjudgment of Ms Thiab's professionalism. But even if it had not been, it shows that Ms Thiab's beliefs, or assumed beliefs, were what Professor Heaton and Ms Hunt were responding to. I am satisfied that the University's action against Ms Thiab was taken "because of" views and beliefs on her part.

Religious or political affiliations, views and beliefs

The final question (and the fourth point raised by counsel for the University) is whether the beliefs (or attributed beliefs) of Ms Thiab on which Ms Hunt and Professor Heaton acted were "political" in the sense in which that term is used in s 35. Counsel submitted they were not. Counsel referred to the term "affiliation", submitting that this required adherence to a particular political movement or cause.
During his oral argument, counsel said: … if the plaintiff had come in her affidavit to your Honour and said, "I have particular political views about vaccinations. I don't think Governments should be in the business of mandating vaccines and I don't think the Government should be putting unknown chemicals which I might not agree with into my arm and telling me I have to do it". If that had been her evidence then it would be very difficult not to conclude that it was political in nature because that is a political statement.
But counsel submitted that this was not what had happened. Counsel pointed out that Ms Thiab, on her own evidence, was making statements in scientific terms, rather than political ones. Counsel submitted that any adverse action was based on Ms Thiab's scientific views (or, as counsel would have had it, her unscientific views), not her politics.
In support of this contention, counsel referred me to three authorities. They were Cheng v Governor of Pentonville Prison [1973] AC 931; Nestle Australia Ltd v Equal Opportunity Board [1990] VR 805; and Clubb v Edwards (2019) 267 CLR 171.
Cheng was an extradition case. The appellant was the secretary of an organisation dedicated to the overthrow of the Taiwanese government. He was charged with having shot someone during a demonstration in the United States against a visiting member of the Taiwanese government. The United States sought his extradition from Britain.
The question was whether the offence with which the appellant was charged was one "of a political character" for the purposes of the Extradition Act 1870. The House of Lords held that it was not. Lord Diplock said: I would hold that prima facie an act committed in a foreign state was not 'an offence of a political character' unless the only purpose sought to be achieved by the offender in committing it were to change the government of the state in which it was committed, or to induce it to change its policy, or to enable him to escape from the jurisdiction of a government of whose political policies the offender disapproved but despaired of altering so long as he was there. I would not hold that an act constituted an 'offence of a political character' in the ordinary meaning of that phrase appearing in a statute dealing with the trial and punishment of crimes committed in a foreign state if the only 'political' purpose which the offender sought to achieve by it was not directed against the government or governmental policies of that state within whose territory the offence is committed and which is the only other party to the trial and punishment of the offence.
Nestle was an anti-discrimination case. Section 21 of the Equal Opportunity Act 1984 (Vic) prohibited discrimination by employers on the grounds of the "status" or "personal characteristics" of their employees. The term "status" included such characteristics as sex, race and marital status. The term "personal characteristics" included holding "any lawful religious or political belief" and engaging in "any lawful religious or political activities".
Six employees of Nestle complained that it had taken action against them at work because of their activities as members of a trade union. There were (and are) long-standing industrial law prohibitions on employers taking adverse action in the workplace because of union membership or activities. But the complaint was instead made to the Equal Opportunity Board. The complainants' contention was that Nestle had discriminated against them on the ground of their political beliefs or activities.
Vincent J of the Victorian Supreme Court held that the Board had no jurisdiction. His Honour said of the different types of discrimination prohibited by the Equal Opportunity Act: … as far as employment relationships are concerned they all relate to matters which are clearly personal to the prospective employee and which in general are not the subject of any legitimate interest by a prospective employer, in other words they are matters which are both the private concern of the individual employee and irrelevant to the relationship. ... I find it very difficult to accept the proposition that the legislature intended by the use of the words "political belief" to bypass the entire body of law and the structure which have been established at both the Federal and State level to deal with the type of purely industrial relations questions which have arisen in the present matter. These considerations reinforce my opinion that the term "political" should be given the meaning ascribed to it by common usage which is concerned with the processes of government and, not in general, the structure and interactions of industrial relations.
Clubb was a constitutional challenge to Tasmanian legislation which prevented picketing outside abortion clinics. The plaintiff was charged with participating in such picketing, which involved her trying to hand leaflets to women visiting the clinics. The purpose in doing so was to try to dissuade them from having abortions.
The plaintiff claimed that the legislation was invalid because it infringed upon her implied constitutional freedom of political communication. The High Court held that it did not. Kiefel CJ, Bell and Keane JJ said (at [29]-[31]): The implied freedom protects the exercise by the people of the Commonwealth of a free and informed choice as electors. A discussion between individuals of the moral or ethical choices to be made by a particular individual is not to be equated with discussion of the political choices to be made by the people of the Commonwealth as the sovereign political authority. That is so even where the choice to be made by a particular individual may be politically controversial. … ... In the present case, the communication effected by the handing over of the pamphlet by Mrs Clubb lacked any evident connection with the electoral choices to be made by the people of the Commonwealth. It was designed to persuade a recipient against having an abortion as a matter for the individual being addressed. It was not addressed to law or policy makers, nor did it encourage the recipient to vote against abortion or to take part in any public debate about the issue. ...
It is immediately apparent that the present case is in a different field of discourse from the implied constitutional freedom of political communication. That is a right of communication, which necessarily is not absolute, and moreover is limited to communications in some way related to the electoral choices facing voters in federal elections.
Cheng was also concerned with something different. A limitation on extradition to face charges overseas of "political" offences does not directly engage rights of freedom of conscience. To the extent that such a limitation protects human rights, the rights protected are the potential extraditee's rights of political activity in the country seeking extradition.
The Victorian anti-discrimination provisions under consideration in Nestle included a prohibition of discrimination on the basis of political opinion. But the existence of parallel protections of trade union activities through the industrial relations system was an important contextual factor in reading down the term "political" in those provisions. There is no such contextual factor in the present case.
Section 35 has its own distinct statutory context. The section reflects the changes made to NSW university statutes in 1989. The effect of those changes was two-fold. First, the former prohibition on the imposition of religious tests was replaced by a broader prohibition on discrimination in progression within universities, and access to privileges and benefits offered by universities. Second, the protection against religious discrimination was expanded to discrimination on the ground of religious or political affiliation, views or beliefs.
I have not found anything in the explanatory memorandum or the second reading speech which spelt out the purpose of these changes. But I think the purpose was quite clear from the statutory language. It was to protect freedom of thought for researchers and students at universities. That was reinforced by the presence of s 36, which was similarly directed to freedom of conscience.
Historical events also provided context for the enactment of the provisions reflected in s 35. Galileo's persecution by the Inquisition was a famous example. More recently, and more immediately relevantly for present purposes, were Stalinist and Maoist enforcement of academic conformity with the party line (including in particular forced recantation of "incorrect" beliefs, and forced self-criticism for having professed those beliefs in the first place): see Priestland, D, The Red Flag: A History of Communism (Grove Press, 2009), 144.
It is hard to overstate the importance of this subject. Freedom of thought and freedom of speech have been bracketed together as indispensable conditions of a free society: Palko v Connecticut, 302 U.S. 319 (1937) at 327. But thought precedes speech; therefore, of the two, freedom of thought must be seen as the most fundamental.
It is true that s 35 is not a guarantee of free speech as such. But free speech may be tied up with freedom of thought. Even in circumstances where there is no right of free speech, freedom of conscience will still protect the citizen from being required to make an affirmative profession of belief. Furthermore, a citizen's speech is usually taken as a guide to that person's thought. Action against the citizen merely for expressing a thought, when no countervailing interest is engaged, is an indirect attack on the citizen's freedom to hold it.
So it is in this case. As I have explained, the action against Ms Thiab was based on her beliefs, but those beliefs were deduced by the University from what she had said, or was supposed to have said, to her colleagues. And the sanction imposed by Professor Heaton effectively required Ms Thiab to make a recantation, and a profession of "correct" belief in the form of the reflection statement she is to write.
Nor is it merely a question of protecting Ms Thiab's individual rights, however important in itself that may be. In a university context, freedom of thought has a public dimension. Universities exist to advance human knowledge and understanding. The theory behind s 35 is that this is an objective process and the personal beliefs, whether religious or political, of those involved, are, or should be, irrelevant. Section 35 can thus be seen as a bulwark of academic freedom: Ridd v James Cook University [2021] HCA 32 at [29]-[33].
In my view, these considerations support the view that a wide meaning should be given to the term "political" in s 35. There is also a textual consideration which I think leads in the same direction. The section brackets "religious" with "political" belief. It cannot have been intended that a genuine religious belief on a particular subject would be protected by s 35, but a conscientiously held secular belief on the same subject would not, because it was simply a matter of "morals" or "ethics".
Against this background I turn to deal with counsel's submission that the action against Ms Thiab was based on her scientific beliefs, rather than political ones. I have already quoted the evidence given by Ms Thiab to which counsel referred (see [49] above). But as we have seen, neither Ms Hunt nor Professor Heaton made any real investigation into what Ms Thiab had in fact said, and the content of those conversations was not known to them.
This raises a further question about the interpretation of s 35. Is it to be applied on the basis of what Ms Thiab's beliefs were in fact, or is it the University's perception of her beliefs that is relevant?
Counsel for the University submitted that the language of s 35 supported the former construction. On its face it does. But on analysis there are difficulties with that view.
The section is directed to conduct by the University. It was not possible for the University to know exactly and with certainty what was in the mind of Ms Thiab at the time. The University could only deduce her beliefs and opinions from her (reported) actions and statements. It follows I think that the question must be determined by reference to Ms Thiab's views and beliefs as they appeared to the University, rather than by reference to what Ms Thiab now says those views and beliefs in fact were.
The construction advanced by counsel for the University would also give rise to paradoxical outcomes. Surely it could not have been intended that the University could take discriminatory action against a student on the basis of a supposed political belief and yet escape the application of s 35 if it turned out that the student did not in fact hold such a belief.
In my view the relevant views or beliefs for the purposes of the application of s 35 in this case are the views and beliefs which the University attributed to Ms Thiab. As stated by Ms Hunt, and picked up by Professor Heaton, this comes down to the beliefs inherent in Ms Thiab's supposed conduct in "spreading misinformation" about Covid-19 vaccines and in saying "Dr Chant was wrong".
I have already made the point that neither Ms Hunt nor Professor Heaton appear to have been concerned to enquire exactly what Ms Thiab had said to have been labelled as a spreader of "misinformation". That in itself means the University's actions cannot have been based on an analysis of the scientific validity of whatever it was that she did say. What Ms Hunt and Professor Heaton were really concerned with was the beliefs which lay behind Ms Thiab's statements.
Clearly neither Ms Hunt nor Professor Heaton believed that Ms Thiab was spreading "misinformation" purely because of a wish to cause random mischief. I infer that they took action because they thought she was the sort of person who would place unsound interpretations on the scientific evidence in order to advance an "anti-vaxxer" agenda.
This brings me to the distinction upon which counsel for the University founded his argument. But I think that argument has its difficulties.
In the first place, it is too simple to see the debate as being confined to the expression of different scientific points of view (or, as Ms Hunt tendentiously put it, personal "opinion" against "evidence-based facts"). Where public health measures are imposed by government regulation, any debate about the justification for those measures necessarily has a political element. It is no different from an argument about whether the economic evidence supports a budget measure, or historical evidence justifies a legal measure. The debate about whether the scientific "evidence" justifies the measure in question cannot be separated from political preconceptions about the proper role of the state and the weight of evidence required to justify its intervention.
In this context, I do not accept that failure by Ms Thiab to articulate in her evidence an express political basis for opposing vaccination is conclusive. As I have already pointed out, Ms Thiab did at one point use the libertarian language of "inalienable rights". Her debate with her colleagues was, on the evidence, framed in terms of the implications to be drawn from published scientific papers. But if called upon to say why she was taking the issue so seriously I suspect that Ms Thiab would have used precisely the justification articulated by counsel which I have quoted above. Furthermore, I think that that was in substance the motivation attributed to Ms Thiab by Ms Hunt and Professor Heaton. They thought she was spreading "misinformation" in support of an anti-vaxxer agenda.
The place of scientific (or economic, or historical) evidence in political debate is determined by politics not by science (or economics, or history). In some situations, the terms of the political debate may be such that an apparently neutral statement about the existence or non-existence of scientific (or economic or historical) evidence becomes politically loaded.
But it is not necessary to consider whether the Covid-19 vaccination debate has reached that point. As counsel for the University himself conceded the opposition to vaccination may be based on genuinely held political beliefs. The cogency of such beliefs, and how widely they are shared, are beside the point.
Nor should this be surprising in the field of public health. Public health is a social science. It often requires that a balance be struck between people's individual freedoms and the desirability of government action being taken in the collective interest to restrict the spread of disease. Inevitably that may be politically controversial.
It is significant that so much emphasis was placed on the statement that "Dr Chant was wrong". This was not a criticism of Dr Chant's scientific opinions as a biochemist (if she has any qualifications as one). It was a criticism of Dr Chant as a public health official and the supposed architect of the government's policy on Covid-19 vaccination.
The constitutionally correct way of looking at how the pandemic has been handled is that the Public Health Orders in question were issued by the Governor on the advice of Cabinet. In saying, or supposedly saying, that Dr Chant had got it wrong, Ms Thiab was really saying that the Public Health Orders were wrong. It was a direct criticism of government policy.
In my view, the University's actions against Ms Thiab were actions taken because of beliefs which were political in nature for the purposes of s 35. Ms Thiab is entitled to succeed in her challenge.

Conclusions and orders

I have concluded that the University's actions in cancelling Ms Thiab's clinical placements on 25 October 2021, and in later imposing sanction 4, which prevented any further placements being allocated, contravened WSUA s 35. It was unlawful for that reason. There may not be any point in making a declaration about the decision of 25 October, but I will make a declaration that sanction 4 is invalid.
Whether the other sanctions (the reprimand; the requirement to apologise; and the requirement to undertake not to repeat or continue the supposedly offending conduct) contravened s 35 is less clear because they are not so obviously linked to the denial of progression or privileges within the University. It may however be that the formal recording of those sanctions in Ms Thiab's university record itself attracts s 35. But if the sanctions are not caught by s 35, and the University continues to try to sustain them, Ms Thiab will have to pursue her internal appeal. I will hear further argument about this if there is any dispute between the parties.
Ms Thiab's summons also sought orders prohibiting the University from giving any effect to the sanctions, and requiring the University to allocate the placements to Ms Thiab required to allow her to complete her degree. An order in the latter form is problematical because it could not foreclose the academic and administrative judgments which the University must make in deciding to allocate placements to Ms Thiab (or accepting the work that she has done with Dr Nicholas instead). Nevertheless it might be possible to craft an order in suitable terms. On the other hand, the declaration I have proposed might be sufficient. Again I will hear argument on this if that is necessary.
I will adjourn the proceedings for the parties to consider the form of relief necessary to give effect to my conclusions. They should also deal with the costs of the proceedings. If the parties cannot agree I will hear further argument.
Before parting with the case, I wish to reiterate what it does not decide. Nothing in my decision prevents the University from making genuine academic judgments about the quality of its students' coursework. Creationists who answer questions in a palaeontology exam by quoting the Bible will not be able to complain if the University declines to award them degrees.
Nor does my decision necessarily prevent the University from taking action because of clinical or other professional misconduct by it students. In hindsight the University should left concerns about possible clinical misconduct by Ms Thiab to be dealt with, if they arose, in a clinical setting. This was what was suggested both by the RN at the Vaccination Hub and by the University's own facilitator. It should also be borne in mind, where vaccination is in issue, that NMBA's statement of position seems to contemplate that complaints will be investigated by AHPRA, rather than the University. But if in the end there is a need for the University to take disciplinary action against its students, based on their conduct and not their beliefs, the University may do so.
The orders of the Court are: 1. Adjourn the proceedings to 9:30 am on 21 June 2022 or such other time as may be arranged with my Associate. 2. Direct that the parties confer on the form of orders to be made to give effect to this judgment and to deal with costs, and, no later than 24 hours before the adjourned hearing, submit proposed orders for this purpose.

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: 10 June 2022

& 20 Vict c 88) Equal Opportunity Act 1984(Vic)

Equal Opportunity Act 1984(Vic)

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