Victorian Civil and Administrative Tribunal|2006-05-09

Torres v Monash University (Anti Discrimination) [2006] VCAT 1208 (9 May 2006)

Direct discrimination - section 8 Equal Opportunity Act 1995 - particular comparator; amendment of complaint - adding a characterisation - whether permitted - Burrows v State of Victoria (Department of Education) [2002] VCAT 1655; indirect discrimination - section 9 - exception under section 69 for university regulation - whether a university guideline is a condition in terms of section 9.

Torres v Monash University (Anti Discrimination)

The complaint is found not proven and is dismissed.

Ms Siemensma of Counsel instructed by Minter Ellison.

When Marta Torres sought to re-enrol in her doctoral studies at Monash University after a period of illness, no one in the "School of Languages Cultures and Linguistics" in the Faculty of Arts was competent to supervise her research on the influence of the Incas in Spanish American literature. The evidence revealed that of the lecturers at the time in Hispanic Studies, one was a linguist with no expertise in Latin American literature, one specialised in the impact of modernity on Latin American literature and culture (with some expertise in Mexican literature and in gender and queer theory) and one was expert in Spanish rather than Latin American literature, with some expertise in gender studies and masculinities. A new lecturer appointed at the time was an expert in Latin American film.

It may not augur well for the academy that a potential doctoral candidate stands a better chance of enrolling if her research interests align with those of a few existing academics. However, the Equal Opportunity Act 1995 ("the Act"), under which Ms Torres brings her complaint, does not prohibit a university choosing its doctoral students on such a basis.

Section 134(1) of the Act provides that the Tribunal may hear a complaint referred to it by the Equal Opportunity Commission ("the Commission"). Section 102 establishes the vicarious liability of employers and principals. In this case the complaint is lodged only against Monash University ("the University"), employer of the academic and administrative staff who dealt with Ms Torres.

Section 7 of the Act defines discrimination to be direct or indirect discrimination on the basis of an attribute. Ms Torres claims both direct and indirect discrimination on the basis of her impairment, although at first she concentrated on the issue of direct discrimination. The Act prohibits discrimination in defined areas of activity, including education, as provided in s.37. Section 6 lists the attributes on the basis of which discrimination is prohibited. Ms Torres complains of discrimination on the basis of impairment, under section 6(b).

In September 2004, Ms Torres complained to the Commission that the University had discriminated against her on the ground of her impairment. The Commission declined the complaint and Ms Torres asked for it to be referred to the Tribunal.

There was little dispute between the parties about most of the circumstances. Ms Torres began her doctoral studies on 1 March 1999, under the supervision of Dr Jorge Paredes. In June 2002 having taken ten months of intermissions on the ground of ill health, Ms Torres withdrew 'in good standing' as her health was again poor. Ms Torres suffers from "myasthenia gravis". There was little evidence about the symptoms, but it was not disputed that the illness waxes and wanes and that it made Ms Torres unable to work at some times, even for months at a time.

A doctoral student who simply withdraws must wait four years before re-enrolling, but no such wait is imposed after a withdrawal in good standing. Ms Torres said in her statement (of 15 July 2005, which she adopted at the hearing) that she withdrew on Dr Paredes' recommendation. In her complaint she said he had explained that a withdrawal in good standing meant she was permitted to be re-admitted to the doctoral course at any time. At the hearing, the Respondent attacked this evidence as if Ms Torres had asserted a promise made by Dr Paredes. In my view she did not assert that. Her evidence on this point did not change and it is consistent with the Respondent's own interpretation of "in good standing" to say that it means the student is permitted to return. Ms Torres agreed at the hearing that she did not assert in her complaint that she was told she could return in any circumstances, free of all restraint. Ms Torres did not pursue her complaint as one about misleading conduct and I have not treated it as such.

The copy of the University Doctoral Information Handbook before me was dated 1999, but Ms Torres did not dispute that it was the same as the 1998 Handbook of which she was aware. When Ms Torres first enrolled, the Handbook (which contains regulations, guidelines and commentary) provided that a doctoral student's primary or main supervisor must be a member of the University's academic staff who has appropriate research experience. The commentary in the Handbook added:

"Where no adequate supervision could be arranged by the department in the event that a sole supervisor left the employ of the University, the Applicant should be notified of this prior to commencing candidature".

That requirement and comment was in force at all relevant times. In April 2000, a qualification was added to provide:

"In exceptional circumstances where [a sole supervisor leaves the University] during candidature, the Research Graduate School Committee may appoint a supervisor external to the University as a primary supervisor, with a Monash academic staff member....as an associate supervisor."

There was no evidence about whether Ms Torres was advised before commencing candidature that a supervisor could not be provided if Dr Paredes left the University. However, this was not relevant to the complaint of discrimination, even though it may well be relevant to Ms Torres perception that she was not well treated by the University.

Also, at the time of Ms Torres enrolment, the Handbook (indeed the regulations) allowed the Research Graduate School Committee to grant leave of absence "for one or more periods not exceeding twelve months in total". This regulation was amended in September 2002 to provide that the Committee could allow a longer time in exceptional circumstances. The Respondent contended that there was no firm 'twelve month' rule. I will return to this issue in considering indirect discrimination.

On 28 June 2003, Dr Paredes, Ms Torres sole supervisor, resigned from the university. There was evidence that Dr Nelson had initially been assigned a 25% role as joint supervisor but both parties agreed he had not in fact supervised Ms Torres. In the second half of 2003, Ms Torres spoke to various people in the faculty about re-enrolment. The exact time of her initial enquiry was disputed.

Unable to identify a supervisor within the University, Ms Torres proposed early in 2004 that the University appoint (jointly with a Monash associate supervisor) an external supervisor she had found. Ms Torres, met with Dr Cordella (convenor of the Hispanic Studies Program) on 16 February 2004. There was a dispute in the evidence about some of that meeting, specifically the degree of emphasis Dr Cordella gave to Ms Torres' impairment. Ms Torres wrote to Ms Gemperle, Manager in the Arts Faculty, on 29 March 2004 and to Professor LeGrand, Dean of Arts Faculty, on April 29, 2004 seeking to re-enrol. Ms Gemperle replied on 8 April 2004 and Professor Legrand on 19 May 2004. Each reply was short, not appearing to have caused the writer any great trouble or to have required significant enquiry or deliberation.

The University in these replies refused Ms Torres's application to be readmitted, citing (e.g. in Ms Gemperle's reply) the rules about supervision saying "Monash rules do not allow for a main supervisor to be external."

Direct discrimination is defined in Section 8 of the Act which provides:

"(1) Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.

(2) In determining whether a person directly discriminates it is irrelevant -

(a) whether or not that person is aware of the discrimination or considers the treatment less favourable:

(b) whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason.

In order to succeed in a claim of direct discrimination, the Complainant must prove on the balance of probabilities:

• that she has an attribute as defined in section 6;

• that she has been the subject of treatment less favourable in the terms of section 8 (which allow for a comparator who is real or hypothetical); and

• that the attribute was a substantial reason for the treatment.

It was common ground that the Complainant has an impairment - her illness, myasthenia gravis. What was in contention were the other two criteria.

For the Respondent, there were statements from Ms Gemperle (Manager of the Arts Research Graduate school in the Faculty of Arts), Dr Cordella (Convenor of Hispanic Studies Program in the School of Languages, Cultures and Linguistics in the Faculty), Dr Stewart Bruce King (Lecturer in the Hispanic Studies Program), Professor Brian Nelson (Professor of French Studies in the School of Languages Cultures and Linguistics), Ms Marcelle Riley (a student services officer in the same school) and Ms Beverley Myers, a member of the firm of solicitors acting for the Respondent. The Complainant sought to cross-examine only Ms Gemperle, Dr Cordella and Professor Nelson. The Complainant adopted her statements of 15 July 2005 and 16 August 2005 and gave oral evidence. At the re-commenced hearing on 9 December 2005, Professor Maxwell King who had by then provided a written statement, gave evidence and was cross examined.

Was the Complainant treated less favourably than an unimpaired person?

Taking Ms Torres claim and evidence as a whole, she was dissatisfied with several aspects of the University's treatment of her: that Dr Paredes told her she would be able to re-enrol without trouble; that she had no warning her supervisor was leaving; that Dr King told her in 2003, she said, to wait until 2004 to re-enrol; that he mentioned an external supervisor but that was later refused her; that the university misconstrued her thesis as having a "narrow" focus; that the university advertised itself as able to offer doctoral programs in Latin American literature and her thesis is squarely in that field; that the university appointed a new staff member who could not supervise her; that in making its decision the university did not take account of her progress and suitability as a candidate; that the university could have appointed an external associate supervisor jointly with an internal one, as they did for another student at around the same time.

Ms Torres' concerns were not all relevant to the issue of whether the University discriminated against her, so I have not addressed all of her concerns. I do note that her concern that one witness had misconstrued her topic as "narrow" was met by the witness amending his statement to remove that word.

Ms Torres was also dissatisfied that the university appeared to disagree with her on some factual matters of which she was certain, such as whether Professor Nelson was originally identified as a joint or associate supervisor and the length of her probationary candidature. It is difficult to understand why some of these discrepancies in the records occurred, but that does not indicate that the university treated Ms Torres unfavourably an account of her impairment. At worst these items indicate that the university's records or its staff's recollections were imperfect. Ms Gemperle gave evidence that some records had been accidentally destroyed.

The university contended and indeed there was undisputed evidence that in a number of instances it made allowances for Ms Torres's impairment. Ms Torres was granted two periods of intermission on the grounds of her health, one in 1999 and one in 2000. The university permitted Ms Torres in 2000 to convert from full-time to part-time studies because of her health. In early 2002, a number of senior academics supported Ms Torres' candidature when the Monash Research Graduate Committee was deciding whether she could continue as she had failed to meet some requirements. Dr Browitt (a lecturer in Hispanic studies) wrote to the Committee on behalf of a number of faculty members supporting Ms Torres's progress and asking the Committee to take her health problems into account when making a decision. Ms Torres's candidature was then confirmed. Dr Stewart King said in his statement "without such a reason to explain her lack of progress, her candidature would never have been approved".

It is worth nothing that Ms Torres was not treated less favourably than unimpaired students while she was enrolled. It reduces the likelihood that the university or the relevant faculty members were intolerant of her impairment.

In July 2003, an administrative officer of the University, Ms Riley, wrote to Ms Torres asking whether she intended to re-enrol in the near future. Towards the end of August (or early in September) Ms Torres sent an e-mail to Dr Stewart King. His translation of the e-mail and of his reply (from Spanish) was not disputed. Ms Torres said in the e-mail that she had spoken to Ms Riley to say she wanted to resume studies in 2004 and had sent a message to Dr Browitt seeking a meeting and received a reply that her topic was not in Dr Browitt's area of specialisation and suggesting she speak with Dr King and Dr Cordella. Ms Torres said that she delayed re-enrolment until 2004 on the advice of Dr King, which was inconsistent with her email although consistent with Dr King's statement. Nothing turned on the issue and I have not examined it further.

Dr King's email reply of 4 September 2003 said he had spoken to several people about Ms Torres' situation. I accept his evidence that he indeed spoke to people he thought might be able to assist. The email said that his research was in areas which did not qualify him to supervise Ms Torres' thesis. It said that Dr Browitt was leaving Monash and that the new staff member appointed in his place would begin in the second semester of 2004 and might be able to supervise Ms Torres. He added: "if the successful candidate cannot supervise you because the topic doesn't correspond to their studies, then there is the possibility of organising a joint supervision with a supervisor here and one external to Monash." There is no unfavourable treatment of Ms Torres in this reply. It appears Dr King was trying assist her.

As things turned out, the new academic staff member appointed was not accredited to supervise doctoral students and her areas of expertise (in Latin American film) did not coincide with Ms Torres research. While this was unfortunate for Ms Torres, it can not be characterised as unfavourable treatment of her.

In February 2004, Ms Torres went to see Dr Marisa Cordella, convenor of the Hispanic Studies Program. Ms Torres and Dr Cordella gave different accounts of the meeting and of their previous contact. Following Ms Torres statement that she had worked as a casual tutor under Dr Cordella in 1998, the latter amended her statement to allow that there may have been contact, of which she had little specific recollection. This was not important in itself but indicated to me that Dr Cordella was inclined to minimise her knowledge of and contact with Ms Torres. When Dr Cordella was cross-examined by Ms Torres at the hearing her answers seemed unsympathetic and even antagonistic (though I note the situation may account for some of this). The two gave different accounts of the meeting of 16 February 2004. Dr Cordella said she left doors open and wanted to find out as much as possible about Ms Torres' progress on her thesis; Ms Torres said Dr Cordella was very negative, refused to allow an external supervisor and inquired several times about Ms Torres's health. Dr Cordella said she asked once about Ms Torres's health as a courtesy when Ms Torres said that she had withdrawn from studies because of ill health.

It was not possible on the evidence before me to find that Dr Cordella asked a large number of questions about Ms Torres's health, though I do find there was some conversation about it. However, even if I accepted Ms Torres's version - that Dr Cordella asked several times about her health and sought information on how Ms Torres's symptoms affected her studies - there is not sufficient evidence to connect those inquiries with the University's refusal to re-enrol Ms Torres. Even if, as it appeared at the hearing, Dr Cordella was unsympathetic to Ms Torres, that does not indicate that Ms Torres was unfavourably treated nor that the way she was treated was related to her impairment.

While Ms Torres did not articulate her case in these terms, it appeared that she asked the Tribunal to infer that the reason given by the university for not allowing her to re-enrol (i.e lack of a supervisor) was a spurious one and that her impairment was a substantial reason. Ms Torres complained that another doctoral student, Paul Lewis was allocated an external supervisor at the point of enrolment while she was not permitted that opportunity. I was not satisfied that Mr Lewis' circumstances were the same as Ms Torres'.

Dr King said in his statement that in September 2003, when he corresponded with Ms Torres, he was aware that an external co-supervisor had been arranged for Paul Lewis, whose original supervisors were Professor Nelson and Dr Browitt. When the latter left Monash at the end of 2003, an external co-supervisor was arranged, along with Dr King himself, as some of his expertise (in gender studies, particularly masculinities) was relevant to Paul Lewis's research.

Ms Torres was under the impression that in September 2003 Paul Lewis was not enrolled in doctoral studies and was thus in the same position as she was. Ms Gemperle said in her statement that Mr Lewis commenced his doctoral studies in October 2003. He had then two joint supervisors, according to Ms Gemperle's evidence which I have no reason to doubt. Professor Nelson was the main supervisor, with 51% and Dr Browitt had 49%. Ms Gemperle said she was unaware at that time that Dr Browitt had resigned from the University effective at the end of 2003. Dr King and presumably others in the faculty were aware of it in September 2003. I accept the evidence that Mr Lewis' main supervisor was Professor Nelson.

After Dr Browitt left, according to Dr King's undisputed evidence, Paul Lewis had three joint supervisors: Professor Nelson, an external supervisor and Dr King himself. This was possible, according to Dr King, because his research interests and Professor Nelson's coincided sufficiently with Mr Lewis's research, which Dr King said "relates to gender studies, in particular, a highly theoretical analysis of the process of transgendering in Latin American literature and film". Professor Nelson's evidence was along the same lines. He said he has always been Mr Lewis's primary supervisor. Professor Nelson teaches French but said he has "some expertise in the area of representations of sexuality and questions of gender identity" and Dr Browitt "has expertise in Mexican literature and in gender and queer theory". Putting all this evidence together, it appears that even though it was known to faculty members that Dr Browitt would be leaving Monash, Paul Lewis enrolled as doctoral student in October 2003, with Professor Nelson and Dr Browitt as supervisors and that Professor Nelson was the main supervisor who then continued in that role when a joint external supervisor was required.

On this evidence, there were two main differences between Mr Lewis and Ms Torres. One difference between them was that Mr Lewis always had a main or primary supervisor within the University, so his external co-supervisor was not subject to the rule that external supervision only be allowed if the candidate is enrolled at the time a main or sole supervisor leaves, although Mr Lewis was in any case (albeit very recently) enrolled when Dr Browitt left. The second difference between them was that Mr Lewis's area of research coincided with the research expertise of senior academics in the faculty. It appears this is why the academics in the faculty were able to accommodate Mr Lewis even though one of them had announced his resignation.

Mr Lewis's circumstances were similar to those of Ms Torres, but the differences between those circumstances explain the different treatment he received - his research was in areas where a number of academics were experienced. On the evidence, it appeared to me that if Ms Torres was treated less favourably than Mr Lewis, that was related to her academic interests. There was no evidence at all that Mr Lewis received more favourable treatment because he was unimpaired.

Dr King, Dr Cordella and Ms Gemperle all gave evidence, which I accepted, that had Ms Torres' original supervisor been still at Monash when Ms Torres sought to re-enrol, there would have been, as each of them saw it, no difficulty in accepting her re-enrolment.

Accordingly although I found Ms Torres to have an impairment, I was not satisfied that the Respondent treated her less favourably than Mr Lewis, an unimpaired person.

Ms Torres did not put her complaint in terms of a hypothetical comparator but in any case there was no evidence that her impairment led to treatment less favourable than that given to other students or potential students in her position. Had Ms Torres wished to research Latin American film or gender studies or dandyism she may have been able to find a supervisor, but her interests were in Latin American literature and indigenous culture. If the university discriminated against her on those grounds, that was not a prohibited discrimination.

Since I find Ms Torres was not treated less favourably than an unimpaired student, or one with another attribute, it is obvious that I need not consider the third criterion of direct discrimination, concerning whether her impairment was a substantial reason for the treatment. The complaint of direct discrimination has not been proven.

Can the Tribunal consider the complaint as one about indirect discrimination?

In September, after two days of the hearing, I decided Ms Torres had not fully explained her complaint. Mindful that she was unrepresented, I adjourned the hearing to allow her to file further particulars of complaint and to allow the Respondent an opportunity to prepare its response. Until the hearing, Ms Torres expressed her complaint in terms consistent with direct discrimination, but at the hearing she had also referred to the university's rules (particularly regulations 13 and 14 and their associated guidelines which deal with intermission of study and with supervision) which formed the background to her complaint. This appeared to be a complaint about indirect discrimination.

When the hearing resumed, counsel for the Respondent submitted that the Tribunal lacked jurisdiction to hear the complaint of indirect discrimination, because under section 134(1) of the Act the Tribunal had power only to hear a complaint referred to it by the Equal Opportunity Commission. Counsel submitted that the Commission had not referred a complaint of indirect discrimination. The Commission's referral letter dated 19 November 2004 attached the complaint and a short report which said (amongst other things) "complaint appears to rely on sections 6-9, 37 and 102 of [the Act]". Section 8 deals with direct discrimination and section 9 with indirect discrimination. Counsel for the Respondent produced at the hearing on 9 December 2005 a letter dated 8 December 2005 from an officer of the Commission to the effect that she had reviewed the file and realised that the mention of section 9 was an error.

While it is true that the mention of section 9 in the Commission's original letter was relevant to my decision to allow the Complainant to amend her particulars of complaint, I was not persuaded by the letter of 8 December 2005 that my decision was incorrect. Section 105 of the Act permits the lodgement of a complaint of breach of the Act. Section 134(1) provides that the Tribunal may hear a complaint which has been referred to it. Section 105 does not require that the complaint contain the whole of the evidence it need only contain the details of the complaint. Ms Torres submitted that she was unable to describe her complaint properly as falling within section 8 or 9, particularly as she is not a lawyer. So was the Tribunal authorised to allow Ms Torres to amend her particulars of complaint to include the issue of indirect discrimination?

In Burrows v State of Victoria (Department of Education [2002] VCAT 1655 Deputy President McKenzie relevantly said (at para 33):

"....a complaint under the Equal Opportunity Act which is referred to VCAT cannot be amended in a way which makes it totally different from what was originally lodged with the Commission....a complaint cannot be amended so as to include a fresh claim or cause of action...inaccuracies can be corrected by amendment....further breaches of the same kind can be added by amendment. It may also be that if the facts alleged in the complaint are not changed, their characterisation under the Equal Opportunity Act can be expanded by amendment, by for example adding another characterisation."

That is what the Tribunal has permitted Ms Torres to do - she has added another characterisation of the facts alleged in her complaint. However, I agree with the Respondent's counsel to some extent. The complaint concerns the failure of the university to readmit Ms Torres and mentions the guidelines for appointing an external supervisor. It does not complain separately that Ms Torres was obliged to withdraw under the alleged regulation that only twelve months intermission of candidature will be allowed. Ms Torres's withdrawal from candidature is mentioned in her complaint as part of the background to her complaint about re-enrolment, but I agree that to consider the rules about withdrawal separately from Ms Torres's complaint about re-enrolling would be to add a fresh claim.

Apart from that reservation, the complaint as referred, in my view, is open to characterisation both as a complaint about direct discrimination and as a complaint about indirect discrimination, the Commission's letter of 8 December 2005 notwithstanding. While the Commission's report is of use to the Tribunal, it is the complaint itself which is referred and which the Tribunal is empowered by section 134(1) to hear. Section 105 requires that the complaint include details, not that it include all the argument or submissions the complainant wishes to make.

Counsel for the Respondent submitted that direct and indirect discrimination are mutually exclusive, citing the decision of the High Court in Waters and Ors v Public Transport Corporation (1991) 173 CLR 347 at 392. In my view, that mutual exclusiveness does not prevent a complainant (especially one without the assistance of a legal representative) from complaining that she has suffered both varieties of discrimination. It does of course prevent her succeeding on both grounds in relation to the same facts and circumstances. Since however I have found the complaint of direct discrimination not proven, I proceed to address the question of indirect discrimination.

In her further particulars of complaint, Ms Torres alleged that the University was in breach of section 9 of the Act by imposing a requirement condition or practice with which she was unable to comply due to her impairment and with which a higher proportion of people without that impairment would be able to comply.

There were two requirements conditions or practices imposed by the University which Ms Torres claimed constituted indirect discrimination: the requirement that intermission of candidature for doctoral students could be up to twelve months in total, which obliged her to withdraw from her candidature and the condition that an external main supervisor would only be appointed if a student's supervisor left during the student's candidature, which made her ineligible for appointment of external main supervisor.

Ms Torres alleged that these two requirements were not reasonable in the light of the consequences which flowed from them (namely that she was excluded from re-enrolling in her doctoral studies course) and that her impairment made her unable to comply with them.

(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice -

(a) that someone with an attribute does not or cannot comply with; and

(b) that a higher proportion of people without that attribute, or with a different attribute, do or can comply with; and

(2) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including -

(a) the consequences of failing to comply with the requirement, condition or practice;

(b) the cost of alternative requirements, conditions or practices;

(c) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice.

(3) In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination.

The Complainant bears the onus of proving her case on the balance of probabilities. To succeed under section 9 the Complainant must satisfy the Tribunal of four factors -

• that the Respondent has imposed a requirement condition or practice,

• that the Complainant does not or can not comply with it;

• that a higher proportion of people without her impairment do or can comply; and

• that the requirement condition or practice is unreasonable.

Requirement of twelve month maximum intermission

The Respondent contended that there was no rule that doctoral candidates could be granted no more than twelve months total intermission. Professor King (As Vice-Chancellor Research and Research Training) is responsible for the operation and administration of the Monash Research Graduate School, a coordinating body which sets University policy on research and training and oversees the University's doctoral programs. Professor King made a written statement which he adopted at the hearing where he was also cross-examined. He said that the relevant regulation was made by the Graduate School Committee pursuant to a University Statute (6.1.2) which in turn was made pursuant to the authority in sections 28 and 29 of the Monash University Act 1958. In 1999, the regulation provided, he said, as follows:

The committee may, subject to any conditions specified, grant a candidate leave of absence for one or more periods not exceeding twelve months in total".

Professor King said that in May 2001 the Committee resolved to amend regulation 13, effectively to add after the words "in total" the words "unless the committee in circumstances it deems exceptional otherwise determines". He said that this amendment was formally endorsed by the Committee on 6 September 2002.

In addition, Professor King said that the amendment was consistent with the Committee's practice during the 2001 and 2002 academic years. I had before me copies of the University Doctoral Information Handbook for 1999 and the Handbook for Doctoral and Master of Philosophy Degrees 2005. Ms Gemperle gave evidence that after 1999 the handbook was not published in hard copy but only online, where it is frequently updated.

The Complainant's position was that she was not told of the change to regulation 13. Her undisputed evidence was that she withdrew from her doctoral candidature "in good standing" on 23 June 2002, that is, before the amendment was formally adopted. There was no evidence before me that the changed practice or amended regulation was promulgated or published before that date. Ms Torres said she had relied on the 1999 Handbook and on the advice of her supervisor at the time, Dr Paredes, who, she said, advised her, when she became ill in mid 2002 and needed at least 6 months leave, that she could withdraw in good standing and return when she was better, as she could not obtain further intermissions since she had already used 9 months of the available twelve.

Therefore, in my view, although the University had at that time, according to Professor King's undisputed evidence, a practice of allowing more than twelve months of intermissions (in appropriate circumstances, such as illness) and although it soon after enacted a regulation to reflect this practice, Ms Torres was subjected to a requirement that she take no more than twelve months in intermissions. This requirement, set by regulation, was promulgated in the University's published handbook, which was available to the complainant and upon which she relied. It was also promulgated by her supervisor, Dr Paredes. I accept Ms Torres evidence that she relied on his advice. The Respondent submitted, and I agree, that Dr Paredes had no authority (actual or ostensible) to reassure the Complainant she would be readmitted. However, as her supervisor and in the light of the published handbook, he acted in accordance with the university's regulations when he advised her to withdraw.

The Respondent submitted that the Tribunal should infer from Ms Torres's previous applications for intermission and from her admitted knowledge of the 1999 Handbook that she knew that only the Graduate Research Committee could determine applications for intermission. I can draw no such inference. The 1999 Handbook clearly says only twelve months intermission in total will be granted. It does add the words "intermissions of more than twelve months will not normally be approved" but this is not expressed as a qualification of the rule. It is at best confusing. It leaves the regulation in place. At the time the Complainant withdrew, the Respondent had a different practice of which the Complainant was unaware and the Respondent had not yet made the new regulation 13.

I accept Ms Torres's evidence that she withdrew because of her illness in June 2002. Professor King gave evidence that intermissions are frequently granted to people with ill health and I do not doubt that is the case, but Ms Torres had no way of knowing that an application for a further intermission of six months would be considered. The university's effective requirement of Ms Torres, by its promulgated regulation, was that she take no more than twelve months intermission. Ms Torres could not comply because she was ill. People without such an impairment would be more likely to be able to comply with the requirement which was imposed on Ms Torres, because they would not need long intermissions for illness.

As to whether the requirement was a reasonable one, Ms Torres argued that the consequence for her being unable to contain her application intermissions to twelve months in total were seriously disadvantageous and that she lost opportunities, support and self confidence. Ms Torres provided little direct evidence about those matters; however, one consequence was obvious - Ms Torres by withdrawing instead of seeking (and being perhaps granted) an intermission was unenrolled when her supervisor left. As a consequence, the university was precluded by its guidelines from allowing her to continue her studies under the guidance of an external main supervisor.

Professor King provided considerable evidence as to the reasonableness of a requirement that intermissions generally be contained to twelve months in total. I will not repeat the evidence. I was satisfied that it is reasonable to limit intermissions (i.e interruptions of study) for doctoral candidates. I was not satisfied that an absolute limit of twelve months was reasonable. There was no evidence that allowing, say, eighteen months or fifteen or twenty would cause greater costs or difficulties or further reduce funding or be a greater threat to student performance or academic standards than would twelve months. Setting that against the consequences outlined by Ms Torres, she has in the terms of section 9(2), established in my view that the requirement imposed on her was not a reasonable one.

Although I find that the requirement imposed on the Complainant was not reasonable, I am aware that the university no longer imposes such a requirement and has for some years had a different practice in most cases. This accommodation, balanced as it is by proper consideration of maintenance of academic standards, reflects well on the university, despite the present case.

The university submitted that section 69 of the Act ,which permits discrimination authorised by an enactment, applies to permit any indirect discrimination under regulation 13. Section 69 relevantly provides:

"(1) A person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of -

(a) an Act, other than this Act;

(b) an enactment, other than an enactment under this Act."

"'enactment' means a rule, regulation, by law, local law, order, Order in Council, proclamation or other instrument of a legislative character."

I have already referred to Professor King's evidence about the amendment of regulation 13. I am satisfied by that evidence and the provisions referred to by the Respondent's counsel that regulation 13 is an instrument of a legislative character. It was made by a body delegated power under statute 6.1.2 of the University. Section 28(2) of the Monash University Act 1958 empowers the University to make statutes providing for the making of regulations and it appears on the evidence before me that regulation 13 was so made.

Accordingly, although regulation 13 was discriminatory, in my view, that discrimination was permitted by section 69. Section 12 of the Act provides that discrimination is not prohibited if an exception in Part 4 applies and section 69 is included in Part 4. A complaint under the Act is a complaint of contravention of the Act. Since section 69 applies, regulation 13 does not contravene the Act. Despite this finding, I have examined and considered the evidence and submissions about regulation 13 so that the parties may better understand the situation. In one sense, Ms Torres complaint that regulation 13 discriminated against her is correct, but her complaint does not succeed because in this instance discrimination is not prohibited.

In any event, Ms Torres complaint concerned the University's refusal to re-enrol her. Ms Torres complained about regulation 13 only as it led to her inability to re-enrol.

Requirement that only enrolled students may change to an external main supervisor

Because Ms Torres was not enrolled when her supervisor resigned, she was not eligible for appointment of an external main supervisor. The regulations require a member of the academic staff to be appointed as supervisor, but there can be more than one supervisor. Usually the main supervisor must be a member of the university's academic staff, as the guidelines explain. The guidelines also provide the exception - that when a primary supervisor leaves during a student's candidature an external supervisor may be appointed as primary or main supervisor (with an associate supervisor from within the university). The guidelines provide that the Research Graduate School Committee will appoint such an external supervisor only in exceptional circumstances. The parties agreed that this guideline was in operation from 2000.

In order to succeed in the complaint that this guideline discriminates against her indirectly, Ms Torres would need to demonstrate that the three criteria in section 9(1) of the Act are met; that is, that the guideline imposes a condition or practice that a person with her impairment cannot meet; that people without that impairment are more likely to be able to meet it and that the condition or practice is unreasonable.

It is possible that the first of these three criteria was satisfied. It is true that there was no evidence that persons with Ms Torres's impairment would be unable in general to comply with a condition that they be enrolled at the time of a supervisor's departure in order to be eligible for allocation of an external main supervisor. However, as a matter of fact, Ms Torres was unable to comply and as a matter of fact her inability to comply was directly related to her impairment and the University's requirement (as applied to her) that she limit intermissions to twelve months. It follows then, that Ms Torres was prevented by her impairment from satisfying the condition. That may be sufficient to satisfy section 9(1)(a). However, I could not see that Ms Torres's situation fell within the rest of section 9.

Turning to section 9(1)(b), the question was whether a higher proportion of people without Ms Torres's impairment (or with a different attribute) do or could meet the condition that in order to qualify for an external main supervisor they be enrolled when a supervisor departs. I was not persuaded of this. A person who had withdrawn in good standing in order to take a round the world trip or look after a sick relative or give birth to twins would have been in the same position as Ms Torres found herself after Dr Paredes resigned and she sought re-enrolment. None of the evidence or argument before me established that any aspect of the guideline on external supervision dealt with impaired people, or people with particular attributes, differently from other people. The complaint of indirect discrimination was therefore not proven. It was unnecessary for me to consider the third criterion concerning the reasonableness of the requirement.

The university contended that Professor King's evidence showed that Ms Torres would not have been allocated an external supervisor because the Committee only allows this where a thesis is substantially complete or is academically exceptional. I accept Professor King's evidence on this point. He added "having regard to the fact that she was still in the process of drafting her thesis and was not an exceptional student from an academic perspective I consider it most unlikely that the Committee would have approved an external supervisor for the Complainant". I was not in a position to decide whether that was a fair assessment of the Complainant's work: Ms Torres disputed Dr Cordella's evidence that she was "in the early stages" of her thesis, but she did not give evidence that it was substantially complete. Ms Torres pointed to instances where her candidature had been supported by academics in her department. In particular, the letter dated 15 April 2002 to the Monash Graduate Research Committee from Dr Browitt, "deputy post graduate co-ordinator, school of languages, cultures and linguistics" supported the confirmation of her candidature. However, this was not sufficient to overturn Professor King's evidence about the likelihood of the Committee allocating an external supervisor.

In practical terms, the question of whether Ms Torres would have fallen within the "exceptional circumstances" requirement is relevant only to the question of whether she suffered detriment. Since the complaint of indirect discrimination is unproven, the question of detriment does not arise in this proceeding. I mention it here in order to clarify to the parties that even had Ms Torres succeeded in showing that the University's requirements discriminated indirectly against her she would not have succeeded in obtaining an order for loss or damages unless she could also show that the discrimination led to the loss or damage. Given Professor King's evidence about the need to demonstrate substantial progress or be "academically exceptional" Ms Torres would have had difficulty showing that her damage (namely the cost to her of finding a different university) flowed from the University's rule.

In accordance with these reasons, I find the complaint of discrimination not proven and the complaint is dismissed.

Opportunity Act 1995

Torres v Monash University

At a glance

Court

Decision date

Source

Judgment (100 paragraphs)

Torres v Monash University (Anti Discrimination) [2006] VCAT 1208 (9 May 2006)

Parties

Legislation Cited (1)

Cases Cited (1)