WEBSTER v UNIVERSITY OF CANBERRA

2. The main issue in this case is whether the University of Canberra discriminated against Mr Webster, in the provision of health services contrary to the Discrimination Act 1991 (the Discrimination Act). The complaint concerns two specific decisions by the respondent: (a) The respondent’s decision to refer the applicant away from the Exercise Physiology (EP) Program, allegedly due to the applicant’s disability; and (b) The respondent’s decision not to provide psychological services to the applicant, allegedly because of the applicant’s disability.

3. The respondent demonstrated that the EP Program referral arose from budgetary cuts and service restructuring, and the refusal of psychological treatment was due to clinical inappropriateness given the applicant’s complex comorbidities. These reasons were unrelated to the applicant’s disability as a protected attribute.

4. The Tribunal determined that while the applicant may have experienced unfavourable treatment, he did not establish that this treatment occurred because of his disability, as required under section 8(2) of the Discrimination Act and section 53CA(2)(b)(i) of the HRC Act.

5. Accordingly, the Tribunal found that the applicant had not established unlawful discrimination, and the application was dismissed.

Background

6. The complaint originated in the Human Rights Commission (the Commission), where the applicant alleged that University of Canberra (UC) Health Clinics engaged in unlawful discrimination in the provision of health services. UC Health Clinics operated under the auspices of the respondent.

7. Specifically, the applicant contends that he was treated unfairly by various staff members of UC Health Clinics who were involved in decisions to discontinue or refuse services to him.

8. The Commission determined that the complaint was unlikely to be resolved through conciliation and closed its file pursuant to section 78(1)(f) of the HRC Act.

9. At the applicant’s request, the Commission referred the matter to the Tribunal on 2 May 2025, pursuant to section 53A of the HRC Act.

10. As previously observed by this Tribunal, complainants in discrimination matters are usually self-represented, while institutional respondents are represented by 1 solicitors. That was also the case here. The applicant was self-represented while the respondent was represented by its in-house solicitor.

11. The applicant in his submissions broadly alleged that the respondent’s actions “likely” or “possibly” breached several statutory and regulatory frameworks, including: (a) Sections 7 (1) and 20 of Discrimination Act 1991 (b) Sections 8, 9, 19 and 27B of the Human Rights Act 2004 (c) Sections 5 and 6 of the Disability Discrimination Act 1992 (Cth) (d) Health Practitioner Standards and the NDIS Code of Conduct

12. It was apparent that the applicant was oblivious to the statutory framework within which his complaint must fit for him to have any reasonable prospect of success. Aside from referring to these instruments in general terms and asserting that they applied to his circumstances, the applicant did not pursue those references further. He did not develop any submissions, provide specific legal argument, case authority, or evidence to establish how the respondent’s conduct contravened the

1 Elbashir v Canberra Institute of Technology [2024] ACAT 10 at [29] citing Complainant 512022 v The Australian Capital Territory as represented by Canberra Health Services [2023] ACAT 66 at [35], and Pikula-Carroll v ACT Corrective Services [2023] ACAT 33 at [37] cited legislation, codes, or regulatory frameworks nor did he show how those frameworks created actionable rights before the Tribunal.

13. Although not articulated with precision, the essence of the applicant’s case is that:

(a) The respondent engaged in direct discrimination by referring the applicant away from the exercise EP Program on the basis that the applicant possessed the protected attribute of a disability or disabilities, and in so doing, the respondent breached section 8(2) of the Discrimination Act. (b) The respondent engaged in direct discrimination by refusing the applicant access to psychological treatment provided by the respondent on the basis that the applicant possessed the protected attribute of a disability or disabilities, and in so doing, the respondent breached section 8(2) of the Discrimination Act. (c) That the respondent discriminated against the applicant by refusing to provide health services including relevant goods and facilities, and in so doing, the respondent breached section 20 of the Discrimination Act.

14. The Tribunal determined that its task in this proceeding is confined to applying the provisions of the HRC Act to the facts established by the evidence. For that reason, the Tribunal’s findings turn on whether the conduct complained of amounts to unlawful discrimination under the Discrimination Act.

Applicable Legislation Human Rights Commission Act 2005

15. Section 53CA(1) of the HRC Act applies to discrimination complaints referred to the Tribunal concerning alleged discrimination by one person against another person by: (a) treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person (direct discrimination); or (b) imposing, or proposing to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because of a protected attribute of the other person (other than a condition or requirement that is reasonable in the circumstances) (indirect discrimination) Discrimination Act 1991

16. Section 7 identifies several protected attributes. Relevantly, section 7(1)(e) lists disability as a protected attribute, which the Tribunal understands the applicant relies upon in these proceedings.

17. Section 8(1) provides that “discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else”.

18. Section 8(2) provides that “a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has one or more protected attributes”.

19. Section 8(3) provides: a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has one or more protected attributes

20. Section 20 provides: It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person— (a) by refusing to provide those goods or services or make those facilities available to the other person; or (b) in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or (c) in the way in which the provider provides those goods or services or makes those facilities available to the other person.

21. Section 4A(2) provides: doing an act because of a particular matter includes a reference to doing an act because of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for doing the act. Issue 1 – Referral from the Exercise Physiology (EP) Program Applicant’s Submissions - EP Program

22. The applicant alleged that the respondent engaged in direct discrimination by referring him away from the EP Program in early 2024.

23. The applicant submitted that he was referred to attend the EP Program at UC Health by his general practitioner. He attended the program for over one year under the supervision of a previous manager without incident.

24. The applicant claimed that the new supervisor, Ms Melanie Moore and clinic manager, Ms Sally Quattro were motivated by personal dislike and colluded to exclude him from the program.

25. The applicant contended that he was unfairly singled out. He stated that other individuals of similar age and with comparable disabilities were permitted to continue accessing services at UC Health, whereas he was excluded and that the justification of ’budget cuts’ was a pretext to exclude him.

26. He submitted that their conduct amounted to unfavourable treatment because of his disability.

27. He further contended that the respondent sought to trivialise the seriousness of what he described as discriminatory conduct, which effectively denied him access to essential services.

28. He further asserted that there was a lack of transparency in the respondent’s decision-making regarding his referral away from the exercise physiology program.

Respondent’s Submissions - EP Program

29. The respondent conceded that the applicant being referred away from the EP Program constitutes “unfavourable treatment” within the meaning of the relevant legislation but denies that it occurred because of the applicant’s disability.

30. The respondent led evidence that: (a) In or about January 2024, the EP Program was restructured due to both financial constraints and the need to align more closely with the placement requirements of students within the Faculty of Health. (b) This restructure reduced the number of clients who could be accommodated, necessitating referral decisions. (c) Several clients were referred away, not only the applicant. (d) The applicant was assessed as a suitable candidate for referral on the basis that he had access to alternative resources, namely NDIS funding and private exercise facilities unavailable to other clients, making him least affected by the referral. (e) This was confirmed in contemporaneous correspondence, including an email from Ms Quattro.

31. The respondent submitted that therefore, there is no objective evidence before the Tribunal to support a finding that the applicant was (i) discriminated against, and (ii) that any such discrimination was because he possessed a protected attribute.

32. Under cross-examination, the applicant: (a) acknowledged that when he sought an explanation for his referral away from the EP program, Ms Quattro had responded, advising him that the referral was due to budget cuts, and further that, as a NDIS recipient, he was able to access private exercise physiology services. (b) confirmed correspondence between himself and a support person at the clinic, evidencing efforts to secure private exercise physiology services for him. (c) confirmed that he subsequently obtained his own exercise physiology services, initially through Medicare and later through NDIS funding. (d) conceded that he had no evidence to corroborate his assertions that several medical practitioners supported his position of alleged mismanagement or misconduct by UC Clinic management. (e) accepted that budget cuts had occurred but disputed that this was the true reason for his referral.

Findings – Referral from EP Program

33. The central issue for determination is whether the alleged unfavourable treatment or disadvantage occurred because the applicant possesses a protected attribute.

34. Section 53CA(2) of the HRC Act provides that the applicant bears the onus of establishing that the treatment was “unfavourable” because of a protected attribute.

35. There has been no evidence of any causal nexus between the applicant’s disabilities and the actions taken by UC Health Clinics. 2

36. In Pojohishgar v University of Canberra , Senior Member Orlov emphasised that: being treated unfairly is not the same thing as being discriminated against. In the eyes of the law unfair treatment is discrimination only if there is a direct causal connection between the treatment, or the resulting disadvantage where the treatment involves the imposition of a requirement or condition, and a protected attribute of the complainant – be it the person’s race, disability, age, gender identity or any other protected attribute listed in section 7 of the Discrimination Act 1991 (Discrimination Act). 3

37. In Kidman v Casino Canberra Ltd , the Tribunal considered the meaning of “unfavourable treatment” and held that: The Discrimination Act does not define ‘unfavourable treatment’ or what is meant by ‘treats or proposes to treat another person unfavourably’. The Discrimination Act does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. In other words, it does not ask: ‘were you treated less favourably than others?’ It asks, ‘were you treated unfavourably?’ This is an objective test. It calls for an examination of the treatment accorded to the complainant. If the consequence of the treatment is unfavourable to that person there is ‘unfavourable treatment’ and the question then turns to the reason for that unfavourable treatment, and whether it is because of the attributes they possess.

38. Even if it were accepted that the applicant was treated unfavourably by the respondent within the meaning of the Discrimination Act, section 53CA(2)(b)(i) of the HRC Act requires the Tribunal to consider why such treatment occurred. 4 The High Court in Purvis v New South Wales (Purvis) explained that:

2 [2022] ACAT 53 3 [2020] ACAT 50 at [22] 4 [2003] HCA 62 The central question will always be – why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’ [a protected attribute]?

39. Causation is therefore a question of fact. As the Tribunal noted in Pojohishgar v 5 University of Canberra , the test is objective: there must be a direct causal link between the unfavourable treatment and the complainant’s protected attribute.

40. The evidence shows that the respondent’s UC Health Clinics are student-led services providing programs through practical placements undertaken by students in the Faculty of Health, supervised by accredited EP Program clinical educators and clinical psychologists.

41. In January 2024, the EP Program was restructured due to budget cuts and to meet placement requirements. Prior to this restructure, two programs operated (for chronic conditions and cancer patients). Following the restructure, staffing was reduced and client capacity limited.

42. The applicant was referred away from the EP Program because he had resources available that others did not – namely, access to National Disability Insurance Scheme (NDIS) funding, which could be used to engage private EP providers, and a gym at his apartment block.

43. The applicant contended that there was a lack of transparency in this decision. However, this claim is contradicted by the respondent’s documents and by the applicant’s own material. For example, an email of 28 June 2024 from Ms Quattro, Manager of the Clinics, to the applicant’s support person stated explicitly that he was referred away due to budget cuts, reduced staffing, and limited program places, and referred to his access to NDIS funding and a gym. Further, in his complaint to the Human Rights Commission dated 8 July 2024, the applicant himself acknowledged the restructure and described discussions indicating he would need to make alternative arrangements. The respondent also presented evidence of ongoing efforts to connect him with external EP providers.

5 See 2 above

44. In respect of the EP Program, while some clients with disabilities were retained, others were referred away, including the applicant. This demonstrates that no specific group was targeted or disproportionately affected.

45. The applicant provided no evidence that: (a) He was singled out, while others with comparable disabilities, continued to receive services. (b) Ms Quattro or Ms Moore, acted with personal animus or collusion; or (c) The respondent’s treatment of him was unfavourable because of his disability or disabilities.

46. His case was based primarily on his own belief and opinion. He did not establish a rebuttable presumption of discrimination, nor of unreasonable denial of a health service.

47. Even if such a presumption had been established, the respondent’s evidence clearly shows that any unfavourable treatment or disadvantage was reasonable, proportionate, and for lawful reasons unrelated to a protected attribute, consistent with section 26 of the HRC Act.

48. The Tribunal is satisfied that the exclusion criteria and referral decisions were reasonable, proportionate, and consistent with the legislative framework. They reflected an appropriate balancing of rights: the applicant’s entitlement to access services, the rights of students and supervisors to a safe and suitable learning environment, and the applicant’s own right to safe and appropriate treatment.

49. Accordingly, the Tribunal finds that the applicant was not discriminated against in relation to the EP Program referral.

Issue 2 – Refusal of Psychological Services Applicant’s submissions - psychological services

50. The applicant further submitted that the respondent engaged in direct discrimination by refusing him access to psychological treatment at the Clinics in early 2023 and again in October 2024, following a second referral.

51. The applicant mentioned that he raised his concerns with the Hon. Bill Shorten MP and consulted various legal and medical professionals, who expressed the view that the respondent’s stated justification - budgetary cuts - was not credible and that the decision was instead specific to the applicant.

Respondent’s submissions - psychological services

52. The respondent conceded that the applicant being refused access to psychological services would place him at a “disadvantage” under the legislation.

53. However, the applicant’s conditions were too complex to be appropriately managed within a student-led clinic supervised by academic staff. The respondent argued that: (a) The applicant’s comorbid psychological and physical conditions exceeded the scope of the Clinic’s services and fell within its exclusion policy. (b) The applicant’s initial screening in January 2023 did not disclose the full extent of his condition, but subsequent sessions revealed complexity beyond the Clinic’s capacity. (c) He was accordingly discharged and referred to external providers with greater expertise. (d) A further referral in July 2024 confirmed, through the screening process, that his conditions remained outside the scope of the student-led program.

54. Under cross examination, the applicant: (a) Acknowledged that the clinic was a training clinic providing services for people with “mild to moderate mental health issues,” and acknowledged that his conditions, as described by Dr Jones, would be more appropriately classified as complex presentations. (b) Accepted that the service was student-led but remained uncertain as to whether it was inappropriate for a student-led clinic to treat someone with his conditions. Findings - Refusal of Psychological Services

55. Section 20 of the Discrimination Act prohibits discrimination in the provision of services. The issue is again whether the refusal occurred because of the applicant’s disability.

56. The Tribunal accepts the respondent’s evidence that the decision was clinically based. The evidence demonstrates that the Clinic offers services to individuals with “mild to moderate” mental health issues. Those with significant behavioural issues or complex presentations fall within its exclusion criteria. Placements rotate every five weeks, limiting continuity of care.

57. The applicant’s medical reports confirm he suffers from PTSD, asperger’s syndrome, bipolar disorder, chronic depression, severe anxiety, and suicidal ideation. These complex presentations place him outside the capacity of a student-led clinic.

58. Applying the reasoning in Purvis and Pojohishga, the Tribunal finds that the refusal was because of clinical unsuitability, not because of disability as a protected attribute.

59. Even if the Clinic’s policy were regarded as a “requirement or condition” under section 8(3), it would be reasonable under section 8(5), given safety, competence, and ethical considerations imposed by the Australian Health Practitioner Regulation Agency standards.

60. Accordingly, the Tribunal finds that the applicant has not established unlawful discrimination in relation to the refusal of psychological services.

61. For completeness, the Tribunal also considered the issue of causation. Section 4A(2) of the Discrimination Act provides that a discriminatory act is unlawful even if it is based on multiple reasons, as long as one of those reasons is discriminatory. This means a person can be found to have discriminated if the act was motivated by a prohibited ground, even if it was also caused by other, lawful reasons.

62. As previously mentioned, causation is a question of fact, and the test is objective. Where a complaint is made about direct discrimination, it is necessary to ask – why was the person treated in a particular way? If the answer is because of the person’s protected attribute, even if that is not the dominant or substantial reason, the causation element is established.

63. To satisfy the onus of proof as required by legislation, the applicant had to present evidence that would enable the Tribunal to decide, in the absence of any other explanation, that his disability or disabilities was a reason, even if not the dominant or substantial reason, for his refusal of psychological services and his referral away from the EP program. The applicant has failed to this.

Conclusion

64. The Tribunal accepts that the applicant experienced genuine frustration and distress. However, consistent with Purvis, Kidman and Pojohishgar, unfavourable or unfair treatment alone does not amount to discrimination unless the protected attribute is a substantial and operative reason for that treatment.

65. In this case: (a) The EP Program referral resulted from program restructure and budget constraints. (b) The refusal of psychological services resulted from clinical unsuitability; and (c) neither decision was made because of the applicant’s disability.

66. The applicant has therefore failed to discharge the evidentiary burden under section 53CA(2)(b)(i) of the HRC Act.

Order

The Tribunal orders that: 1. The application is dismissed.

………………………….. Member K Reddy Date(s) of hearing: 17 and 18 July 2025 Applicant: In person Solicitor for the Respondent: Mr M Roser

*************** Amendments 27 November 2025 Correcting the citation Noureldin Elbashir v Canberra Institute of Technology [2023] ACAT 13 to Elbashir v Canberra Institute of Technology [2024] ACAT 10

27 November 2025 Correcting the citation Salam Pojohishgar v University of Canberra [2022] ACAT 5 to Pojohishgar v University of Canberra [2022] ACAT 53