Whippy v The University of Sydney

Supreme Court of NSW|2023-12-07|Before: Stern J

[1989] FCA 546 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 Waters v Public Transport Corporation (1991) 173 CLR 349; [1991] HCA 49 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 Category: Principal judgment Parties: Miles Whippy (Plaintiff) The University of Sydney (First Defendant) Anti-Discrimination New South Wales (Second Defendant) Representation: Counsel: Self-represented (Plaintiff) C Trahanas (First Defendant)

Solicitors: Self-represented (Plaintiff) University of Sydney Office of General Counsel (First Defendant) Crown Solicitor for New South Wales (Second Defendant) File Number(s): 2023/275106 Publication restriction: Nil Decision under appeal Court or tribunal: Anti-Discrimination Board New South Wales Date of Decision: 07 August 2023 Before: Delegate of the President of the Anti-Discrimination Board New South Wales File Number(s): Complaint reference number C-2023-0652

JUDGMENT

By summons filed on 28 August 2023 the plaintiff, Miles Whippy, who represents himself, challenges a decision of a delegate of the President of the Anti-Discrimination Board of New South Wales (the "Delegate" and "ADNSW" respectively) of 7 August 2023 under s 89B(2)(a) of the Anti-Discrimination Act 1977 (NSW) to decline a complaint made by Mr Whippy (the "Complaint"). Mr Whippy identifies as Black. In his Complaint, which was made on 27 July 2023 under s 89A of the Anti-Discrimination Act, Mr Whippy alleged unlawful discrimination on the ground of race by the University of Sydney (the "University") the first defendant in these proceedings, where Mr Whippy was studying at the time. Mr Whippy complained about the showing by the University of excerpts of DW Griffiths' 1915 film, The Birth of a Nation, and statements made by the lecturer Professor Johnston, during an online lecture about the silent film era in the course Survey of Film (the "Course") on 8 August 2022 (the "Lecture"). Mr Whippy was enrolled in the Course as part of his study for a Bachelor of Arts degree at the University.
The Complaint focussed upon two matters. First, that by showing excerpts from The Birth of a Nation during the Lecture, the University had provided a platform for violent right-wing extremism and had distributed material, being the extracts of the film, which was racist propaganda, incited racial hatred and advertised racial segregation. Second, that by instructing students who might be disturbed by the film to "check out for a few minutes while we watch this film" the University had denied access to course content on the ground of race. Mr Whippy alleged that this constituted unlawful discrimination on the ground of race contrary to ss 7(1)(a) and 17(2)(a) of the Anti-Discrimination Act.
The Delegate provided the following reasons for declining the Complaint under s 89B(2)(a) of the Anti-Discrimination Act (the "Decision"): "1. The information provided by you demonstrates that the lecturer acknowledged the racist nature of some of the content in the lecture and made it clear that the attitudes of the time are now unacceptable. 2. Students were advised to tune out of the lecture for any parts of the lecture that they may have been triggered by. This does not equate with being denied access to any benefit provided by the respondent due to your race."
As he confirmed during the hearing before the Court, Mr Whippy contends that the Delegate fell into jurisdictional error in the following two respects: 1. ADNSW did not have jurisdiction to decline a complaint under s 89B(2)(a) of the Anti-Discrimination Act by reason of an acknowledgement of the racist content of the material to be shown which was the first of the reasons given by the Delegate for the Decision (ground 1); 2. The Delegate's power to decline a complaint, under s 89B(2)(a), depended upon it being established as a jurisdictional fact, that "no part of the conduct complained of could amount to a contravention of a provision of this Act or the regulations", being the matter set out in s 89B(2)(a) (grounds 2 to 4). Mr Whippy contended that that jurisdictional fact was not established for two alternative reasons: 1. The conduct of the University, through Professor Johnston, was a contravention of s 17(2)(a) of the Anti-Discrimination Act as it amounted to discrimination against Mr Whippy on the ground of race (as defined in s 7(1)(a)) by denying him access, or limiting his access, to part of the Lecture, being a "benefit provided by the educational authority"; or 2. By transmitting The Birth of a Nation during the Lecture, the University published an advertisement that indicates an intention to do an act that is unlawful under the Anti-Discrimination Act contrary to s 51(2) of that Act. The unlawful act relied upon in this respect is a public act of inciting hatred towards or serious contempt for persons who are Black contrary to s 20C(1) of the Anti-Discrimination Act. Mr Whippy does not rely upon a contravention of s 20C(1) itself, however, given that s 20C(2)(c) provides that nothing in the section renders unlawful a public act done reasonably and in good faith for academic purposes. Mr Whippy contends that this Court should be satisfied on the balance of probabilities that the jurisdictional fact, set out in s 89B(2)(a) was not established. It follows, he contends, that ADNSW did not have power to make the Decision.
Mr Whippy did not formulate his grounds for seeking review in this way in the summons filed on 28 August 2023. However, the University fairly accepted that, save as regards reliance upon ss 51(2) and 20C(1) of the Anti-Discrimination Act, those matters were sufficiently raised by grounds 2 to 4 of the grounds set out in the summons. Moreover, counsel for the University was content to deal with Mr Whippy's contentions relating to ss 51(2) and 20C(1) in the course of her oral submissions.
In my judgment, the formulation of Mr Whippy's Complaint as set out above is sufficiently disclosed by the grounds identified in the summons filed on 28 August 2023. Paragraph 9 of the summons refers to paragraph 11 of Mr Whippy's complaint to ADNSW on 27 July 2023. At paragraph 11 of the Complaint Mr Whippy complains of the University's distribution of an advertisement for the "systematic murder, torture, and rape of persons who are Black," as well as the statement by Professor Johnston that "if that seems like it might be disturbing, then you should check out for a few minutes while we watch this [film]." Mr Whippy contends in the summons at paragraph 9 that paragraph 11 of the Complaint discloses jurisdictional fact, and that the Delegate failed to determine that fact. Whilst, as may be expected given that Mr Whippy does not have legal representation his Complaint is not framed with close reference to all relevant sections of the Anti-Discrimination Act, it does sufficiently identify Mr Whippy's concern that in displaying The Birth of a Nation the University published an advertisement for racial vilification of persons who are Black.
In ground 4 of the summons, Mr Whippy also contends that there was no evidence before the Delegate that supported the Delegate's second reason for making the Decision.
Mr Whippy seeks the following orders: 1. A declaration that the decision of ADNSW to decline his Complaint is invalid and of no effect; 2. An order quashing the Decision of ADNSW; and 3. An order to uphold his Complaint against the University, on the ground of racial discrimination, "to the effect of a request for a written apology, and a determination of the damages payable" to Mr Whippy accordingly.
The University contends that ADNSW did not fall into jurisdictional error and opposes the relief sought by Mr Whippy. Consistent with R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36; [1980] HCA 13, ADNSW, the second defendant, has filed a submitting appearance.
As is apparent from the Complaint, the summons and Mr Whippy's submissions, both written and oral, he does not contend that the conduct of the University constitutes, or could constitute, unlawful indirect discrimination under s 7(1)(c) of the Anti-Discrimination Act. His complaint, relevantly, is of direct discrimination under s 7(1)(a). He does not point to any "requirement or condition", whether express or implicit (see e.g., Waters v Public Transport Corporation (1991) 173 CLR 349 at 360 (Mason CJ and Gaudron J), 393 (Dawson and Toohey JJ) and 407 (McHugh J); [1991] HCA 49 ("Waters")), that the University required him to comply with and with which he did not or was not able to comply. In particular, Mr Whippy does not contend that he was required to, but did not or was not able to, attend the entirety of the Lecture. Indeed his Complaint is the opposite, that he was denied the benefit of remaining in the Lecture because he was expressly invited not to watch The Birth of a Nation during the Lecture if it would disturb him. As identified in New South Wales v Amery (2006) 230 CLR 174; [2006] HCA 14 at [50] (Gummow, Hayne and Crennan JJ) ("NSW v Amery") citing Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251; [1989] FCA 546 at [27], considering the relevantly identical terms of s 24(1)(b) of the Anti-Discrimination Act which set out what amounts to indirect discrimination on the ground of sex, the first element that has to be established in a claim of indirect discrimination is that the alleged discriminator requires the aggrieved person to comply with a requirement or condition, and the fourth element to be established is that the requirement or condition is one with which the aggrieved person does not or is not able to comply. As their Honours explained in NSW v Amery, whilst the phrase "requirement or condition" must be given a broad rather than a technical meaning (at [63]), in every case the question that must be asked is whether the perpetrator imposed a relevant requirement or condition (at [65]). Given the nature of Mr Whippy's concerns and the circumstances that gave rise to them, his complaint was one of direct, and not indirect, discrimination.
For the reasons set out below Mr Whippy's summons should be dismissed.

Motion seeking summary judgment

On 7 November 2023 Mr Whippy filed a notice of motion seeking summary judgment in relation to each of his grounds for seeking relief. On 15 November 2023, the Registrar directed that that motion be listed for hearing on the same day as the substantive summons. As the motion has come on for hearing with Mr Whippy's summons, and there is thus no longer any utility in the motion for summary judgment, both parties consented to the motion being dismissed on the basis that the costs of the motion would follow the costs of the summons itself. In this regard I note that the transcript erroneously records Mr Whippy saying that he "can't" accept this course although during the hearing it was clear that he said that he "can" accept this course.
Accordingly, the motion seeking summary judgment should be dismissed on that basis.

Evidence

Whilst Mr Whippy filed a number of affidavits exhibiting documents and annexing submissions in support of the relief he seeks in his summons, at the hearing before the Court he confirmed that he relies only on his affidavits filed 6 November, 14 November and 27 November 2023. Those affidavits were read without objection and the documents exhibited to them tendered as exhibits A to M. The affidavit of 6 November 2023 annexed Mr Whippy's submissions and was read on the basis that, to the extent it comprised evidence it was admitted as evidence, and to the extent that it comprised submissions it was admitted only as submissions.
The documents tendered are: 1. The Delegate's Decision dated 7 August 2023 (exhibit A); 2. Mr Whippy's Complaint dated 27 July 2023 (exhibit B); 3. A submission by ADNSW into the Inquiry into the Anti-Discrimination Amendment (Complaint Handling) Bill 2020 dated April 2020 (exhibit C); 4. An invitation dated 20 September 2023 to Mr Whippy from ADNSW to make a fresh complaint to ADNSW (exhibit D); 5. The University's Staff and Affiliates Code of Conduct 2021 (exhibit E); 6. The University's Bullying, Harassment and Discrimination Prevention Policy 2015 (exhibit F); 7. A screenshot of a PowerPoint slide from the Lecture (exhibit G); 8. Mr Whippy's university course results history for 2022-2023 (exhibit H); 9. A letter dated 14 December 2022 from the Faculty of Arts and Social Sciences at the University to Mr Whippy advising him that he is at risk of not meeting academic progression requirements (exhibit I); 10. A USB flash drive containing a recording of the Lecture on 8 August 2023 (exhibit J); 11. A DVD containing a recording of the Lecture on 8 August 2023 (exhibit K); 12. A photograph described as a photograph of Mr Whippy's father, grandmother, uncles and aunties (exhibit L); and 13. A transcript of an excerpt from the Lecture on 8 August 2022 (exhibit M). Counsel for the University confirmed during the hearing that this is accepted as an accurate transcript of the relevant parts of the Lecture.
In this judgment I will refer to each of these documents by their description as set out above.
On 14 November 2023 Mr Whippy filed a notice to admit facts and authenticity of documents and a supporting affidavit requiring the defendants to admit, and to admit the authenticity of, each of exhibits A to L. The University served a notice disputing the authenticity of exhibits J, K and L. Thus, under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 17.3(2), the authenticity of exhibits A to I are taken to be admitted by the University.
Further, whilst the University does not accept the authenticity of the photograph tendered as exhibit L, the following evidence of Mr Whippy in the annexure to his affidavit of 6 November 2023 was admitted as evidence without objection: "The Court may know that I, the plaintiff, have affirmed by affidavit that I do identify as Black, being a relative to persons who are Black, and an associate of Black people."
Thus, there is no dispute that Mr Whippy identifies as Black.

Matters not in dispute

A number of matters of substance that arise on Mr Whippy's claim are not in dispute as between the parties. In particular, the University accepts that: 1. Mr Whippy is a student of the University; 2. The University is an educational body within the meaning of s 4 of the Anti-Discrimination Act; 3. The delivery of the Lecture by Professor Johnston is taken to have been done by the University by reason of s 53 of the Anti-Discrimination Act; 4. Access to course materials in the form of an online lecture comprises a benefit provided by the University within the meaning of s 17(2)(a) of the Anti-Discrimination Act; and 5. A decision to decline a complaint under s 89B of the Anti-Discrimination Act may be the subject of an application to this Court for judicial review under s 69 of the Supreme Court Act 1970 (NSW) on the grounds of jurisdictional error or error of law on the face of the record and for the latter purpose, by reason of s 69(4) of the Supreme Court Act, the record includes the Delegate's reasons for decision.
Further, there is no real dispute between the parties that if the factual condition in s 89B(2)(a) is not a jurisdictional fact, then (subject to Mr Whippy's other grounds of review) the Delegate had jurisdiction under s 89B(2)(a) to make the decision. On the face of the Decision, the Delegate was subjectively satisfied that the conditions in s 89B(2)(a) of the Anti-Discrimination Act were satisfied.

Factual Background

As set out above, in the second semester of the 2022 academic year Mr Whippy was enrolled in the Course as part of his study for a Bachelor of Arts degree at the University. His Complaint to ADNSW relates to the Lecture, which was delivered on 8 August 2023 as part of the University's delivery of teaching for the Course. The subject of the Lecture was the silent film era. The Lecture was presented online in the form of a series of PowerPoint slides, to which the lecturer, Professor Johnston, spoke. The Lecture also included transmission of extracts from films.
There is no suggestion in the evidence that attendance for the entirety of the Lecture was compulsory or that the students would be examined on the parts of the Lecture comprising the showing or discussion of The Birth of a Nation.
Approximately seven and a half minutes into the Lecture, Professor Johnston said: "During the 1920s, completely original stories for silent films became more common. Many of the composers were those who had contributed to the cue books and compiled scores. And here's some of the most famous ones here. Now, we're going to get into some of the films, which, of course, is the most interesting part. We're going to start with a film called Birth of a Nation from 1915, that many people consider one of the first, maybe the first important orchestral score. And before we watch this, this is kind of, what would you call it, like a trigger warning. The film, I don't know if you're familiar with it, but as a whole, the film is a very questionable film in a lot of ways. Basically, in a word, it's extremely racist. It's based on a novel called The Clansman. And it basically is about the civil war in America between the North and the South. And it makes the North, who won the war, were trying to end slavery, the bad guys, and the people in the south, were protecting a grand old way of life where they could have slaves. They're the good guys, keeping the evil northerners and the bad slaves from rebelling. And as a matter of fact, the Ku Klux Klan are the heroes. And they play - I can't think of the name of the piece, but very heroic music, we'll get to it - for when the Klan come. So, obviously, by this point, 1915, it was pretty much accepted generally that slavery had been a bad thing. But DW Griffith [sic] kind of missed all that. He just thought it was a great story, and he wasn't really paying attention to the fact that it glorified slavery, and was just very, very … made the black people into caricatures. And there was a tremendous hullabaloo about it, protests against the film. And eventually, he made another film called Intolerance, which was sort of his apology. And you'll see at the beginning of this print of the film, even very early on, there's sort of a kind of disclaimer at the front. It's kind of lame, but anyway, he made this other film called Intolerance to say, no, actually, what I meant was slavery was bad. Nevertheless, we're not going to cancel this film, because it's very important historically, from a musical point of view. And you have to … it's just the perfect film to express this, and it's well known for that. So, but you know, if that seems like it might be disturbing, then you should check out for a few minutes while we watch this film. Otherwise, let's get into it, because there's a lot of great stuff that really encapsulates the early period of original scores for a silent film. OK, everybody all right with that? Good. All right. … Let's go ahead."
Professor Johnston then played some introductory parts of The Birth of a Nation.
The "disclaimer" referred to by Professor Johnston, appears at about 16 minutes and 8 seconds into the recording of the Lecture. It states: "A PLEA FOR THE ART OF THE MOTION PICTURE We do not fear censorship, for we have no wish to offend with improprieties or obscenities, but we do demand, as a right, the liberty to show the dark side of wrong, that we may illuminate the bright side of virtue - the same liberty that is conceded to the art of the written word - that art to which we owe the Bible and the works of Shakespeare."
The PowerPoint slide showing this text was included in the Complaint.
Mr Whippy made the Complaint to ADNSW on 27 July 2023. Specifically, Mr Whippy complained: "1.) Pursuant to s89B, Anti-Discrimination Act 1977 (the Act), I seek acceptance of the complaint against the University of Sydney (the University), alleging unlawful discrimination on the ground of race. As set out in this letter, a breach of the Act occurred in the event of a lecture delivered by the University on 8 August 2022. … Discrimination on the Ground of Race 4.) I allege that on 8 August 2022, in the delivery of a lecture on Survey of Film (MUSC2663), the University distributed excerpts of DW Griffiths 1914 [sic] political advertisement for the Ku Klux Klan (KKK), The Birth of a Nation. In doing so the University exploits an appraisal of the said media content to provide an audience for violent right-wing extremism on a platform at the University's disposal. 5.) In the circumstances of disturbing material that is widely considered to be racist propaganda for violent right-wing extremism, an incitement of racial hatred, and an advertisement for racial segregation, the University proceeds to instruct those students who are disturbed by the event that is taking place, to remove themselves from the lecture. … 7.) s7 (the Act) sets out what constitutes racial discrimination: 7 What constitutes discrimination on the ground of race (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator- (a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race. In this event, it is on the ground of my race, that my access to the benefit of course material provided by the University, is declined in favour of the University's decision to distribute course material to the benefit of making white supremacy accessible. 8.) I allege the University is unlawful in an event contravening s 17 (the Act). … Pursuant to s 17 (the Act), it is on the ground of my race that: (a) the University is limiting my access to the benefit of course material, and instructing my withdrawal from a learning environment that tolerates violent extremism as creative content. (b) the University is subjecting my attendance as a student, to the institutional tolerance of an advertisement for the systematic murder, torture, and rape of persons who are Black, and the acts of violent extremism that continue to be perpetrated by white supremacists aspiring to provide legitimacy to a political platform for the Ku Klux Klan. … 9.) The President may consider evidence supporting the allegation that the University is unlawful in the act of discrimination on the ground of race. Set out is a submission of slides distributed by the University, and an excerpt of the lecture transcript in the event of instructing students to withdrawal [sic] from the lecture on the ground of race, for the benefit of a racist appraisal of music and film, in the University's construction of a platform for white supremacy." (Emphasis in original).
Mr Whippy included a Dropbox link to the video of the Lecture in his Complaint. Whilst the University has not been able to access the Dropbox link, it accepts that the link gave the Delegate access to the recording of the Lecture at exhibits J and K. He also attached screenshots of relevant PowerPoint slides presented during the Lecture, including the "disclaimer" during the film (set out at [26] above). He also included dot points reflecting the extract from the transcript set out at [24] above. He then contended: "10.) Pursuant to s140 Evidence Act 1995, the President may be satisfied the allegation that the University is unlawful in the act of discrimination on the ground of race, is in fact, proved by the submission of evidence in this complaint, by reason of the balance of probabilities. … 11.) In achieving such a balance, the President may take into account: (a) The nature of the University's distribution of an advertisement for the systemic murder, torture, and rape of persons who are Black, and the acts of violent extremism that continue to be perpetrated by white supremacists aspiring to provide legitimacy to a political platform for the Ku Klux Klan, is to the effect of causing students to withdrawal [sic] from the lecture on the ground of race, for the benefit of a racist appraisal of music and film, in the University's construction of a platform for white supremacy. The proof of this cause of action is exhibit L(ii), the transcript to the University's lecture at 11:34. … (b) The nature of the racial discrimination is deliberate, calculated, and pre-meditated, by reason of proof in the University's statements in exhibit l(i), that the University is in fact cancelling the legislative provisions of the Anti-Discrimination Act, in favour of asserting the legitimacy an incitement of racial hatred in the cause of violent extremism. … (c) Pursuant to s7, the Act, if on the ground of race, the University is permitted to cancel the legislative provisions for the right to education on an equal footing, in favour of safeguarding a platform for advertising systematic murder, torture, and rape of persons who are Black, and the acts of violent extremism that continue to be perpetrated by white supremacists aspiring to institutional legitimacy, the gravity of an unlawful University is considerable. Conciliation 12.) By reason of the balance of probabilities, the President may uphold the complaint against [the University], alleging unlawful discrimination on the ground of race, as set out in this letter. In doing so conciliation may occur between the University and myself on the basis of a written apology, and compensation for the aggrieved. 13.) As the aggrieved, conciliation may be satisfied by the University facilitating the payment of compensation: (a) $5000 for loss of opportunity in education. (b) $5000 for exacerbating generational trauma of racial discrimination. (c) $5000 for causing hurt and humiliation within a learning environment. (d) $1000 for damages exemplary of racial hatred and violent extremism." (Emphasis in original).
By letter dated 7 August 2023 Mr Whippy was notified that the Delegate had declined the Complaint under s 89B(2)(a) of the Anti-Discrimination Act, for the reasons set out at [3] above. The letter concluded: "Your file is now closed, and ADNSW will not take further action on your complaint."
By letter dated 20 September 2023, a little over three weeks after Mr Whippy filed the summons, the ADNSW Manager, Governance and Advice, sent Mr Whippy an invitation to make a fresh complaint to ADNSW. The letter said: "I write on behalf of Anti-Discrimination NSW (ADNSW). On 27 July 2023, you made a complaint against the University of Sydney to ADNSW. On 7 August 2023, you were advised, by email, that a delegate of the President of the Anti-Discrimination Board declined your complaint pursuant to s. 89B of the Anti-Discrimination Act 1977. ADNSW has given this matter further consideration and invites you to make a fresh complaint under s. 89A of the Anti-Discrimination Act, in respect of the same subject matter as the complaint dated 27 July 2023. If you choose to make a fresh complaint, it will be considered by a different delegate to the one who declined your initial complaint. I would be grateful if you can notify me whether you intend to make a fresh complaint to ADNSW by 27 September 2023. This invitation is not intended to suggest or admit that there was error involved in the decision of 7 August 2023." (Emphasis in original).
There is nothing in the evidence that discloses whether or not Mr Whippy responded to this invitation. Nor is there anything in the evidence which clarifies whether or not this invitation remains open, or how the Delegate would respond to any fresh complaint made by Mr Whippy. In particular, there is no assurance from ADNSW that it would not decline any further complaint on the basis that Mr Whippy did not notify the Delegate whether he intended to make a fresh complaint by 27 September 2023 or on the basis that it was lodged more than 12 months after the conduct complained of occurred (under s 89B(2)(b)) or on any other basis.

Unlawful discrimination

The Anti-Discrimination Act makes certain conduct unlawful. Importantly, not all conduct that amounts to discrimination on the ground of race under s 7 is unlawful. Rather, the Anti-Discrimination Act makes discrimination on the ground of race unlawful in certain defined circumstances. As set out above, the provisions relied upon by Mr Whippy in this regard are ss 7(1)(a) and 17(2)(a).
Section 7 provides: 7 What constitutes discrimination on the ground of race (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator - (a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or (b) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.
"Race" is defined in s 4 to include "colour, nationality, descent and ethnic, ethno-religious or national origin."
Section 17 appears in Division 3 of Part 2, headed "Discrimination in other areas". It provides, relevantly: 17 Education (1) … (2) It is unlawful for an educational authority to discriminate against a student on the ground of race - (a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority, or (b) by expelling the student or subjecting the student to any other detriment.
An "educational authority" is defined in s 4 to mean "a person or body administering a school, college, university or other institution at which education or training is provided."
Section 53(1) relevantly provides: An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

Unlawful advertisements under the Anti-Discrimination Act

Section 51 of the Anti-Discrimination Act makes certain advertisements unlawful. So far as is relevant to Mr Whippy's claim, it provides: 51 Advertisements (1) In this section - (a) advertisement, without affecting the generality of the expression, includes any notice, sign, label, circular and any similar thing, and includes any matter that is not writing but which, by reason of the form or context in which it appears, conveys a message, and (b) a reference to the publishing of an advertisement is a reference to the publishing of the advertisement by any means including the publishing thereof in a newspaper or periodical, by radio or television broadcast or in a film. (2) A person shall not publish or cause to be published an advertisement that indicates an intention to do an act that is unlawful under this Act. Maximum penalty - 50 penalty units in the case of a body corporate or 10 penalty units in any other case.
As set out above, Mr Whippy relies in this regard upon alleged unlawfulness contrary to s 20C(1) of the Anti-Discrimination Act. Section 20C provides: 20C Racial vilification unlawful (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group. (2) Nothing in this section renders unlawful - (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

Complaint process under the Anti-Discrimination Act

Division 2 of Part 9 of the Anti-Discrimination Act deals with the making of complaints to the President of ADNSW.
Section 87A specifies the persons who may make a complaint. Relevantly, it provides: 87A Persons who may make a complaint (1) A complaint alleging that a named person has, or named persons have, contravened a provision of this Act or the regulations (other than a provision for which a specific penalty is imposed) may be made by any of the following - (a) one or more persons - (i) on his, her or their own behalf, or …
"Complaint" is defined in s 87 to mean "a complaint made under s 87A…".
A "respondent" is defined in s 87 as a person about whose conduct a complaint has been made.
As provided by s 89, a complaint must be in writing but does not have to take any particular form. Section 89(2) provides that "[a] complaint, as made, need not demonstrate a prima facie case."
Section 89B of the Anti-Discrimination Act provides: 89B Acceptance or declining of complaints by the President (1) The President is to determine whether or not a complaint made to the President is to be accepted or declined, in whole or in part. (2) The President may decline a complaint if - (a) no part of the conduct complained of could amount to a contravention of a provision of this Act or the regulations, or (b) the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint, or (c) the conduct complained of could amount to a contravention of a provision of this Act for which a specific penalty is imposed, or (d) in the case of a vilification complaint, it fails to satisfy the requirements of section 88, or (e) the President is not satisfied that the complaint was made by or on behalf of the complainant named in the complaint. (3) The President is to give notice of a decision to accept or decline a complaint to - (a) the person who made the complaint, and (b) if the respondent has been given notice of the complaint, the respondent, so far as is reasonably practicable, within 28 days after the decision is made. (4) A decision under this section to decline a complaint in whole or in part is not reviewable by the Tribunal.
Pursuant to s 90 of the Anti-Discrimination Act, the President is to investigate each complaint that the President has accepted under s 89B. Under s 90B, the President has the power to require a complainant or a person against whom a complaint is made to provide information or documents. The President also has power, under s 91A, to endeavour to resolve a complaint by conciliation.
Section 91C of the Anti-Discrimination Act deals with amendment of complaints and relevantly provides: 91C Amendment of complaint (1) If, at any time after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal - (a) the person making the complaint seeks to amend the complaint, or (b) the President becomes aware of information that could conveniently be dealt with as part of the complaint, the person making the complaint is to be offered the opportunity to amend the complaint. (2) An amendment may be made in writing but, if further written material is already in the possession of the President or the Board, the President may treat the written material as if it formed part of the complaint. (3) If a complaint is amended at any time, the respondent must be informed in writing by the President of the substance of the amendment and, if the effect of the amendment is to cause the complaint to be made against further or other persons, they must be informed in writing of the complaint as amended. (4) Section 89B applies to the amendment of a complaint in the same way as it applies to the making of a complaint.
Section 92 of the Anti-Discrimination Act provides for complaints to be declined by the President during investigation as follows: 92 President may decline complaint during investigation (1) If at any stage of the President's investigation of a complaint - (a) the President is satisfied that - (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or (iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or (iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or (v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or (vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or (vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint. (2) The President, in a notice under this section, is to advise the complainant of - (a) the reason for declining the complaint or part of the complaint, and (b) the rights of the complainant under sections 93A and 96.
Subdivision 5 of Part 9 of the Anti-Discrimination Act is headed "Termination of complaints". It provides for a number of means by which a complaint may be terminated including settlement or resolution by agreement under s 92A, withdrawal under s 92B and abandonment under s 92C.
Subdivision 6 of Part 9 of the Anti-Discrimination Act provides for referral of complaints to the Civil and Administrative Tribunal (the "Tribunal"). Under s 93A the complainant may require the President to refer the complaint to the Tribunal if a complaint is declined under s 92 or if it is declined under s 87B(3)(b). Section 93B provides for the referral to the Tribunal, at the request of a party to the complaint, of complaints that have not been declined, terminated or otherwise resolved within 18 months after the date on which it was made. The President is also to refer a complaint to the Tribunal under s 93C in certain circumstances.
If a complaint is referred to the Tribunal, the Tribunal has a range of powers, including to dismiss the complaint (s 102), to amend the complaint on application or on its own motion including to include additional complaints (s 103), to make interim orders preserving the position (s 105), to find the complaint substantiated and if so to make orders including awarding compensatory damages, enjoining the respondent from repeating conduct, or requiring an apology or retraction (s 108).
Section 94C of the Anti-Discrimination Act provides for delegation of the President's functions.
As is clear from these provisions on their face, the scheme of the Anti-Discrimination Act is such that Parliament should be taken to have envisaged that the ambit of a complaint may develop during the investigation process and through the process of determination if a complaint is referred to the Tribunal. Thus, Parliament expressly provided in s 89(2) that a complaint need not demonstrate a prima facie case of contravention. Provision is also made for amendment of complaints under s 91C (by the President) and s 103 (by the Tribunal). Declining a complaint under s 89B is, in these circumstances, a step of some significance, effectively denying to a complainant the possibility that, upon investigation and potentially with the benefit of amendment, their complaint may in some way be resolved by either the President or Tribunal and that redress or compensation may potentially be provided to the complainant.
The Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 (NSW) introduced new subdivisions 1, 2 and 3 into Division 2 of Part 9 (encompassing ss 87-116) of the Anti-Discrimination Act. The second reading speech of the Attorney General for the Anti-Discrimination Amendment (Miscellaneous Provisions) Bill 2004, which introduced that Act in the Legislative Assembly on 16 September 2004, included the following statements: 1. "The capacity of an individual, or a group of individuals, to lodge a complaint of unlawful discrimination is crucial to the protection of their human rights"; 2. "The overall concern of this regime of provisions is to ensure that the best interests of complainants and potential complainants are protected. They are often the most vulnerable in our community and this bill seeks to uphold and protect their interests"; 3. "New section 89 … ensures that there is no prescriptive form required for a person to lodge a complaint and that the lodgment of the complaint in its original form is a sufficient trigger for further investigation and refinement of the issues raised by the complaint"; and 4. "Once an investigation into a complaint has begun, different or additional issues are often identified to those originally raised in the complaint. In such circumstances, flexibility is required to ensure that all aspects of a complaint that come to light are dealt with fairly and in a timely way."
These passages confirm the significance of the step of declining a complaint under s 89B of the Anti-Discrimination Act. To the extent there is ambiguity, these passages can be taken into account to determine the meaning of that section pursuant to s 34(1)(b)(i) of the Interpretation Act 1987 (NSW).
Moreover, there is no doubt but that the provisions enabling complaints to be made under the Anti-Discrimination Act are beneficial provisions. In those circumstances, consistent with long-standing authority, they should be construed so as to give the fullest relief which the fair meaning of its language will allow albeit that the Court is not at liberty to give it an unreasonable or unnatural construction: IW v City of Perth (1997) 191 CLR 1 at 12 (Brennan CJ and McHugh J) and 22-23 (Dawson and Gaudron JJ); [1997] HCA 30. It is also well established that statutes protecting or enforcing human rights should be given a fair, large and liberal interpretation: AB v Western Australia (2011) 244 CLR 390; [2011] HCA 42 at [24] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).

Ground 1 - did the Delegate decline the complaint on an impermissible basis?

As set out above, in ground 1, Mr Whippy contends that the Delegate declined his Complaint on a basis that was not permitted under s 89B(2)(a). In this regard, he relies upon the first reason given by the Delegate for declining his complaint under s 89B(2)(a), being Professor Johnston's express acknowledgement of the racist nature of some of the content of the Lecture and that he made it clear that the attitudes of the time are now unacceptable. Mr Whippy submits that an acknowledgement by Professor Johnston of those matters does not, of itself, prevent the conduct complained of amounting to a contravention of the Anti-Discrimination Act. In those circumstances, he contends, the Delegate fell into jurisdictional error in proffering this as a reason for denying the Complaint.
Mr Whippy's contention in this regard should be rejected. Mr Whippy is correct that, viewed in isolation, the first of the two reasons relied upon by the Delegate would not of itself prevent the conduct complained of contravening the Anti-Discrimination Act if it were otherwise a contravention. However, the two paragraphs comprising the Delegate's reasons must be read as a whole. Read in this way, it is clear that the Delegate declined Mr Whippy's Complaint on the basis that Mr Whippy was not denied access to any benefit provided by the University due to his race and that paragraph 1 of the Delegate's reasons was included by way of context.
Ground 1 should be dismissed.

Grounds 2 to 4 - whether a jurisdictional precondition to the power to deny the Complaint was established

Is the condition set out in s 89B(2)(a) a jurisdictional fact?

The first question that arises under these grounds is whether s 89B should be construed such that the condition set out in s 89B(2)(a) is itself a jurisdictional fact, the satisfaction of which is a precondition to the Delegate having power to deny a complaint. If so, as Mr Whippy contends, the question whether the Delegate had power to deny Mr Whippy's Complaint turns on whether or not this Court is satisfied on the evidence before the Court that "no part of the conduct complained of could amount to a contravention of a provision of this Act or the regulations". The contrary position, advanced by the University, is that the Delegate has power to deny a complaint provided they are satisfied that no part of the conduct complained of could amount to a contravention of a provision of the Anti-Discrimination Act or the regulations (assuming that there is no other bases upon which the Delegate has exceeded or acted without power).
Ultimately, given my conclusion as set out below, it is unnecessary for me to decide whether the factual condition in s 89B(2)(a) is a jurisdictional fact. That is because Mr Whippy's summons should in any event be dismissed. The analysis set out below supports my provisional view that Mr Whippy's contentions as to this should be accepted, but given that this issue is not dispositive, I have not reached any concluded view as to this.
As was recently explained by Leeming JA (Gleeson and Adamson JJA agreeing) in El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78 ("El Khouri"): "[33] When reference is made to a "jurisdictional fact", the issue is whether a precondition to the exercise of statutory power has been satisfied. The High Court has described jurisdictional facts as "an essential condition of the jurisdiction of the magistrate" (Ridley v Whipp (1916) 22 CLR 381 at 385; [1916] HCA 76), "an essential preliminary or a condition precedent" to the jurisdiction (Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 385; [1938] HCA 7), "any event or fact or circumstance" which is "made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend" (Parisienne Basket Shoes at 391), a "condition of jurisdiction" (R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 399; [1970] HCA 8), and "a preliminary question on the answer to which … jurisdiction depends" (R v Judges of the Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 at 125; [1978] HCA 60). Many of the more modern decisions have arisen in the context of challenges to decisions under planning and environmental laws, including Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297; [1997] HCA 10, Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8, Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2002] NSWCA 422 and Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2008) 166 FCR 54; [2008] FCAFC 3. However, there is nothing peculiar to the principles governing jurisdictional facts in decisions made under planning and environmental laws. In Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [43]-[44], the High Court noted that the term could be used imprecisely, and gave the following description: The expression "jurisdictional fact" was used somewhat loosely in the course of submissions. Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker. The concept appears from the following passage in the reasons of Latham CJ in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd: "The subject matter with which the Industrial Authority deals is, inter alia, rates of remuneration. There is power to deal with this subject matter in respect of rates of remuneration which existed on the specified date only if the authority is satisfied that the rates in question are anomalous. Unless this condition is fulfilled, the authority cannot act - it is a condition of jurisdiction." [34] One reason for difficulty is terminological. The precondition may be a question of fact. Alternatively it may be merely that the donee of the power be satisfied of or hold the opinion that the precondition is satisfied. There is a difficulty of nomenclature here, because the attainment of a state of satisfaction or the holding of an opinion is itself a question of fact as to the state of mind of the donee of the power. [35] The difficulty in nomenclature may be acute where one party contends that the "jurisdictional fact" is the fact that the precondition is satisfied, while the other party contends that all that matters is that the decision-maker be satisfied that or be of the opinion that the precondition is satisfied. That is not uncommon, and the present litigation is an example. It is clear that the bracketed words in s 34(3) are a precondition to granting development consent to what has been agreed between the parties. The question is whether that precondition is satisfied by the opinion of the Land and Environment Court on the basis of the materials before it, or whether it must be satisfied as a matter of fact, which can be reviewed including on the basis of different evidence in this Court's supervisory jurisdiction. [36] Fundamentally, the question in such cases is one of statutory construction. It is clear both in principle and as a matter of authority that it is a question of construing the statute which confers the power whose exercise is impugned. In many cases this has not been properly appreciated."
Ultimately, as is clear from this distillation of principle, whether the condition in s 89B(2)(a) is itself a jurisdictional fact turns on the proper construction of s 89B having regard to the legislative scheme and the scope and nature of the jurisdiction: Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 at [6] (per Spigelman CJ, Mason P, Sheller JA and Cripps AJA agreeing) ("Pallas Newco"). A number of factors have been identified as providing some guidance on this question of construction, albeit that the significance of these factors will vary depending upon the language and context of the particular provision in question. Of particular relevance in this case: 1. If the statutory formulation is conditioned by words involving the mental state of the decision-maker that will often, although not necessarily, tend against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact: Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 at [42] (per Spigelman CJ, Mason P and Meagher JA agreeing) ("Timbarra"). However, the absence of such words does not mean that an intention to make the exercise of power subject to the decision-maker attaining a certain mental state should not be implied: Ross v Lane [2022] NSWCA 235 at [77] (per Basten AJA, Macfarlan JA agreeing on this issue at [1]) ("Ross v Lane"); 2. If the relevant factual reference occurs in the statutory formulation of a power to be exercised or is a fact to be adjudicated upon in the course of an inquiry, it is unlikely to be a jurisdictional fact: Pallas Newco at [46]; Timbarra at [44] and [52]; Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281 at [55] (Payne JA, Bell P and Gleeson JA agreeing) ("Reysson"); 3. Conversely, if the statutory formulation is preliminary to, or distinct from, the decision-making process, it is more likely to turn on an objective fact: Timbarra at [50] and [52] and Pallas Newco at [47]-[48]; Reysson at [55]; 4. Where the statutory formulation requires a broad judgment on a matter on which reasonable minds may differ, and particularly where the decision-maker has particular experience, it is less likely to be intended by Parliament to be an objective fact: Timbarra at [89]-[90]; Reysson at [55]; 5. Conversely, where a factual condition is identifiable in precise terms, that may tend in favour of it being a jurisdictional fact: Pallas Newco at [53] and Ross v Lane at [80]; and 6. The inconvenience that may flow from classifying a factual reference in a statutory scheme as a jurisdictional fact may tend against it being so characterised: Timbarra at [91]; Reysson at [56].
The presence or absence of these factors does not dictate a particular outcome. Rather, it informs the process of statutory construction: Reysson at [56].
There are a number of matters which tend in favour of Mr Whippy's contention that the factual condition in s 89B(2)(a) is a jurisdictional fact.
First, the scope and purpose of the Anti-Discrimination Act is an indicator in favour of the condition in s 89B(2)(a) being a jurisdictional fact. The Anti-Discrimination Act is remedial legislation providing recourse for those who may have suffered discrimination including on the ground of race. The scheme provided under the Anti-Discrimination Act is one in which complaints are facilitated, investigated, including by the use of compulsory powers to produce documents or provide information, and potentially resolved through conciliation. It also enables compensation or other orders to be made to redress discrimination including on the ground of race. Complaints may be made by those who are vulnerable and by those without any legal training or assistance. Further, as set out above, the scheme of the Anti-Discrimination Act is to facilitate complaints being made with little or no formality, and to enable complaints to be amended once accepted including to add a new complaint. In these circumstances, the step of denying a complaint under s 89B because it could not amount to a relevant contravention is a significant step. It denies, at the outset of the process, the benefit of remedial legislation. Where a complainant is sufficiently concerned to bring judicial review proceedings in this Court, careful scrutiny of the question whether the conduct complained of could amount to a relevant contravention is consistent with the object and purpose and with the scheme of the Anti-Discrimination Act. It is also consistent with the Court construing the Anti-Discrimination Act to give the fullest relief which the fair meaning of its language will allow whilst avoiding an unreasonable or unnatural construction.
Second, the condition in s 89B(2)(a) arises for consideration as a precondition to the exercise of the power to investigate and seek to resolve a complaint or refer a complaint to the Tribunal. It is preliminary to the exercise of such powers. Whilst the question of whether a contravention of the Anti-Discrimination Act could be, or is, disclosed by a complaint will arise during the process of investigation and consideration, denial of a complaint under s 89B is a step preliminary to those processes. It is not a determination that falls to be made "in the course of the consideration of the exercise of the power": cf Reysson at [64]. That again, consistent with the authority set out above, tends in favour of the condition in s 89B(2)(a) being construed as a jurisdictional fact.
Third, the language of s 89B as a whole also supports the conclusion that the factual condition in s 89B(2)(a) is a jurisdictional fact. Whilst under s 89B(1) it is for the President to "determine whether or not a complaint … is to be accepted or declined, in whole or in part", and that is clearly an evaluative judgment, that evaluative judgment is premised upon the President having power to decline a complaint. The President only has such power where one of s 89B(2)(a)-(e) is satisfied. Thus, each of s 89B(2) is a precondition to the decision whether or not to accept a complaint, which in turn is a precondition to the substantive investigative and other steps which are taken once a complaint is accepted.
Fourth, there is nothing in the chapeau to s 89B(2) that suggests that the discretion it confers to decline a complaint turns upon the state of mind of the President. The University contends that s 89B should be read as if it provided that the power to decline a complaint was enlivened by the President being satisfied of one or more of the matters set out at s 89B(2)(a)-(e). However, the ordinary and natural meaning of s 89B(2)(a) is that the President's power to decline a complaint turns upon, as a fact, whether no part of the conduct complained of could amount to a relevant contravention. The same would be so of each of s 89B(2)(b)-(e), albeit that the factual condition in s 89B(2)(e) is itself referable to the President's state of mind, namely the President not being satisfied that the complaint was made by or on behalf of the named complainant. In my judgment, the language of s 89B supports the factual condition in s 89B(2)(a) being a jurisdictional fact.
Fifth, the express inclusion in s 89B(2)(e) of reference to the President not being satisfied of the matters set out therein, is an indicator that Parliament did not intend each of s 89(2)(a)-(d) to turn upon the President's state of satisfaction or non-satisfaction. Had Parliament intended each of the subparagraphs of s 89B(2) to turn upon the President's state of mind it would be expected that Parliament would, as it did in s 89B(2)(e) have said so. Moreover, the terms of s 89B(2) can be contrasted with those of s 92 which provides the President with the power to decline a complaint during the investigation stage. Section 92(1)(a) expressly makes that power to decline a complaint in whole or in part conditional upon the President being "satisfied" of any of the matters in s 92(1)(a)(i)-(vii) which relevantly include, at (ii), that "the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations". Thus, Parliament has expressly made the power to decline a complaint during the investigation process subject to the President reaching a particular state of satisfaction. Parliament did not, however, expressly make the power in s 89B(2) to decline a complaint before investigation subject to a similar state of satisfaction. That tends to favour a construction of the factual condition in s 89B(2)(a) as a jurisdictional fact. Contrary to the submission of counsel for the University, the difference in language is not explained by the different stage of the complaints handling process at which ss 89B and 92 apply. Both provide for a binary outcome with a complaint either being declined or permitted to proceed. The mere fact that s 92 applies after there may have been steps taken to investigate or conciliate a complaint does not diminish the significance, for the purpose of construction, of Parliament having used the language of "satisfaction" where it was intended to condition the exercise of a power by reference to the state of mind of the decision-maker.
Sixth, under s 89B(2)(b) the President may decline a complaint on the basis that the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint. In most cases that will be a matter of factual precision and not evaluative judgment. Given that, it may be expected that either all or none of the factual criteria in s 89B(2)(a)-(e) are jurisdictional facts that could support a construction of the factual condition in s 89B(2)(a) as a jurisdictional fact. As set out by Basten AJA further in Ross v Lane at [80], cited by Leeming JA (Gleeson and Adamson JJA agreeing) in El Khouri at [41]: "There may … be a difficulty in drawing such a distinction [between jurisdictional and non-jurisdictional facts] where the statute includes in one provision criteria some of which are precisely defined and others of which involve matters of degree. It may be unlikely that the legislature intended some to be "jurisdictional facts", but not others." However, as counsel for the University submitted, the fact that each of s 89B(2)(a), (c)-(d) and (e) involve matters of evaluative judgment could point in the opposite direction. Overall, this is not a factor carrying much weight in either direction.
There are also factors tending against the factual condition in s 89B(2)(a) being construed as a jurisdictional fact. The most significant of these is that under s 89B(4), a decision under s 89B to decline a complaint in whole or in part is not reviewable by the Tribunal. As submitted by counsel for the University, that suggests that Parliament did not intend a decision to decline a complaint to be subject to later merits review. That in turn could suggest that Parliament did not intend the factual condition in s 89B(2)(a) to be a jurisdictional fact.
The second matter which tends against the factual condition in s 89B(2)(a) being a jurisdictional fact is that it requires an evaluative judgment to be formed as to whether or not the conduct complained of could amount to a relevant contravention. That weighs in favour of the factual condition in s 89B(2)(a) not being a jurisdictional fact.
Third, the President of ADNSW, or their delegate, would be expected to have some experience and expertise which would bear upon that task. Again, that weighs in favour of the condition in s 89B(2)(a) not being a jurisdictional fact.
Contrary to the submission of counsel for the University, the consequence of the factual condition in s 89B(2)(a) being a jurisdictional fact does not lead to any significant inconvenience. If a complaint is declined when, on an objective analysis, there is no power under s 89B(2) to decline the complaint, the consequence is simply that the President must redetermine under s 89B whether to accept or decline the complaint. If the President determines that there is no power to decline the complaint, or that there is such power but the complaint should nonetheless be accepted, the complaint will then be investigated and may potentially be denied at a later stage in the process of investigation and consideration, resolved by conciliation or otherwise or referred to the Tribunal. If there has been delay such that that process could not fruitfully be undertaken, then that may be a reason for a discretionary refusal of relief in any judicial review claim seeking to set aside the decision declining the complaint. Thus, there is no significant inconvenience flowing from the construction of s 89B such that the factual condition in s 89B(2)(a) is a jurisdictional fact. Whilst it is correct that there is nothing in the Anti-Discrimination Act to prevent a further complaint being brought, that does not undermine the utility of the Court being able, in judicial review proceedings, to examine whether or not the factual precondition to a decision to decline a complaint under s 89B is made out. Thus, potential inconvenience is, in this case, a neutral factor.
Having regard to the matters set out above the question whether the factual condition in s 89B(2)(a) is a jurisdictional fact is finely balanced. My provisional view is that having regard in particular to the object and purpose, and scheme, of the Anti-Discrimination Act and the contrast between the language of s 89B(2)(a) on the one hand, and s 89B(2)(e) and s 92 on the other hand, the better view is that the factual precondition in s 89B(2)(a) is a jurisdictional fact.

Could the conduct complained of amount to a contravention of s 17 of the Anti-Discrimination Act?

As set out above, Mr Whippy contends that the University, through Professor Johnston, discriminated against him on the ground of race, within the meaning of s 7(1)(a), by denying or limiting his access to part of the Lecture. He contends that this was a contravention of s 17(2)(a) of the Anti-Discrimination Act. By reason of this, he contends, the jurisdictional precondition to the Delegate declining his Complaint under s 89B was not satisfied. Of course, whilst Mr Whippy contends that the University did discriminate on the ground of race in contravention of s 17(2)(a), given the terms of s 89B(2)(a), his contention requires only that he establish that the conduct of the University, or part thereof, could amount to such a contravention.
The difficulty with Mr Whippy's contention lies in the language of s 7(1)(a) of the Anti-Discrimination Act. For the matters complained of to amount to discrimination on the ground of race within the meaning of s 7(1)(a), Mr Whippy would have to establish that, by being invited to "check out" of the Lecture while The Birth of a Nation was played if he thought he may be offended, he was treated less favourably than a comparator in the same or similar circumstances who did not identify as Black. This is because direct discrimination contrary to s 7(1)(a) requires a focus upon the treatment on its face, rather than the effects or impact of the treatment: Waters at 392 (Dawson and Toohey JJ). As Dawson and Toohey JJ explained (at 392), direct discrimination occurs where the aggrieved person is treated in a different and less favourable manner when compared with how a person is or would be treated in comparable circumstances, and that that less favourable treatment is on the basis of an unacceptable consideration, such as race.
Here, the treatment of Mr Whippy by the University, on its face, was no less favourable than the treatment of a student in comparable circumstances who did not identify as Black. I accept the University's submission that Professor Johnston gave an invitation, and not an instruction, to students when he said that students should "check out for a few minutes" if it seemed that watching excerpts from The Birth of a Nation would be disturbing. Whilst Professor Johnston used the word "should", the tenor of his words was that students should feel free to leave the Lecture if they thought that the content would be disturbing. However, all students who attended the Lecture, irrespective of race, were given that invitation. Whilst it can be accepted that students who identified as Black would be more likely than other students to anticipate that they would be disturbed by watching excerpts of the film, the invitation to check out cannot reasonably be construed as an invitation to students who identified as Black to check out while excerpts of the film were played. There may well have been other students who anticipated that they would be disturbed by viewing excerpts from a film that appeared to condone racism. Mr Whippy was not treated less favourably than students who did not identify as Black in the same or similar circumstances.
Whilst Mr Whippy submits that the invitation given by Professor Johnston, and the showing of excerpts of the film, had a different impact upon him than it had upon a person who did not identify as Black, that does not establish direct discrimination contrary to s 7(1)(a) of the Anti-Discrimination Act.
In the circumstances, Mr Whippy has not established that the conduct complained of could have been unlawful discrimination on the ground of race in contravention of ss 7(1)(a) and 17(2)(a) of the Anti-Discrimination Act.

Could the conduct complained of amount to a contravention of s 51(2) of the Anti-Discrimination Act?

The second way in which Mr Whippy contends that the conduct complained of could amount to a contravention of the Anti-Discrimination Act relies upon ss 20C(1) and 51(2) of the Anti-Discrimination Act. Mr Whippy submits that in playing excepts from The Birth of a Nation, the University published an advertisement indicating an intention to do an unlawful act, being to incite hatred towards, or serious contempt for, persons on the ground of race contrary to s 20C(1) of the Anti-Discrimination Act.
In response the University makes, in essence, two submissions. The first is that this was not a matter which was articulated by Mr Whippy in the Complaint, and in those circumstances it was not something that the Delegate was obliged to consider when determining whether or not, for the purposes of s 89B(2)(a), any part of the conduct complained of could constitute a contravention. In support of this submission the University relies upon the definition of a complaint in s 87 of the Anti-Discrimination Act as meaning a complaint under s 87A, and the terms of s 87A(1) which refer to a complaint "that a named person has, or named persons have, contravened a provision of this Act or the regulations …". The University contends that, having regard to these provisions, the reference to "the conduct complained of" in s 89B(2)(a) should be read as limited to the particular contravention identified in any complaint made under s 87A.
This submission should be rejected. Section 89B(2)(a) refers not to the complaint lodged, but to the conduct complained of. In these circumstances, the relevant question under s 89B(2)(a) is whether "no part of the conduct complained of" could amount to a relevant contravention. That requires an assessment by the President of the conduct complained of by reference to the various contraventions provided for in the Anti-Discrimination Act. It does not turn on the particular contravention identified by the complainant. That construction flows from the language of s 89B(2)(a). It is also consistent with the object and purpose of the Anti-Discrimination Act as discussed above.
The University's second submission on this issue relies upon the fact that s 51(2) of the Anti-Discrimination Act is itself a provision for which a specific penalty of 50 penalty units in the case of a body corporate, or 10 penalty units in any other case, is imposed. Section 87A(1) of the Anti-Discrimination Act provides that a complaint may be made alleging a contravention "other than a provision for which a specific penalty is imposed". Thus, Mr Whippy was not permitted under the Anti-Discrimination Act to complain to the President of a contravention of s 51(2), as a specific penalty is imposed for a contravention of s 51(2). In those circumstances, as the University submits, Mr Whippy could not have included a complaint of a contravention of s 51(2) in his complaint under s 87A of the Anti-Discrimination Act. That position is then underscored by s 89B(2)(c), which gives the President the power to decline a complaint where the conduct complained of could amount to a contravention of a provision of the Anti-Discrimination Act for which a specific penalty is imposed.
There is a further difficulty with Mr Whippy's contention in this regard. In his oral submissions, Mr Whippy made the following submission: "My allegation is that the first defendant contravened s 51, advertisements, by distributing material that would contravene s 20C, given that the material was distributed within an educational platform. The contravention of s 20C is not substantiated, but a contravention of advertisements, s 51, is."
In this submission, Mr Whippy effectively accepted that, even if he were to establish that the playing of excepts of The Birth of a Nation was a public act that incited hatred towards or serious contempt for Black people, that would not be unlawful as s 20C(2)(c) provides that s 20C does not render unlawful "a public act, done reasonably and in good faith", for academic purposes in the public interest. Assuming, without deciding, that the showing of the film during the Lecture was a public act falling within the terms of s 20C(2)(c), as was effectively accepted by Mr Whippy, it would not, in any event, be unlawful having regard to the terms of s 20C(2)(c). It necessarily follows that there can be no contravention of s 51(2), as there is no "intention to do an act that is unlawful under this Act" being advertised. That is a further reason why Mr Whippy's contention in this regard should be rejected.
In those circumstances, Mr Whippy's contention that the Delegate did not have power to decline his Complaint under s 89B(2)(a), as the conduct complained of could have amounted to a contravention of s 51(2) of the Anti-Discrimination Act, should be rejected.

Conclusion as to grounds 2 to 4 to the extent that they rely upon jurisdictional fact

Having regard to my conclusions as set out above, grounds 2 to 4 should be rejected to the extent that they rely upon Mr Whippy's contentions as to jurisdictional fact.

No evidence ground

In ground 4, as set out in the summons, Mr Whippy also contends that there was no evidence to support the Delegate's second reason as set out at [3] above. As set out by the High Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41 at [17] (Keane, Gordon, Edelman, Steward and Gleeson JJ), if a statutory power is exercised and a finding of fact is made, that finding of fact must be: "based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the [decision-maker's] personal or specialised knowledge or by reference to that which is commonly known. By "no evidence" this has traditionally meant "not a skerrick of evidence"." (Footnotes omitted).
This reflects the position as set out by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; [1990] HCA 33 (Brennan and Deane JJ agreeing) that: "So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place." (Emphasis in original).
Here, there was material before the Delegate that was capable of supporting the second reason given for the decision. Professor Johnston had instructed students that they should "check out" if it seemed to them that watching excerpts from The Birth of a Nation would be disturbing. Moreover, given that the invitation was given to all students attending the Lecture, and there was no differential treatment of students who identified as Black, the evidence supported the second reason which the Delegate gave for making the decision.
It follows that ground 4 should be dismissed.

Conclusion

In the circumstances, Mr Whippy's summons should be dismissed.
The University in its written submissions contended that the summons should be dismissed with costs. Mr Whippy did not address the question of costs in his written submissions in reply or in his oral submissions. In these circumstances, having regard to my conclusions on the substance of Mr Whippy's summons, the appropriate order is the usual order that costs should follow the event.
Accordingly, the orders of the Court are: 1. The plaintiff's summons filed 28 August 2023 is dismissed. 2. The plaintiff's motion for summary judgment filed 7 November 2023 is dismissed. 3. The plaintiff is to pay the costs of the summons and the motion for summary judgment, to be assessed if not agreed.

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: 19 December 2023

Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004(NSW)

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