Budd v The University of Sydney [2010] NSWADT 77 (23 March 2010)

Last Updated: 23 March 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Budd v The University of Sydney [2010] NSWADT 77


DIVISION:
EQUAL OPPORTUNITIES DIVISION

PARTIES:
APPLICANT
Pamela Budd

RESPONDENT
University of Sydney



FILE NUMBERS:
081132

HEARING DATES:
28 October 2009

SUBMISSIONS CLOSED:
9 March 2010



DATE OF DECISION:
23 March 2010

BEFORE:
Rice S - Judicial MemberHayes E - Non-Judicial MemberMonaghan-Nagle L - Non-Judicial Member





LEGISLATION CITED:
Age Discrimination Act 2004 (Cth)
Disability Discrimination Act 1992 (Cth)
Sex Discrimination Act 2004 (Cth)
Anti-Discrimination Act 1977 (NSW)
Anti-Discrimination Act 1991 (Qld)
Anti-Discrimination Act (NT)
Discrimination Act 1991 (ACT)
Equal Opportunity Act 1995 (Vic)

CASES CITED:
Waters v. Public Transport Corporation [1991] HCA 49 at [15]; [1991] HCA 49; (1992) 173 CLR 349
Woods v Wollongong City Council [1986] EOC 92-174

TEXTS CITED:


APPLICATION:
Disability, education, admission as a student, requirement, reasonableness

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
C Spruce, barrister
RESPONDENT
K Eastman, barrister


ORDERS:
The whole of the complaint is dismissed.


Reasons for Decision:

REASONS FOR DECISION


1 For the reasons given below, the complaint is dismissed. That means that Ms Budd has been unsuccessful in her complaint of discrimination.

REASONS FOR DECISION

Background

2 Ms Budd has a number of disabilities. She suffers ‘chronic psychiatric handicaps’, including severe agoraphobia, panic disorder, social anxiety disorder, situational phobia, depression, (reports: Mr Ilan Cohen 2 March 2009, Dr Peter Krug 12 September 2005, Mr Hugo Rodriguez 14 February 2005, 13 March 2007 and 19 April 2007; letter: Dr L Goodman 3 July 2006).

3 The effect of Ms Budd’s disabilities is to significantly limit the occasions, and circumstances under which, she can leave her home.

4 In 2008 Ms Budd wanted to enrol in a Bachelor of Arts degree course majoring in Biblical Studies at the University of Sydney. She made inquires of the University and learnt that the Biblical Studies major required her to attend on campus for at least 75% of classes. Ms Budd wrote to the University asking to be excused from the attendance requirement, and submitted an application for enrolment.

5 Ms Budd exchanged correspondence and telephone calls with officers of the University regarding the 75% attendance requirement. The University reiterated its requirement that students in the Biblical Studies major attend classes on campus. It offered the assistance of its Disability Services Office if she did attend the classes, and proposed that she consider enrolling instead in a distance education course at another university.

6 On 30 June 2008 Ms Budd complained to the NSW Anti-Discrimination Board, saying that she could not meet the University’s 75% attendance requirement because of her disabilities.

Complaint

7 Ms Budd complains that the University has discriminated against her on the ground of her disability, either by refusing or failing to accept her application for admission as a student, or in the terms on which it is prepared to admit her as a student (section 49L(a) and (b) of the Anti-Discrimination Act).

Conduct complained of: refusing or failing to accept an application

8 On the first of these – refusing or failing to accept an application for admission as a student – the University says that there is no evidence that it refused or failed to accept Ms Budd’s application.

9 Ms Budd submitted to the University an ‘application for admission as a student’ in the form of a two page document titled ‘Application for admission into a Bachelor’s degree ...’ which sought admission into a Biblical Studies course. We understand from the evidence that this course would have been a Bachelor of Arts degree course majoring in Biblical Studies.

10 In his letter to Ms Budd of 11 February 2008 Professor Stephen Garton, then Dean of the Faculty of Arts at the University, acknowledged Ms Budd’s application for admission to a Biblical Studies course. After noting Ms Budd’s request that she not attend classes, Professor Garton said that ‘[u]fortunately these course are offered on campus and attendance and participation in all lectures and tutorials is mandatory’. He drew Ms Budd’s attention to the support available from the Disability Services Office if she did attend classes, and proposed in the alternative that she ‘consider enrolling in a course that is offered by distance education’ through other institutions. He finished the letter saying ‘It is regretted that we are unable to assist you in this instance’.

11 A week later Professor Garton wrote again to Ms Budd and reiterated the mandatory attendance requirement. Still later in February, Dr Margaret Edmond, Acting Director of Student Administrative and Support at the University, responded to representations made by Ms Budd, ‘reaffirming’ what Professor Garton had said about the mandatory attendance requirement and the support available from the Disability Services Office. In April the then Vice-Chancellor of the University, Professor Gavin Brown, responded to further representations made by Ms Budd, reiterating the mandatory attendance requirement and providing an explanation for it. In further response to Ms Budd later in April, Professor Brown said ‘I see no reason to change the decision’.

12 In none of this correspondence does the University say that Ms Budd’s application is refused or not accepted. Professor Garton’s ‘inability to assist in this instance’ is ambiguous – does it refer to Ms Budd’s application, or to her request to not attend class? Similarly Professor Brown’s reference to ‘the decision’ is ambiguous – does it refer to a decision to not accept Ms Budd’s application, or to stand by the mandatory attendance requirement?

13 The correspondence does not state that the University refused to accept Ms Budd’s application, or indicate that it failed to accept it. Rather, in its correspondence the University was pointing out to Ms Budd what would be expected of her by way of attendance requirements if her application was accepted: Ms Budd was able to enrol, but was on notice that she would have to meet the attendance requirement. The correspondence does not support an argument that Ms Budd’s application was refused or not accepted, and there is no other evidence that that was the case. In these circumstances, we are not satisfied that the University did refuse or fail to accept Ms Budd’s application, and such refusal or non-acceptance cannot be the basis of a complaint against the University under the Anti-Discrimination Act.

Conduct complained of: admission on terms

14 Ms Budd says that, alternatively, the University discriminated against her in the terms on which it was prepared to admit her as a student, specifically that she attend 75% of classes. Again, the University says there is no evidence of its being prepared to admit her on those terms.

15 The same correspondence we describe above does not show that Ms Budd’s attending 75% of classes was a term on which the University was prepared to admit her as a student. Rather, the whole of the evidence shows that the attendance requirement was a condition of Ms Budd’s being able to pass the course in which she was going to enrol. The University was pointing out to Ms Budd what would be expected of her by way of attendance requirements if she was admitted.

16 The correspondence does not support an argument that the University was prepared to admit her as a student on terms that she attend 75% of classes, and there is no other evidence that that was the case. In these circumstances, we are not satisfied that the University was prepared to admit her as a student on terms that she attend 75% of classes, and that cannot be the basis of a complaint against the University under the Anti-Discrimination Act.

No relevant conduct complained of

17 Ms Budd is unsuccessful in her complaint because at the time she made the complaint she had no basis for complaint under the Anti-Discrimination Act: the University had not done what she thought they had done: it had not refused or failed to accept her application for admission as a student, and had not imposed terms on which it was prepared to admit her as a student. Ms Budd therefore cannot make a complaint under s49L(1) of the Anti-Discrimination Act, and her complaint is misconceived.

18 Ms Budd is in this situation despite her knowing that if she did go ahead and enrol as a student, she would then be subject to a requirement which she would say was discriminatory. If Ms Budd had proceeded with her application and enrolled in the Biblical Studies major, she would then have been subject to the 75% attendance requirement. She could then have complained under the Anti-Discrimination Act that the effect of that requirement was to deny her access, or give her limited access to the benefits of the course, or cause some other detriment to her (s49L(2)).

19 But the way the Anti-Discrimination Act is drafted, Ms Budd complained too soon: she could not complain of a requirement which she knew was going to be imposed on her; rather, she had to wait until she was in a position that it was in fact imposed before she could complain: discrimination under the Anti-Discrimination Act can occur only when the University actually ‘requires’ compliance with a requirement or condition (s49B(1)(b)), not when it is anticipated that it will require compliance (see eg Woods v Wollongong City Council [1986] EOC 92-174; NSW Law Reform Commission, Report 92: Review of the Anti-Discrimination Act 1977 (NSW), 1999, [3.45]-[3.46]). This is not the case in some other Australian jurisdictions, which allow complaints about ‘proposed’ conduct, eg s9(1) Equal Opportunity Act 1995 (Vic), s8(1) Discrimination Act 1991 (ACT), s11(1) Anti-Discrimination Act 1991 (Qld), s20(2) Anti-Discrimination Act (NT), s15(1)(a) Age Discrimination Act 2004 (Cth), s6(2)(a) Disability Discrimination Act 1992 (Cth), s5(2) Sex Discrimination Act 2004 (Cth).

20 In the circumstances, particularly the terms of the correspondence we describe above, it is quite understandable that Ms Budd did think that her application had been refused, or that the University was prepared to admit her only on terms. If she had been advised at the time of lodging her complaint, she may have been told to enrol and start the course and subject herself to the requirement and then make the complaint. That seems an onerous and wasteful process when the object of complaint – the 75% attendance requirement – is well-known from the outset, but it would have been necessary because the Anti-Discrimination Act does not allow anticipatory complaints.

21 This result leaves the proceedings in an unsatisfactory state, as the question raised by Ms Budd – as to whether a 75% attendance requirement is discriminatory – is a real one, for her, for prospective students, and for the University. In light of the concern this question has caused both Ms Budd and the University, and could cause others in the future, we set out briefly what our reasoning would have been had the complaint not been misconceived.

Reasonableness of the requirement

22 If we were able to say that the University had actually refused or failed to accept Ms Budd’s application or had imposed terms on which it was prepared to admit her as a student, or if Ms Budd had waited to become a student and had thereby subjected herself to the 75% attendance requirement, we would have been able consider the merits of Ms Budd’s complaint about that requirement. It would have been our view that the 75% attendance requirement was reasonable in the circumstances, and so Ms Budd would in any event have been unsuccessful in her complaint.

23 It is clear that Ms Budd could not have complied with a 75% attendance requirement. We would accept without the need for evidence that a substantially higher proportion of persons who do not have her disability could have complied or would have been able to comply with a 75% attendance requirement. The remaining question would be whether the requirement was not reasonable having regard to the circumstances of the case (s49B(1)(b) of the Anti-Discrimination Act). We would be guided by the approach to this question by what Brennan J said in Waters v. Public Transport Corporation [1991] HCA 49 at [15]; [1991] HCA 49; (1992) 173 CLR 349 at 378.

24 In this matter, the activity to which the requirement related was the University’s teaching the Biblical Studies major. The first question would be whether the 75% attendance requirement was appropriate and adapted to that activity. The University, through the evidence of Professor Rutland, explained why the attendance requirement was appropriate and adapted to teaching the Biblical Studies major. In his April 2008 letter Professor Brown also described the rationale for the requirement. We agree that the attendance requirement was appropriate and adapted to teaching the Biblical Studies major.

25 The next question would be whether teaching the Biblical Studies major could have been done without imposing a discriminatory requirement. Ms Budd proposed that instead of attending 75% of classes, she would listen to recordings of the lectures (which the University does in fact make), participate in tutorials by telephone, and discuss the subject matter with her teachers by telephone and email. But what Ms Budd proposes is not an alternative way for the University to engage in the same activity. Attendance of some sort was integral to University’s teaching the Biblical Studies major, even if there can be some dispute as to the amount of attendance required. Teaching the Biblical Studies major without an attendance requirement would have been a different activity, and the Anti-Discrimination Act cannot operate so as to require an educational authority to conduct a different activity (unless the activity itself is unlawful), only to conduct the identified activity in a non-discriminatory way.

26 'The approach to the activity proposed by Ms Budd to avoid a discriminatory requirement would not have been appropriate and adapted to the identified activity. Instead it would have resulted in a different activity, for example teaching a Biblical Studies major by distance education using teaching methods and technology designed for that purpose, which the Anti-Discrimination Act cannot require of the University.

27 In our view therefore, the requirement, had it been imposed on Ms Budd, would not have been unreasonable.

Costs

28 As we said above, it is quite understandable that Ms Budd misconceived the basis of a complaint, thinking that her application had been refused, or that the University was prepared to admit her only on terms. We are satisfied that there are no circumstances to displace the presumption that each party will bear its own costs in the proceedings.

Orders

1. The whole of the complaint is dismissed.