Wensley -v- Director General, Department of Education and Training [2000] NSWADT 142

CITATION: Wensley -v- Director General, Department of Education and Training [2000] NSWADT 142 DIVISION: Equal Opportunity Division APPLICANT Scott Wensley PARTIES: RESPONDENT Director General, Department of Education and Training FILE NUMBER: 991086 HEARING DATES: 01/06/2000 SUBMISSIONS CLOSED: 07/03/2000 DATE OF DECISION: 10/13/2000

BEFORE: Goode P - Judicial Member; Nemeth de Bikal L - Member; Luger M - Member APPLICATION: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance MATTER FOR DECISION: Application under s.111(1) of the Act LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: Langley –v– Niland & Anor (1981) 2NSWLR 104 Hill –v– University of New England (1990) EOC 92-29 APPLICANT REPRESENTATION: A Bateman, barrister RESPONDENT E Brus, barrister ORDERS: 1. The s.111(1) application be dismissed.; 2. The matter be listed for a case conference on 19 October 2000 at 9:30am.

Introduction 1 This is a preliminary application, in effect, seeking summary dismissal of part of Mr Wensley's complaint. Since we have yet to hear any evidence, our decision is not based on an assessment of the merits of Mr Wensley's case. 2 At all relevant times, Mr Wensley was a student at one of the Commission's Colleges. He alleges that the Commission unlawfully discriminated against him, in contravention of s. 49L of the Anti-Discrimination Act, 1977 ("the Act"), on the ground that he was presumed to have a disability. He alleges that the Commission presumed he had the disability of paedophilia and / or human immunodeficiency virus ("HIV"). 3 The Commission seeks relief pursuant to s. 111(1) of the Act. The relief sought is, however, on a restricted basis. We are asked to dismiss that part of the complaint which alleges that Mr Wensley was unlawfully discriminated against on the ground that he was presumed to have paedophilia. The remaining part of the complaint which alleges that Mr Wensley was unlawfully discriminated against on the ground that he was presumed to have HIV is not the subject of a similar challenge. 4 The relief sought by the Commission is opposed by Mr Wensley. Although strictly the respondent to the application, for convenience Mr Wensley is referred to as the Applicant. 5 The Commission's application originally had two limbs. In essence, it was submitted that: (1) Paedophilia is not a disability for the purposes of the Act. (2) If it is, the nature and characteristics of the disability are such that it would be contrary to public policy to provide protection under the Act. However, during the course of legal argument before the Tribunal Ms Brus, Counsel for the Commission, conceded that for the purposes of the present application, paedophilia was a disability within the meaning of the Act. Accordingly, the argument proceeded solely upon the second limb of the application. Background 6 In order to address the issues raised by the application, it is necessary to look briefly at the background to the complaint and its passage through the Anti-Discrimination Board ("the Board"). 7 The Board received a complaint from the Applicant (through his solicitor, Mr Hunter) on 17 October 1997, followed by an amended complaint dated 17 April 1998, alleging that the Commission had unlawfully discriminated against him on the ground that he was presumed to have paedophilia and / or HIV. At the relevant time, the Applicant was a student enrolled in the Diploma of Community Welfare at the Commission's Blue Mountains College ("the College"). 8 The Points of Claim subsequently filed with the Tribunal on 15 December 1999 are couched in similar, although not identical, terms to the amended complaint. Relevantly, they allege that senior members of the Commission's staff discriminated against the Applicant on the ground that he was presumed to have paedophilia and / or HIV by: · instituting disciplinary proceedings against him; · excluding him from the College; · censoring his speech; · terminating his field placement with the Mid-Mountains Neighbourhood Centre ("the Centre"); · banning him from having any contact with the Centre; · arranging for the Applicant's participation with the Mountains Outreach Community Services ("Outreach") to be terminated. 9 The President of the Board conducted an investigation into the complaint. What follows is drawn primarily from the material obtained by the President in the course of his investigation. Some of the material lacked precision and was, at times, difficult to follow. Nevertheless, the essential matters are set out below. 10 In or about May 1997, the Commission received complaints from a number of students alleging that the Applicant had made unwelcome and repeated comments (despite being told to refrain from doing so) about his claimed sexual activities as a paedophile. It appears that these alleged sexual activities had occurred in the past. The Applicant is also alleged to have made similar disclosures to some of the Commission's teaching staff. The students and the staff were reported to be distressed by the comments. 11 According to the Commission, the Applicant did not respond to either written or verbal requests to discuss the allegations with the Head Teacher of Welfare, Ms Goslett. As a consequence, he was notified by letter dated 29 May 1997 from the College's Acting Manager, Ms Marsh, that his actions amounted to alleged breaches of student discipline. He was advised that he had a right of reply. Ms Marsh also informed him that Ms Goslett had advised her that as he had not responded to her requests to discuss the allegations with her, she (ie. Ms Goslett) had: · terminated his field placement with the Centre and requested that he not have any further contact with it; · informed Outreach of the alleged disclosures and advised that any further contact with it would be inappropriate. 12 Subsequently, by way of confirmation, the Applicant received a letter from the College Director, Ms Harris, that the alleged breaches of discipline contravened clauses 4(1)(a) and 4(2)(e) of the Commission's Student Discipline Regulation ("the Regulation") and that, accordingly, he had a case to answer (see para 15 of this decision). He was also advised that the Regulation did not require the Commission to release the names of the students involved and further, that in the absence of the students' consent, the Commission was not prepared to do so. 13 In his written reply to the alleged breaches of discipline, the Applicant, through his Counsel, Ms Bateman, raised certain alleged procedural irregularities. He maintained that the notices had not been validly served on him and that they did not sufficiently specify the alleged offending conduct. In his reply, the Applicant expressed no view about the substance of the allegations made against him. 14 It is of primary significance that neither in his reply nor at any subsequent stage has the Applicant made any concession that the allegations against him are true or that he is, or ever has been, a paedophile. 15 On 8 October 1997 the Commission found that the Applicant had impaired the reasonable freedom of other persons to study or work at the College, in contravention of clause 4(1)(a) of the Regulation. It was also found that he had disregarded a direction from a member of staff, in particular a direction to refrain from causing distress to other students, in contravention of clause 4(2)(e) of the Regulation. 16 As a consequence of the Commission's findings, the Applicant was advised by letter dated 8 October 1997 that the appropriate penalty was: · exclusion from the College for a period of 30 days; and · for a period of 12 months, attendance at classes at the College only in accordance with certain conditions, namely that he not initiate discussions about his sexual practices with other students or staff. The Applicant was also advised that the penalty would take effect from 9 October 1997. 17 The Applicant appealed against the Commission's findings and the penalty imposed on him but was unsuccessful. His appeal was dismissed on 21 November 1997. Investigation by the Board 18 After lodging his complaint with the Board, the Applicant was advised by the Acting President on 6 July 1999 that, pursuant to s.90(1) of the Act, she had decided to decline the part of his complaint which related to his claim that paedophilia is a disability ("the paedophilia complaint"). She stated her reason for doing so in the following terms: "As well as being a disability, paedophilia is also a criminal act in NSW. As a matter of public policy, the President does not consider that a condition which falls under the Crimes Act should be dealt with by the Board as a disability." 19 Section 90(1) of the Act provides: "Where, at any stage of the President's investigation of a complaint, the President is satisfied that the complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, the President may, by notification in writing addressed to the complainant, decline to entertain the complaint." 20 The Applicant was advised by the Acting President that she had declined the "paedophilia complaint" by relying on the "for any other reason" limb of s.90(1). 21 The complaint was nevertheless referred to the Tribunal by the President of the Board on 5 August 1999, in accordance with the provisions of ss. 91 and 94 of the Act. Relevant Legislation 22 Section 111(1) of the Act is worded in very similar terms to s.90(1) of the Act and provides: "Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint." 23 Even though there is only one complaint before us, we have been asked to dismiss only part of it, namely the paedophilia complaint. Without finally determining whether s. 111(1) empowers the Tribunal to dismiss part of a complaint, rather than the whole complaint, the present application has proceeded on the basis that we have the power to do so. Given our finding in para 37 below, it has not been necessary to decide this point. 24 Both the Act and the Administrative Decisions Tribunal Act, 1997 ("the ADT Act") contain provisions which permit the Tribunal to dismiss a complaint before a full inquiry has been concluded. 25 Interestingly, s.73(5)(h) of the ADT Act is couched in narrower terms than s.111(1) of the Act and provides that the Tribunal: "may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance." 26 Although s.73(5)(h) of the ADT Act and s.111(1) of the Act are designed to operate together (see s.111(3) of the Act), it is clear that the "for any other reason" category has been omitted from s.73(5)(h). The Commission relies in the present case on s.111(1). 27 Of the five specific descriptions which the Tribunal may give to a complaint it is asked to dismiss under s.111(1) of the Act, the category "for any other reason" appears to be of a different nature to the preceding four descriptions. As was observed by Hunt J in Langley –v– Niland & Anor (1981) 2NSWLR 104 at p.107, in relation to the analogous provisions of s.90(1) of the Act, the descriptions "frivolous", "vexatious", "misconceived" and "lacking in substance" all belong to a common class and all refer to the insufficiency or to the absence of merit of the factual basis for the allegations made in a complaint. By way of contrast, the expression "for any other reason" is subject to a strong indication not to be read ejusdem generis with the categories preceding it (See also Hill –v– University of New England (1990) EOC 92-291 at pp. 77, 939 – 77, 940.) With respect, we consider His Honour's views are equally applicable to s.111(1) of the Act. 28 Although no authority was cited to us on the point, for the purposes of the present argument we are prepared to assume that the category "for any other reason" is broader in scope than its four companion descriptions. We discuss the question of whether the category "for any other reason" is broad enough to include the public policy consideration advanced by the Commission in para 37 below. Is paedophilia a disability within the meaning of the Act? 29 Pursuant to s.4(1) of the Act, "disability" is defined as: "(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour." 30 Section 49A of the Act provides: "A reference in this Part to a person's disability is a reference to a disability: (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability)." 31 We note that Counsel for both parties were content for the Tribunal to rely on the description of paedophilia set out in the American Psychiatric Association's Manual entitled 'Diagnostic and Statistical Manual of Mental Disorders', 4th Edition 1994 ("DSM-IV"). DSM-IV is a standardised manual used for diagnostic purposes in Australia by Members and Fellows of the Royal Australian and New Zealand College of Psychiatrists. The following description of paedophilia appears in DSM-IV: "The paraphiliac Paraphiliac conditions include paedophilia, exhibitionism, voyeurism, fetishism, sexual masochism and sexual sadism. Each condition has a different focus but involves recurrent intense sexually arousing fantasies, sexual urges or behaviours that occur over a period of at least 6 months. focus of paedophilia involves sexual activity with a prepubescent child (generally age 13 years and younger). . . Individuals with paedophilia generally report an attraction to children of a particular age range. Some individuals prefer males, others females, and some are aroused by both males and females. Those attracted to females usually prefer 8 to 10 year olds, whereas those attracted to males usually prefer slightly older children." (at p. 527) 32 The diagnostic criteria for paedophilia are said to be: "A. Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviours involving sexual activity with a prepubescent child or children (generally age 13 years or younger). B. The fantasies, sexual urges or behaviours cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. C. The person is at least 16 years and at least 5 years older than the child or children in Criterion A." (at p. 528 of DSM-IV) 33 Given the scope of s. 4(1)(e), it may well be that Ms Brus' concession was properly made and that paedophilia is a disability within the meaning of the Act. However, we have not had the benefit of appropriate expert evidence on the matter nor of detailed legal submissions. In these circumstances, and in view of the concession made by Ms Brus, it is neither necessary nor appropriate to reach a concluded view on the issue. Should protection be precluded on public policy grounds? 34 We now turn to discuss the vexed issue of whether we should dismiss the paedophilia complaint for the reasons advanced by the Commission. 35 The Commission pointed out that the Crimes Act, 1900 (NSW) provides heavy penalties for persons who engage in sexual activities with a young person of a certain age. For example, s. 66(A) provides that any person who has sexual intercourse with another person who is under the age of 10 years shall be liable to penal servitude for 20 years. (See also ss. 66(B), (C), and (D).) 36 The Commission also drew attention to the Child Protection (Prohibited Employment) Act 1998 which precludes persons convicted of certain sexual activities or acts of indecency from undertaking employment in specific workplaces where children may be located, such as schools and childcare centres. 37 The Commission submits that since the condition of paedophilia may, depending on the circumstances, amount to a crime, it would be contrary to public policy to provide a person in the position of the Applicant with a remedy under the Act. There is no authority to support the proposition that the category "for any other reason" (which appears in s. 111(1) of the Act) includes a public policy consideration of this nature. Although we express no concluded view, even assuming that it does include such a consideration, the Commission's argument contains a fundamental flaw. It assumes that the Applicant has the condition of paedophilia. This is not conceded by the Applicant and has not been established on the material currently before the Tribunal. Accordingly, we do not accept the Commission's submission on this point. 38 The Commission also relies on the provisions of s. 54(1) of the Act to support its contention that the Tribunal should accede to its application. 39 Relevantly, s. 54(1) of the Act provides: "Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of: (a) any other Act, whether passed before or after this Act, (b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act, (c) an order of the Tribunal, (d) an order of any court, not including an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment." 40 In view of what has already been said, it is difficult to see how this provision has any relevance to the present application. Conclusion 41 Accordingly, we dismiss the Commission's application. Orders (1) The s.111(1) application be dismissed. (2) The matter be listed for a case conference on 19 October 2000 at 9:30am.