Equal Opportunity Tribunal of New South Wales CITATION: Lancaster -V- Vice Chancellor, Macquarie University [1996] NSWEOT COMPLAINANT: Ms Judith Lancaster RESPONDENT: Vice Chancellor, Macquarie University NUMBER: 134 of 1995 Mr. Peter King ( Judicial Member ) TRIBUNAL: Ms. Merilyn Alt Ms. Laura Mooney GROUNDS OF COMPLAINT: Sex Discrimination DATES OF HEARING: 09/18/1996 DATE OF JUDGMENT: 09/18/1996 Complainant: Ms. M Bateman (Counsel) LEGAL REPRESENTATIVES: Respondent: Minter Ellison (Solicitors) Ms. J Oakley (Counsel) JUDGMENT IN FAVOUR OF: In this matter the Respondent has brought an application pursuant to s.111 of the Anti-Discrimination Act (1977) seeking an order dismissing the complaint. The complaint, which is set out in detail in a commendably and clearly pleaded document entitled Amended Points of Claim together with a Schedule of Further Amendments, relies upon the ground of sexual discrimination pursuant to s.24 of the Anti-Discrimination Act (1977) as it then applied as the ground of unlawful conduct. It is firstly put by the Respondent that certain matters in paragraph 8 of the Points of Claim as Amended, have been raised which were not the subject of the reference by the Anti-Discrimination Board so that the Tribunal lacks jurisdiction in respect of them, and that having regard to the fact that the incidents referred to relate to matters occurring as long ago as 1983 during legal studies at Macquarie University undertaken by the Complainant, that it would be inappropriate to deal with the matters in these proceedings now, for example, by adjournment and reference back. The Complainant stated that these allegations were relied upon in support of her claim of indirect discrimination and not as a separate matter. Jurisdictional points of this kind, if pursued, can be dealt with by reference back to the Board of those specific matters and if the Board so chooses then a referral back to us so that the matter can be properly determined. However, the argument before us proceeded on the basis that the critical questions were whether or not the allegations, assuming they were proven, as particularised and pleaded in paragraphs 13 and 14, made out the case of indirect discrimination. If so, then the course to which we have just referred could be ordered. The question arises, therefore, whether or not the case particularised in paragraphs 13 and 14 of the amended Points of Claim is capable of giving rise to indirect discrimination within the meaning of the Act. In that regard, we have taken into account everything that has been said by Ms. Bateman in favour of the Complainant and we proceed on the basis that the allegations pleaded in the Further Amended Points of Claim are made out. In coming to our determination we respectfully adopt and apply the observations of the High Court in dealing with matters of this type in General Steel Industries -v- Commission of Railways (1964) 112 CLR 125 and especially at page 129, and the further observations of Sir Ronald Wilson in Assall -v- The Department of Health Housing and Community Services (1993) EOC 92-409. What is put by the Complainant is that the adoption of the criterion of exceptional academic merit which it is agreed by both parties was the basis or condition and requirement upon which the Complainant's entitlement to be awarded the medal was assessed by the Medals Committee, had the result that in its implementation the Complainant was discriminated against indirectly. Subsection 3 of s.24 provides that a person discriminates against another person on the ground of sex if the person requires the other person to comply with the requirement or condition: 1. with which a substantially higher portion of persons of the opposite sex to the sex of the other person comply or are able to comply; 2. which is not reasonable having regard to the circumstances of the case; and 3. with which the other person does not or is not able to comply. We assume for the purpose of this application that, as put on behalf of the Complainant, more male students than female students did comply with the requirement of exceptional academic merit during the relevant period and that no female student has been awarded the University Medal in law at this University. The question is whether or not, in the implementation of the condition or requirement of exceptional academic merit, the factors relied upon, especially as identified in paragraph 14 and in particular sub-paragraph (c) were unreasonable, having regard to the particularised circumstances of the case. The first circumstance is the regard paid by the Medals Committee to the raw number of A's. It was suggested that grade point averages rather than the raw number of A's would have been a more gender neutral criterion. There is no doubt as suggested in the evidence and having regard to the fact that only four medals had been awarded in the period 1988 to 1995 that the University has been parsimonious in the award of medals in law, to use the observations of the then Chancellor that are referred to in a letter annexed in one of the affidavits. That, in our view does not mean the University has discriminated against the Complainant; the fact is that whilst younger males may, and we accept this, have been more likely to have obtained a greater number of A's than persons in the position of the Complainant, that does not necessarily mean, in the implementation of the condition or requirement, the Complainant has been discriminated against on the ground of sex. Young female students, for example, who did not have the same responsibilities as the Complainant, a more mature student, and who had greater time available to them than did the Complainant, cannot be said to have been in a position where they could not have obtained the same raw number of A's as the young male students. It was not argued that women are less capable law students than men. A further consideration in the implementation of the criterion or condition is alleged to be that men were more likely to study subjects in which prizes are offered and have greater success in subject in which prizes are offered, than women. However, it seems to us that the question as to whether or not one takes a course in which a prize is offered is a matter of choice, both of benefactors and students, and that it could not be said that younger women, for example, rather than younger men, are more or less likely to choose such courses. It is possible that persons with less time available to them for one reason or another, because of personal or family responsibilities, or because they have a second job outside the University, may be more likely to take subjects which do not offer prizes because of the lower requirements of time and industry involved to achieve academic excellence. However, it is unnecessary for us to consider matters of that type, except to observe that this circumstance is a matter of personal choice and not unreasonable or an indication of sex discrimination. As to the general medal candidacy standard, it is said that women are more likely to have greater emotional physical and time demands upon them than men during the completion of the requirements of the Degree of Bachelor of Laws. We consider that to be at best, a thin consideration and that the particular circumstances of individuals, whether they are male or female, would give rise to these sorts of demands depending on individual circumstances without regard to sex. A further consideration of unreasonableness, it was submitted, is that male potential university medallists are more likely to receive accurate assessments of their academic achievement by the Medals Committee due to the requirement that full written reports of considerations made by the Medals Committee are provided and submitted to the Academic Board or Senate only for nominees recommended to receive the award of the University Medal. Little reliance was placed upon this consideration in the argument, but we do take it into account, yet we can see no sensible basis in the evidence or in submissions upon which it can be suggested that such a circumstance has occurred in this case, or is even likely to have occurred. It should be recalled in this case, the Law School recommended that the Complainant, Ms. Lancaster receive the University Medal. The relevant Academic Board effectively deciding the question and to whom that recommendation was made, comprising, as we are informed, two females and two males at the relevant time, simply refused to accept that recommendation. As a result the University Senate did not award a University Medal in law in that year, that is 1990, at all. In these circumstances, and notwithstanding the arguments put forward by Ms. Bateman, who said everything that could possibly have been said in favour of the Complainant in this matter, we have come to the view, and are satisfied, that the complaint is one which falls within ss. 1 of s. 111 on the grounds that it is misconceived and lacking in substance and that it ought to be dismissed. For those reasons, the Tribunal does dismiss the complaint. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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