Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Peters v The University of Sydney [2015] NSWCATAD 238 Hearing dates: 12 March 2015, 9 April 2015 (submissions closed) Date of orders: 17 November 2015 Decision date: 17 November 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: J Wakefield, Senior Member B Field, General Member M O'Halloran, General Member Decision: 1. The complaints of unlawful direct and indirect discrimination on the ground of race in the provision of education are dismissed. 2. Any application for costs to be dealt with in accordance with the directions given at paragraph 203 of the Reasons for Decision. Catchwords: Administrative Law – Civil and Administrative Tribunal (NSW) – Administrative and Equal Opportunity Division – discrimination – on grounds of race – education – direct discrimination – comparator – differential treatment – same circumstances or circumstances which are not materially different - causation – indirect discrimination – requirement or condition – s 54(1)(a) Anti-Discrimination Act - exception – mandatory and specific requirements Legislation Cited: Education Services for Overseas Students Act 2000 (Cth) Higher Education Support Act 2003 (Cth) Migration Act 1958 (Cth) Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) University of Sydney (Amendment Act) Rule 1999 (as amended) Cases Cited: AEQ v Department of Education & Communities [2011] NSWADT 194 Amery & Ors v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404 Australian Iron & Steel Pty Ltd v Banovic and Others (1989) 168 CLR 165 Chi v Technical and Further Education Commission (No 2) [2013] NSWCA 15 Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 Commissioner of Fire Brigades (NSW) v Lavery [2005] NSWSC 268 Deerubbin Local Aboriginal Land Council v Hunter [2012] NSWADTAP 15 Deri v Border Studies, Teaching and Educational Standards [2015] NSWCATAD 120 Dharmalingham v Western NSW Local Health District [2015] NSWCATAD 74 Faulkner v ACE Insurance Ltd [2011] NSWADT 36 Green v Department of Family and Community Services [2013] NSWADT 193 Haines v Leves (1987) 8 NSWLR 442 Hollows v Macquarie University [2009] NSWADT 23 McKellar v Bourke Bowling Club Ltd [2015] NSWCATAD 161 Nicholls and Nicholls v Director General Department of Education and Training (No. 2) [2009] NSWADTAP 20 Purvis v State of New South Wales (2003) 217 CLR 92 State of New South Wales v Amery (2006) 230 CLR 174 Sydney University Postgraduate Representative Association (SUPRA) & Ors v Minister for Transport Services & Ors [2006] NSWADT 83 Terence Lavery v Commissioner of Fire Brigades [2003] NSWADT 93 Trevanion v Wyangala Country Club Ltd (No 2) [2013] NSWADT 27 Waters v Public Transport Corporation (1991) 173 CLR 349 Whiteoak v State of New South Wales [2014] NSWCATAD 45 Wright v Commissioner of Police [2014] NSWCATAP 67 Wright v Commissioner of Police, NSW Police Force [2014] NSWCATAD 16 Texts Cited: Nil Category: Principal judgment Parties: C C Peters (Applicant) University of Sydney (Respondent) Representation: Counsel: K Nomchong SC (Applicant) K Eastman SC (Respondent) (Submissions) Solicitors: Peters Linnette (Lawyers) (Applicant) S Heesom (Respondent) File Number(s): 1410463 Publication restriction: Nil REASONS FOR DECISION Introduction 1. In these proceedings Ms Peters alleges that she has been directly and indirectly discriminated against on the grounds of race in the provision of education by the University of Sydney (University). For the reasons which follow the Tribunal has determined that the complaints are not made out. Directions are made for any application for costs. History of the matter before the Tribunal 1. On 23 January 2014, Ms Peters lodged a complaint with the Anti-Discrimination Board alleging against the University discrimination on the grounds of race in the provision of education and against the Universities Admission Centre (NSW & ACT) Pty Ltd (UAC) discrimination in the provision of services. 2. On 25 August 2014, the President of the Anti-Discrimination Board referred the complaint to the Tribunal pursuant to s 93(C) of the Anti-Discrimination Act 1977 (NSW) (the Act). The President filed with the Tribunal the President's Summary of Complaint and the President's Bundle. The complaint was categorised as race discrimination in the provision of services and education in breach of ss 7, 17, 19 and 53 of the Act. The claims were for direct and indirect discrimination. 0020The University relied upon the exception in s 54 of the Act. The period of the complaint was from 16 to 23 January 2014. 3. On 7 November 2014, Ms Peters filed with the Tribunal her Points of Claim and her affidavit affirmed on 5 November. She also gave notice that she was discontinuing as against the Second Respondent, UAC. The University filed Points of Defence on 3 December 2014 together with a statement of Ms Kate Wylie made on 2 December 2014. 4. The matter proceeded to hearing on 12 March 2015. At the commencement of the hearing the members of the Panel disclosed that each was a graduate of the University of Sydney. The representatives of the parties advised that this gave rise to no issue on behalf of their respective clients. 5. During the course of the hearing the Tribunal received written submissions from Ms Peters. At the conclusion of the hearing the following directions were made: 1. The Respondent to file and serve submissions in reply on or before 26 March 2015. 2. The Applicant to file and serve submissions in reply on or before 9 April 2015. 3. The parties' submissions were received in accordance with those directions. Ms Peters' claims 1. Ms Peters was born on 14 July 1994 in Sydney, Australia, is an Australian citizen and the holder of an Australian and no other passport. She was schooled in Australia until December 2010 when she relocated temporarily to the United Kingdom with her family. Between September 2011 and September 2013, Ms Peters continued her secondary schooling in the United Kingdom and undertook three General Certificate of Education Advanced Level (GCE A-Levels) subjects being English Literature, Religious Studies and Politics at d'Overbroeck's Sixth Form College in Oxford, UK. 2. Ms Peters claims that in or about January 2013 she was informed by the University's website as to the GCE A-Level results required for admission to the combined Arts/Law degree at the University of Sydney. She said that a person with English secondary school qualifications would be required to achieve 14 points to gain entry to that degree course. She was also advised that an A grade A-Level equated to 5 points and a B grade equated to 4 points. She says that the website did not disclose that a differential approach would be applied to Australian citizens holding English secondary qualifications. 3. On completion of her studies, Ms Peters was awarded two A grade results being for English Literature and Religious Studies and one B grade result for Politics. She says that these results equated to 14 points. In or about November 2013, Ms Peters made an application for entry to the combined Arts/Law degree at the University. 4. Ms Peters claims that the University of Sydney had made arrangements that all applications by Australian citizens for admission to its undergraduate courses including the combined Arts/Law degree be processed by the UAC irrespective of whether the person had achieved Australian or overseas secondary qualifications. 5. She claims that in or about January 2014, UAC processed her application, inter alia, by converting her results to an Australian Tertiary Admission Rank (ATAR) of 80.00 and that the University acquiesced to and adopted the conversion methodology and processing of Ms Peters' admission application by UAC. 6. On 16 January 2014, Ms Peters was informed by UAC that her application for admission to the combined Arts/Law degree had been unsuccessful. In doing so, she claims that the University had determined that an Australian citizen must have achieved a minimum ATAR of 99.7 to be accepted into the course for which her ATAR of 80.00 was insufficient. 7. Ms Peters says that by reason of these matters the University has treated her less favourably on the ground of race than it would have treated a person of different race in circumstances that were not materially different. She says that the less favourable treatment was the University's refusal or failure to accept her application for admission on the basis of her results where it would have accepted a non-Australian's application if they had had the same results. She says that in the alternative she was treated less favourably by being subject to a term imposed by the University in an application for admission which was not a term applied to non-Australian citizens. That term was that her application be processed by UAC, where such processing involved the conversion of her results into an ATAR using a methodology approved or acquiesced to by the University and after which her results must achieve an ATAR of at least 99.7 for entry to the course. 8. Ms Peters says this less favourable treatment was afforded to her because she was an Australian citizen and that by reason of this she was directly discriminated against on the grounds of her race within the meaning of s 7(1)(a) of the Act in breach of s 17(1)(a) and/or (b) of the Act. 9. In the alternative to her claim for direct discrimination, Ms Peters says that the University required her to comply with a requirement or condition with which she was not able to comply, with which a substantially higher proportion of persons not of her race were able to comply and which was not reasonable having regard to the circumstances of the case. She says that this condition was that in order to obtain admission into the combined Arts/Law degree on the basis of having completed GCE A-Levels and obtaining a numerical result of 14, Ms Peters must be a non-Australian citizen. 10. Ms Peters says that due to her race she was unable to comply with that condition because she was an Australian citizen, where a higher proportion of persons not of her race, that is, non-Australian citizens were able to comply. By reason of these matters she says that she had been indirectly discriminated against on the ground of race within the meaning of s 7(1)(c) of the Act in breach of s 17(1)(a) and/or (b) of the Act. 11. Ms Peters seeks orders pursuant to s 108(1)(b) of the Act that the complaint be substantiated and pursuant to s 108(2)(b) that the University admit her to the combined Arts/Law course. The University's response 1. In very general terms, the University agrees that by reason of its obligation to comply with Commonwealth Legislation governing fees for domestic students and overseas students a domestic applicant requires a higher score than an overseas applicant in the GCE A-Levels to receive an offer of admission to the Bachelor of Arts/Bachelor of Laws. It agrees that it treated Ms Peters as an Australian citizen differently from applicants who were not Australian citizens (or permanent visa holders or New Zealand citizens). The University however denies that Ms Peters' circumstances were the same as or not materially different to the circumstances of a person of a different race. 2. The University says that applications from domestic applicants for admission to the Bachelor of Arts/Bachelor of Laws are governed by the legislative regime established under the Higher Education Support Act 2003 (Cth) (HESA). It says that Universities receive the majority of their public funding through schemes administered in accordance with HESA including the Commonwealth Grants Scheme. The Commonwealth Grants Scheme provides funding to eligible higher education providers including the University for eligible students, including Ms Peters, to enrol in Bachelor courses and other courses designated by the Minister of Education. Under the Commonwealth Grants Scheme the Government subsidises a place by paying part of the fees for the place directly to the higher education provider. This is a "Commonwealth supported place". The student pays the remainder of the fees to the higher education provider through a student contribution amount. Commonwealth supported places are only available to Australian citizens, New Zealand citizens and holders of permanent visas. Such students are known as domestic students. It says that Australian citizens must be admitted to the Commonwealth supported places in Bachelor courses. Full fee paying places for domestic students enrolled in Bachelor courses were abolished by the Commonwealth Government in 2009. 3. The University says that in contrast, applications from overseas students for admission to the Bachelor of Arts/Bachelor of Laws are governed by the legislative regime established under the Education Services for Overseas Students Act 2000 (Cth) (ESOS). Overseas students are those who visit Australia on a student visa. HESA and the Higher Education Provider Guidelines 2012 requires higher education providers to charge overseas students full fees for Bachelor courses. 4. The University says that higher education providers establish their own criteria for admission to Bachelor courses. In accordance with its delegated legislation, the University sets admissions standards that are applied consistently to domestic and overseas applicants. Market forces dictate the minimum rankings for admissions. 5. The University denies that it discriminated against Ms Peters either by refusing or failing to accept her application for admission to the Bachelor of Arts/Bachelor of Laws or in the terms in which it was prepared to admit her to that course. The University also denies that it indirectly discriminated against Ms Peters. The University relies on s 54(1)(a) of the Act. It says that it is required by the legislative regimes established by the Commonwealth Government under HESA and ESOS to treat domestic undergraduate applicants differently from overseas undergraduate applicants. 6. The University says that Ms Peters was a domestic undergraduate applicant for admission to the program. She was unsuccessful in obtaining a domestic Commonwealth supported place in that program because she was not ranked highly enough relative to other domestic students to receive an offer. 7. The University says that the complaint should be dismissed in whole. It further says that the Tribunal's power under s 108 of the Act does not extend to the relief sought by Ms Peters. 8. The University lastly says that there is a public interest in preserving a fair and transparent admission process which is consistently applied to all applicants for admission to its courses. It says that it would be inequitable for the Tribunal to order it to treat Ms Peters differently to other applicants for admission to the program in 2014, particularly other domestic applicants with GCE A-Level results. Evidence before the Tribunal 1. There was before the Tribunal the President's Summary and President's Bundle together with Ms Peters' affidavit affirmed on 5 November 214 and the statement of Ms Kate Wylie dated 2 December 2014. 2. Ms Wylie, is the Director of Admissions at the University of Sydney having been appointed to that role in September 2013. She has previously been Head of High Volume Processes at the University of Sydney, Director of Student Recruitment and Admissions at Manchester Metropolitan University, UK and Deputy Director of Student Recruitment and Admissions at the University of Warwick, UK. She is responsible at the University for the global strategic direction and leadership for the admission of all students. 3. This material was admitted into evidence without objection and Ms Peters and Ms Wylie were not required for cross examination. 4. Subject to what we say below, we accept the evidence of Ms Peters and Ms Wylie generally. There was some evidence going to factual matters which we have determined were not relevant to the determination of the issues in question. 5. Ms Peters gave evidence that in February 2013 she reviewed the University's website which stated that she would be required as a GCE A-Level student to achieve 14 points to gain entry to the preferred course at the University being the combined Bachelor degree in Arts/Law. The website indicated that an A would equate to 5 points, a B to 4 points and so on. The website did not address her status as anything other than an international student having UK qualifications. The website did not refer to her citizenship. She says that based upon her accumulated school marks her GCE A-Levels of A A B amounted to 14 points thereby entitling her to the Arts/Law program. 6. This was contradicted by Ms Wylie who said that the score of 14 which Ms Peters understood to be the relevant requirement for admission to the combined Bachelor of Arts/Bachelor of Laws with a GCE A-Level qualification was for international undergraduate applicants not domestic undergraduate applicants. Screenshots from the relevant webpages were in evidence. They delineate between pages containing information for domestic undergraduate applicants and information for international undergraduate applicants. At url http://Sydney.edu.au/future-students/international/undergraduate/entry-requirements/recognised-qualifications reference is made to "recognised international secondary qualifications". At url http://Sydney.edu.au/future-students/international/undergraduate/entry-requirements/academic-requirements reference is made to "international undergraduate academic entry requirements" and "international students: academic entry requirements". 7. The website also lists recognised qualifications for domestic undergraduate applicants including relevantly the following comment for GCE A-Levels: "At minimum three full advanced (A2) level subjects in one academic year are required, but four may be needed for admission to very competitive courses. Advanced subsidiary (AS) subjects will not be accepted in place of Advanced (A2) subjects but results in AS subjects may improve the competitiveness of qualified applicants." No reference is made to a score of "14". 1. On the basis of this material, we are satisfied that Ms Peters was in error in believing that the webpage she reviewed in February 2013 applied to domestic students with overseas qualifications. 2. Ms Peters gave evidence that after receiving notification of her grades in June 2013 she was advised by her Politics teacher that she was two marks short of an "A" grade. She said she received 318 out of 400 marks where 320 was an "A" grade. In September 2013 she received a written reference from the Head of Sixth Form of d'Ovebroeck's College attesting to her academic capability. Ms Peters submitted that the reference has some importance as it referred to her achievements in public exams in January 2013. It was included in her GCE A-Level certificates in support of her application for admission to the University. There was however no material before us to establish the reference's relevance to the matters which we have had to determine in the proceedings including whether submission of the reference to UAC was required upon her application or should have been taken into account by UAC. There was in any event evidence that UAC only had regard to her final results in her application. We have disregarded the reference accordingly. 3. Ms Peters says that the UAC converted her GCE A-Levels to an ATAR. The University says that the UAC calculates ATAR for students sitting in the New South Wales Higher Certificate who satisfy ATAR eligibility requirements. Applicants with overseas qualifications who are comparable to an Australian qualification receive a UAC rank not an ATAR. The University does concede that for the purposes of Ms Peters' application for admission her UAC rank was treated as an equivalent to ATAR. Her UAC rank was 80.00. Accordingly, nothing relevantly turns on the distinction. The University does not contest that in about January 2014 that UAC rank processed Ms Peters' application by converting her result to a UAC of 80.00 and that it acquiesced to and adopted the conversion methodology and processed the Applicant's admission application by UAC. 4. Subject to these matters we have accepted Ms Peters' evidence as to the factual matters to which we have referred in setting out the nature of her claims. 5. We have referred to Ms Wylie's evidence in more detail in the course of our reasons. Characterisation of complaint 1. There arose in submissions an issue about the characterisation of Ms Peters' complaint for direct discrimination. In reply the University submitted that it was Ms Peters' complaint that the University's refusal to offer her a place in the course was discriminatory because she was treated in the same way as all Australian citizens and that she should have been treated in the same way as non-Australian citizens, in particular an English citizen. It was said that the sole basis for this contention was the fact that she applied for admission to the Bachelor of Arts/Bachelor of Laws course by relying on her GCE A-Level results being a qualification she obtained in England. It was said that Ms Peters claims that she should not have been treated in the same way as all Australian citizens and that rather because she completed her secondary studies in England she should be treated as if she was an English citizen. It was submitted that Ms Peters says that if the University had treated her GCE A-Level results as it would have treated the results of an English citizen she would have been offered a place in the course. It was said that in effect Ms Peters seeks to be treated more favourably than other Australian citizens based solely on the fact that she completed her secondary studies in England and seeks to rely on her GCE A-Levels for admission. 2. Ms Peters submitted that this characterisation (namely that her claim of discrimination is that she was treated the same as all other Australian citizens) is a misstatement of her claim. Ms Peters says that this could not be the case because whilst Australian she was applying for admission on the basis of a UK secondary qualification where the majority of Australian applicants for admission hold Australian secondary qualifications. Ms Peters claims that she was treated less favourably than what she says is the correct comparator being a non-Australian citizen, say a UK citizen, with UK secondary qualifications of GCE A-Levels applying for admission to the course. 3. The matter has proceeded by way of pleadings. Ms Peters pleaded that she was treated less favourably on the grounds of her race by the University than it would have treated a person of a different race in circumstances that were not materially different by reason of its failure or refusal to accept her application and the imposition of a term that the application be processed by UAC. 4. By its pleading and in its submissions the University agrees that to receive an offer of admission a domestic applicant for admission to an undergraduate Commonwealth supported place in the University's program in 2014 required higher grade results in the GCE A-Levels than an international applicant for admission to an international fee paying place in the same program. The University expressly agrees that to this extent it treated Ms Peters as an Australian citizen and thereby a domestic applicant differently to overseas/international applicants for the purposes of s 7(1)(a) of the Act. The Tribunal has considered and proceeded to determine Ms Peters' claims on the basis of the matters as pleaded. 5. Although relying on s 17(1)(a) and/or (b) of the Act in submissions, senior counsel for Ms Peters indicated that she also "calls in aid" s 17(2)(a) of the Act asserting that the refusal to accept Ms Peters' application for admission in to the combined Bachelor of Arts/Bachelor of Laws course also amounted to a denial of access to that course. This was not pleaded and it would be a denial of procedural fairness to the University to allow it to be introduced in the course of submissions after the matter had been heard where the University has not been given an opportunity to respond. We have restricted our consideration to the matters pleaded. Relevant statutory provisions 1. The Anti-Discrimination Act relevantly provides as follows: "4 Definitions "educational authority" means a person or body administering a school, college, university or other institution at which education or training is provided. "race" includes colour, nationality, descent and ethnic, ethno-religious or national origin." "4A Act done because of unlawful discrimination and for other reasons If: (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason." "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." "17 Education (1) It is unlawful for an educational authority to discriminate against a person on the ground of race: (a) by refusing or failing to accept the person's application for admission as a student, or (b) in the terms on which it is prepared to admit the person as a student. (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. (3) Nothing in this section applies to or in respect of a prescribed educational authority in relation to such circumstances, if any, as may be prescribed." "54 Acts done under statutory authority (1) 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, or (3) Except as provided in this section, this Act has effect notwithstanding anything contained in: (c1) the Co-operatives (Adoption of National Law) Act 2012 and the Co-operatives National Law (NSW), (f) the Registered Clubs Act 1976, or any instrument of whatever nature made or approved thereunder." "108 Order or other decision of Tribunal (1) In proceedings relating to a complaint, the Tribunal may: (a) dismiss the complaint in whole or in part, or (b) find the complaint substantiated in whole or in part. (2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following: (a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, (b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, (c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, (d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both), (e) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination, (f) make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations, (g) decline to take any further action in the matter. (3) An order of the Tribunal may extend to conduct of the respondent that affects persons other than the complainant or complainants if the Tribunal, having regard to the circumstances of the case, considers that such an extension is appropriate. (4) The power of the Tribunal to award damages to a complainant is taken, in the case of a complaint lodged by a representative body, to be a power to award damages to the person or persons on behalf of whom the complaint is made and not to include a power to award damages to the representative body. (5) In making an order for damages concerning a complaint made on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons. (6) If two or more vilification complaints are made in respect of the same public act of the respondent and those complaints are found to be substantiated in whole or in part, the Tribunal must not make an order or orders for damages that would cause the respondent to pay more than $100,000 in the aggregate in respect of that public act. (7) If the Tribunal makes an order under subsection (2) (b), (c), (d) or (e), it may also order that, in default of compliance with the order within the time specified by the Tribunal, the respondent is to pay the complainant damages not exceeding $100,000 by way of compensation for failure to comply with the order." Onus and standard of proof 1. In order to substantiate her complaint of direct race discrimination Ms Peters must establish that: 1. She is a member of a race as defined in s 4 of the Act. 2. The University is an educational authority. 3. The University treated her less favourably in the same circumstances or in circumstances which were not materially different than it treated or would have treated a person of a different race: 1. by refusing or failing to accept the person's application for admission as a student; or 2. in the terms in which it is prepared to admit the person as a student. 1. At least one of the reasons for that treatment was Ms Peters' race. 1. In order to prove indirect discrimination, Ms Peters must establish that: 1. The University required her to comply with a requirement or condition; 2. A substantially higher proportion of persons who were not Australian comply or are able to comply with the requirements; 3. The requirement is not reasonable having regard to the circumstances of the case; 4. She was unable to comply with that condition. 1. Ms Peters bears the onus of proof in establishing the elements of both direct and indirect discrimination including in respect of indirect discrimination that the alleged requirement or condition was not reasonable; Deerubbin Local Aboriginal Land Council v Hunter [2012] NSWADTAP 15 at [38], Wright v Commissioner of Police [2014] NSWCATAP 67 at [24] and Amery & Ors v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404. The onus is the civil standard; Dharmalingham v Western NSW Local Health District [2015] NSWCATAD 74 at [138] to [140]. The elements of the application must be established to the satisfaction of the Tribunal; Wright at [24]. The University bears the onus of establishing any exception or defence including its reliance on s 54 of the Act; see s 104 of the Act; Deerubbin Local Aboriginal Lane Council at [38]. Is Citizenship an aspect of race? 1. Race is defined in s 4 of the Act to include nationality; see also Whiteoak v State of New South Wales [2014] NSWCATAD 45 at [50]. There was no issue between the parties that Ms Peters' Australian citizenship constitutes race for the purposes of s 4 of the Act. Is the University an educational authority? 1. The University pleaded that it was at all material times and continues to be an educational authority within the meaning of s 4 of the Act. There was no issue between the parties about this and we conclude that it was. The claim for unlawful direct discrimination 1. There are two elements of direct discrimination; differential treatment and causation. The first element will be determined by whether Ms Peters has been treated objectively less favourably than a person who is not of her race in circumstance which are the same or not materially different. The second will be determined by whether such differential treatment was on the ground of her race; Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 at [46] – [47]. 2. Differential treatment should be considered before causation because if there is no relevant differential treatment it is unnecessary to consider the issue of causation; Aldridge at [45]. Motive is irrelevant if there is differential treatment resulting in detriment to the person affected; Haines v Leves (1987) 8 NSWLR 442 at [471] per Kirby P. 3. How consideration of differential treatment should proceed was considered by the New South Wales Court of Appeal in Chi v Technical and Further Education Commission (No 2) [2013] NSWCA 15 which said at [11]: "11 Every question whether conduct (actual, assumed, alleged or hypothesised) amounts to discrimination 'on the ground of' some characteristic necessitates a process of comparison. Discrimination entails differentiation. It is necessary to compare the treatment afforded to the person allegedly discriminated against with the treatment afforded (or that would be afforded) to some other person or persons; and to determine whether the particular characteristic was the source of reason for any differentiation established by the process of comparison." 1. In order to undertake the comparison to determine whether differential treatment has occurred it is necessary to identify a comparator. There is no evidence of an actual comparator before us. The Tribunal must accordingly undertake the comparison by reference to a hypothetical comparator; see Wright v Commissioner of Police, NSW Police Force [2014] NSWCATAD 16 at [157]. 2. Where there is a hypothetical comparator, separate and sequential treatment of the two elements of direct discrimination is made more difficult for the purposes of assessing differential treatment. The Tribunal observed in Hollows v Macquarie University [2009] NSWADT 23 at [14]: "14 That approach is logical where there is an actual comparator because the differential treatment question can be answered objectively based on the evidence of how the actual comparator was treated. However when the comparator is a hypothetical person the differential treatment question and the causation question amount to a single question, namely why was the person treated in the way that they were treated (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UK HL 11; [2003] to ALL ER 26 at [7] and [8] and Dutt v Central Area Health Service 2002 NSWADT 133)." 1. The questions of "differential treatment" and "causation" are considered as part of the same exercise. As it was put recently in McKellar v Bourke Bowling Club Ltd [2015] NSWCATAD 161 at [72]: "72 … the Tribunal can only reach the conclusion that the respondent treated the applicant less favourably than a hypothetical person not of the applicant's race, by determining that the applicant's race was the reason for the treatment." 1. How that task is undertaken was considered by the Appeal Panel in Wright. Referring to a statement by the Tribunal at first instance that: "When there is no actual comparator, the differential treatment and causation requirements merge …" the Appeal Panel said at [116]: "116 In this comment the Tribunal is referring to a logical conundrum that arises in dealing with direct discrimination complaints. If a proscribed consideration is a factor in the decision making process that will also supply the differential treatment factor for the comparison involving the same or similar circumstances." 1. Referring to the use of the word "merge" the Appeal Panel said at [119] – [20]: "119 … in our view, the Tribunal is making a self-evident point, and is not transporting into Australian anti-discrimination law a perspective that derives from the different statutory approach taken in the UK law. There will be cases where once the question is answered as to the factors that lead to the conduct in issue, the answer to the differential treatment question will be obvious. There will be other cases where the conduct appears, on its face, to be discriminatory, but a closer exploration reveals that the only factors taken into account were lawful ones, and therefore the circumstances more fully understood lead to the differential treatment test not being satisfied. 120 The use of the word 'merge' ought, perhaps, be avoided, in explaining this point. There are two separate matters (causation, and differential treatment), but often the finding in relation to causation will mean that only one answer can be given on differential treatment." Accordingly, we will firstly consider the question of causation. 1. In order to establish causation under s 7(1) of the Act, Ms Peters will need to satisfy the Tribunal that the treatment complained of occurred "on the ground of" her race. The test for causation in the context of anti-discrimination legislation was considered by the High Court in Purvis v State of New South Wales (2003) 217 CLR 92. The question is why the aggrieved person was treated as they were. The focus is on the "true basis" (per Gleeson CJ at [102]), "genuine basis" (Gleeson CJ at [102]), or the "real reason" (McHugh and Kirby JJ at [144]) for that treatment. The question to be asked was discussed in Nicholls and Nicholls v Director General Department of Education and Training (No 2) [2009] NSWADTAP 20 where the Tribunal said at [28]: "28 The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person's sex, race, disability, etc (including the extended definitions of those grounds) is at least one of the 'real', 'genuine' or 'true' reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment." See also Trevanion v Wyangala Country Club Ltd (No 2) [2013] NSWADT 27 at [53] to [55]. 1. Causation might be established either by direct evidence or evidence from which it can be inferred; AEQ v Department of Education & Communities [2011] NSWADT 194 at [30]. 2. Ms Peters gave evidence that she was informed by a UAC officer that her GCE A-Level results were converted to 14 points and that this score had been supplied to the University of Sydney upon her application for entry to the University through UAC. She said that she also had a conversation with an admissions officer at the University who said words to the effect of: "As an Australian citizen, 14 points was insufficient to gain entry to combined Arts/Law but had you been an English citizen then your A A B grade would have gained you entry into combined Arts/Law." 1. Section 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW) provides that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. Accordingly we have had regard to this material notwithstanding that it would ordinarily be admissible under Section 59(1) of the Evidence Act 1995 (NSW). This evidence was neither contested nor contradicted. 2. There was no issue between the parties about the nature of the treatment Ms Peters received. Ms Peters has pleaded that the less favourable treatment which she received was both by way of a refusal to admit and as to a term on which the University was prepared to admit her to the combined Arts/Law degree. As to the first she says that the University refused or failed to accept her application on the basis of her results where it would have accepted a non-Australian citizen's application if that had the same result. As to the second and in the alternative she says that the University imposed a term on her application for admission that: 1. It be processed by UAC; 2. Where such processing involved the conversion of her results into an ATAR using a methodology acquiesced to by the University; and 3. After which Ms Peters' results (as converted by its agent, UAC) achieved an ATAR of at least 99.7 and that this term was not one applied to non-Australian citizens. 1. The University has agreed that a domestic applicant requires a higher score than an overseas applicant in GCE A-Levels to receive an offer for admission. The University has admitted (subject to the qualification to which we have referred that UAC calculated a UAC rank, rather than an ATAR for overseas qualifications) that UAC processed Ms Peters' application and that the University acquiesced to and adopted the conversion methodology and processing of Ms Peters' application by UAC. There was evidence that applications by non-Australian citizens were not subject to processing by UAC. 2. The evidence to which we have referred is consistent with the University's acknowledgement that a domestic applicant requires a higher entry score than an overseas applicant. The University says that to that extent it treated Ms Peters, as an Australian citizen, differently to applicants who were non-Australian citizens (or permanent visa holders or New Zealand citizens). 3. On the basis of the evidence and this concession, we find that at least one of the "real", "genuine" or "true" reasons for the treatment afforded to Ms Peters was her Australian citizenship. Accordingly we find that the causation element of Ms Peters' claim for direct discrimination is made out. Consideration of less favourable treatment and whether the circumstances are "the same or not materially different" 1. The principle issue between the parties in respect of Ms Peters' claim for direct discrimination is whether or not her treatment occurred in the same circumstances or circumstances which were not materially different to those in which the University treats or would have treated a person of a different race. As we have indicated, Ms Peters has the onus of proof. 2. How the Tribunal should proceed when identifying the relevant circumstances to be taken into account in determining how a person not of Ms Peters' race would have been treated was considered in the context of a disability claim by the Tribunal in Green v Department of Family and Community Services [2013] NSWADT 193 at [89] – [91]. "89 As to the circumstances that must be taken into account, the High Court's decision in Purvis v State of New South Wales (2003) 217 CLR 92 gives some assistance as the language of the Federal statute applicable in that case was not different in presently material respects from the language of the ADA. In that case, Gummow, Hayne and Heydon JJ held at [224]: The circumstances referred to in s 5(1) [relevantly equivalent to s 49B(1)(a) of the ADA] are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and these is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with the person's disability. ... All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or not materially different. 90 Further at [229], their Honours also held that the section equivalent to s 49B(1) (a) "requires comparison with a person without the disability, in the same position in all material respects as the aggrieved person". 91 As the High Court's decision in Purvis made clear at [230], the circumstances that must be taken into account in determining how a person without Ms Green's disability would have been treated do not exclude all of the circumstances that arise out of, or are the effect or consequence of, Ms Green's having a disability. At [230] the High Court held that the construction adopted by the Court: "embraces the importance of identifying (as part of the relevant circumstances) all the effects and consequences of the disability that are manifested to the alleged discriminator. What then is asked is: how would that person treat another in those same circumstances?" 1. The passage in Purvis at [224] was also considered by the Appeal Panel in Deerubbin Local Aboriginal Land Council at [33] which said: "33 Purvis does not stand for the proposition that the individual circumstances of the applicant or the comparator are irrelevant when making the comparison. The test requires that when comparing the treatment that was afforded to the applicant with the treatment that was or would have been afforded to a comparator, the circumstances must be the same or not materially different. Those circumstances are all the objective features which surround the treatment. The objective features include circumstances which relate to the applicant as an individual, such as the fact that he was on the casual register, that he made himself available for work and that his employer had never raised any performance issues with him. If the Tribunal had selected a comparator with different individual circumstances, such as a permanent employee at a higher level who had been disciplined for performance issues, the circumstances would have been materially different." 1. The parties made extensive submissions as to the circumstances which the Tribunal must take into account. We have considered these submissions in light of the principles which we have identified. 2. Ms Peters says that the less favourable treatment under consideration is that the University did not accept her application for admission on the basis of her 14 points under GCE A-Levels whereas it would have done so if she had not been an Australian citizen. She says that that occurred as a result of a discretionary decision by UAC acquiesced to by the University that her GCE A-Levels had to be converted into a UAC rank (using an undisclosed formula) before her application was assessed. When that formula was applied it was then measured against the cut off which the University had determined for itself for entry into the combined Arts/Law course for Australian applicants. 3. Ms Peters says that the University's argument that the less favourable treatment occurred in circumstances which were not the same or materially different because domestic applicants were governed by HESA and a person of a different nationality would have their admission assessed under ESOS is misdirected because the legislation does not give rise to a material difference in the relevant sense. She says that HESA is directed to establishing and regulating higher education providers setting accountability standards for those providers and stipulating the terms and manner in which funding is granted to higher education providers. The legislation she submits says nothing about the admission criteria for the Arts/Law degree or any other degree provided by the University. 4. She says there is nothing in HESA or ESOS that stipulates that admission marks or UAC ranking for those applicants with Australian secondary qualifications be set at any different level than those applicants with overseas secondary qualifications. There is nothing in HESA or ESOS that requires a conversion formula to be applied to citizens making an application for admission on the basis of overseas qualifications so that they might be given a UAC ranking. She relies on Ms Wylie's evidence on the part of the University that higher education providers establish their own criteria for admission and that market forces dictate the minimum ranking for admission. 5. Ms Peters says that HESA and ESOS are directed to funding arrangements for higher education providers and direct the manner in which fees can be charged. Ms Peters says that it is not correct reasoning for the University to argue that because there is a difference in the funding regime and the fee charging structure applicable to Australian citizens occupying Commonwealth supported places and those applicable to overseas students that is the material difference permitting the University to treat Australian citizens less favourably if they apply for admission on the basis of overseas secondary qualifications. 6. Firstly, she says HESA is based upon principles of equity, fairness and merit in the provision of higher education services. Section 2.1(a)(i) of HESA provides: "2-1 Objects of this Act The objects of this Act are: (a) to support a higher education system that: (i) is characterised by quality, diversity and equity of access." 1. Section 19.30 provides: "19-30 Basic requirement A higher education provider must treat fairly: (a) all of its students; and (b) all of the persons seeking to enrol with the provider." 1. Section 19.35(4)(a) provides: "19-35 Benefits and opportunities must be available equally to all students … (4) A higher education provider that receives any payment under section 110-1 on account of amounts of *FEE-HELP assistance for a unit of study must have open, fair and transparent procedures that, in the provider's view, are based on merit for making decisions about: (a) the selection, from among the persons who seek to enrol with the provider in that unit of study, of persons to enrol." 1. Ms Peters says these are the prevailing circumstances in respect of enrolments. The funding regime is not "the circumstances" relevant to determining whether she ought to have been offered a place as matter of fairness, equity or merit. She says that the prerequisite secondary school qualifications for admission are the relevant circumstances. 2. Ms Peters submits that if merit and fairness are mandated by HESA then as the University determined that an overseas student with 14 points under GCE A-Levels could be enrolled in its Arts/Law program then, "axiomatically" it determined that such qualification meant that the notional comparator was academically equipped or had the requisite merit or ability to satisfy the entry level requirements of the course. That merit level or ability does not change simply because the person who achieved it (in this case Ms Peters) was an Australian citizen. 3. Secondly, Ms Peters says there is a fundamental flaw in the University's case because there was no evidence to suggest that the University would as at January 2014 receive less income from an Australian citizen occupying a Commonwealth supported place than it would from a full fee paying student. She relies on Ms Wylie's evidence that the Commonwealth provides a subsidiary and the "remainder" is paid by the student contribution. She says that even if it were a valid proposition that a relevant "circumstance" were that income received by the University from an overseas student was greater than that in respect of an Australian citizen occupying a Commonwealth supported place there is no evidence that such a difference existed in 2014 or continues to exist. Conversely, the evidence is, she says, on the part of Ms Wylie that the University in its discretion sets a higher cut off score for a Commonwealth supported place because demand for such places is higher than for full fee paying places. 4. Thirdly, Ms Peters suggested that the University's argument is predicated on the basis that Australian citizens can only enrol in its courses in a Commonwealth supported place. She says there is no authority for the proposition given in Ms Wylie's evidence that the Government abolished full fee paying places for domestic students doing Bachelor courses in 2009. She says that legislation does not in fact "abolish" full fee paying students. She says that while s 36-30(1) of HESA requires enrolment as a Commonwealth supported place, it is subject to the exception in s 36-30(1)(b) which refers to ss 36-10(3) and (4) of HESA. These sections allow students to "opt out" of the scheme. Accordingly, she says a person can advise that they do not wish to be a Commonwealth supported student. She says that the dual classification and the availability of non-Commonwealth supported places for Australian students is supported by s 169-15 of HESA which draws a distinction between domestic students who are Commonwealth supported students and those who are not with the latter being charged its tuition fee rather than a student contribution. 5. Accordingly, Ms Peters submits that the University could have offered her a Commonwealth supported place on the basis of her GCE A-Level results in an exercise of its discretion as to what marks it would accept for entry into that course. It could have offered her a non-Commonwealth supported place in the combined Arts/Law course on a fee structure which rendered the financial income not materially different to that of a Commonwealth supported place or an overseas place. She says that the key feature is that the University had a discretion to put in place such decisions in order to comply with its statutory obligation to provide equity and fairness. 6. Ms Peters submits that there is no material difference between her circumstances and those of the notional comparator being a non-Australian citizen with the same GCE A-Level results and who made an application for admission to the University's combined Arts/Law degree for the 2014 academic year. 7. The University submits that it had different schemes to determine the admission of students to its Bachelor of Arts/Bachelor of Laws in 2014, one for domestic applicants and one for international/overseas applicants. To receive an offer of admission a domestic applicant to an undergraduate Commonwealth supported place in the Arts/Law program in 2013 required higher grade results in the GCE A-Levels than an international applicant for admission to an international fee paying place in that course. The University says that the treatment afforded to Ms Peters was not less favourable because the circumstances of the treatment were materially different. 8. The University refers to ss 36.30(1) and 36.30(2) of HESA which apply to it as a Table A Provider under s 16-15 of HESA. These sections provide as follows: "16‑15 Table A providers (1) The following are Table A providers: Table A providers Providers … The University of Sydney … (2) However, a body is not a Table A provider if its approval as a higher education provider is revoked or suspended." "36‑30 Providers to enrol persons as Commonwealth supported student Table A providers (1) If: (a) a person is to be enrolled with a *Table A provider in a unit of study; and (aa) the unit to be undertaken with the provider forms part of an *undergraduate course of study; and (b) the provider is not prohibited, under section 36‑10 or section 36‑15, or both, from advising the person that he or she is a *Commonwealth supported student in relation to the unit; the provider must enrol the person in the unit as a Commonwealth supported student. (2) Subsection (1) does not apply in respect of a person's enrolment with a *Table A provider in a unit of study that forms part of an *undergraduate course of study if: (a) the person commences the undergraduate course of study with the provider before 1 January 2009; or (b) both: (i) the person transfers to the undergraduate course of study with the provider on or after 1 January 2009 from another undergraduate course of study in which the person was enrolled with the provider before 1 January 2009; and (ii) the person had not completed that other undergraduate course of study; or (c) all of the following apply: (i) the person was offered, and accepted, a place (other than a Commonwealth supported place) in the undergraduate course of study with the provider before 1 January 2009; (ii) the undergraduate course of study was to commence before 1 January 2009; (iii) with the provider's approval, the person commences the course of study after that time; or (d) at the time the person commences the undergraduate course of study with the provider, the person is an *overseas student. Other higher education providers (3) If a person is to be enrolled, with a higher education provider that is not a *Table A provider, in a unit of study, the provider must enrol the person in the unit as a *Commonwealth supported student if: (a) completion of the unit is in furtherance of a *national priority; and (b) places have been allocated to the provider under section 30‑10 in respect of that national priority for the year in which the person is enrolled in the unit. (4) Subsection (3) does not apply, and is taken never to have applied, in relation to that enrolment if: (a) in respect of the year in which the person is enrolled in the unit, the provider has already filled, or fills, all of the *number of Commonwealth supported places in respect of that *national priority; or (b) the person notifies an *appropriate officer of the provider that he or she does not wish to be a *Commonwealth supported student in relation to the unit. Notices under paragraph (4)(b) (5) A notice under paragraph (4)(b): (a) must be in writing; and (b) must be given on or before the *census date for the unit." 1. The University says and we accept that none of the exceptions in s 36-30(2) of HESA are relevant to Ms Peters and that ss 36.30(3) and 36.30(4) of HESA apply to other higher education providers and not to the University. There was no evidence to the contrary. 2. The University submitted that it was not prohibited under ss 30.10 or 36.15 of HESA from advising Ms Peters that she was a Commonwealth supported student. 3. Section 36.10 of HESA provides as follows: "36‑10 Advice on whether a person is a Commonwealth supported student When a provider must not advise that a person is Commonwealth supported (1) A higher education provider must not advise a person that he or she is a *Commonwealth supported student in relation to a unit of study unless: (a) the provider has entered into a funding agreement under section 30‑25 for the year in which the person is undertaking the unit; and (b) the unit contributes to the requirements of a *course of study in which the person is enrolled with that provider or another higher education provider; and (c) the person meets the citizenship or residency requirements for the purposes of this paragraph (see subsections (2) and (2A)); and (d) the person: (i) enrolled in the unit on or before the *census date for the unit; and (ii) at the end of the census date, remained so enrolled. (2) A person meets the citizenship or residency requirements for the purposes of paragraph (1)(c) if the person is: (a) an Australian citizen; or (b) a citizen of New Zealand who will be resident within Australia for the duration of the unit; or (c) a *permanent visa holder who will be resident within Australia for the duration of the unit. (2A) In determining, for the purposes of subparagraph (2)(b) or (c), whether a person will be resident within Australia for the duration of the unit of study, disregard any period of residence outside Australia if: (a) it cannot reasonably be regarded as indicating an intention to reside outside Australia for the duration of the unit; or (b) it is required for the purpose of completing a requirement of that unit. (2B) Despite subsections (2) and (2A), a person does not meet the citizenship or residency requirements under subsection (2), if the higher education provider reasonably expects that he or she will not undertake in Australia any units of study contributing to the *course of study of which the unit forms a part. Persons who do not wish to be Commonwealth supported (3) A higher education provider must not advise a person that he or she is a *Commonwealth supported student in relation to a unit of study if the person has notified an *appropriate officer of the provider that he or she does not wish to be a Commonwealth supported student in relation to the unit. (4) A notice under subsection (3): (a) must be in writing; and (b) must be given on or before the *census date for the unit. Additional requirement for non‑Table A provider (5) A higher education provider that is not a *Table A provider must not advise a person that he or she is a *Commonwealth supported student in relation to a unit of study unless: (a) the unit in which the person is enrolled is within a *national priority; and (b) the provider has received a grant under this Part for that national priority for the year in which the person is undertaking the unit; and (c) if the national priority is a *course of study that has been specified in the Commonwealth Grant Scheme Guidelines to be a national priority—the unit is contributing to the requirements of that course. Additional requirement relating to work experience in industry (6) A higher education provider must not advise a person that he or she is a *Commonwealth supported student in relation to a unit of study that wholly consists of *work experience in industry unless: (a) the unit forms part of a *course of study; and (b) the person is enrolled, or has previously been enrolled, in another unit of study in that course: (i) that does not, or did not, wholly consist of work experience in industry; and (ii) in relation to which the person is, or was, a Commonwealth supported student. Units of study at full fee summer or winter schools (7) A higher education provider must not advise a person that he or she is a *Commonwealth supported student in relation to a unit of study if: (a) the person undertakes the unit wholly during a summer school period (the current summer school period) or a winter school period (the current winter school period); and (b) the provider has determined that this subsection applies to the unit. (8) A higher education provider may determine that subsection (7) applies to a unit of study only if each person who could undertake the unit during the current summer school period or current winter school period could undertake, or could have undertaken, the unit during a period other than a summer school period or winter school period as part of a *course of study undertaken by the person with the higher education provider. (9) The higher education provider must make the determination: (a) before the start of the current summer school period, if the determination relates to a unit undertaken during a summer school period; or (b) before the start of the current winter school period, if the determination relates to a unit undertaken during a winter school period. (10) In this section: summer school period means a period that starts on or after 1 November in a year and ends after 1 January, but before 1 March, in the following year. winter school period means a period that starts on or after 1 June in a year and ends on or before 31 August in that year." 1. The University says that all of the requirements of s 36-10(1) of HESA were met in respect of Ms Peters' application for admission to a Commonwealth supported place. There is no evidence to the contrary and we accept this submission. 2. Section 36.15 of HESA provides as follows: "36-15 Persons not to be advised they are Commonwealth supported (1) A higher education provider must not advise a person enrolled in a unit of study with the provider that the person is a *Commonwealth supported student in relation to the unit if: (a) the enrolment is in an *employer reserved place; or (b) the unit forms part of a *bridging course for overseas trained professionals; or (c) the unit forms part of a course to which a determination under subsection (2) applies. (2) The Minister may determine in writing that: (a) a specified *course of study is not one in respect of which students, or students of a specified kind, may be enrolled in units of study as *Commonwealth supported students; or (b) a *course of study of a specified type is not one in respect of which students, or students of a specified kind, may be enrolled in units of study as *Commonwealth supported students. (3) In deciding whether to make a determination under subsection (2), the Minister must have regard to the effect of the determination on students undertaking the course, or a course of that type. (4) A determination of the Minister under subsection (2) must not be made later than 6 months before the day that students are able next to commence the specified course, or a course of that type, with the provider. (5) A determination under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901." 1. Section 36.15 of HESA provides a further list of circumstances in which a person must not be advised that they are Commonwealth supported, none of which it was submitted are relevant to Ms Peters. We accept this submission. Ms Peters made no submission to the contrary. 2. The University says and we accept that as the University was not prohibited under ss 36-10 or 36-15 of HESA from advising Ms Peters that she was a Commonwealth supported student it was required by s 36-30(1) to advise her (had she been successful in gaining a place on the Bachelor of Arts/Bachelor of Laws course) that she was a Commonwealth supported student. 3. The University further submitted that it was prohibited from advising overseas/international students that they are Commonwealth supported students if they do not meet the citizenship or residency requirements. It referred to ss 36-10(1)(c) and 36.10(2) of HESA. There was evidence that Commonwealth supported places are only available to Australian citizens, New Zealand citizens and holders of a permanent visa. This submission we also accept. 4. In response to Ms Peters' claim that under ss 36-10(3) and 36-10(4) of HESA, domestic students can "opt out" of the scheme for Commonwealth supported places, the University says that a student can advise if he/she does not wish to be a Commonwealth supported student in relation to a unit of study. This would occur where a student wishes to undertake a unit of study that does not contribute to the course of study in which the student is enrolled under s 36-10(1)(b) of HESA. It says that s 36-10(3) does not give general power to opt out of the scheme prior to application, admission and enrolment in the domestic undergraduate course. Ms Peters says that the University's position is contrary to the words of s 36-10(3) and that it gives no other authority or legislative provision to give rise to the interpretation that HESA does not allow for opting out. It is a matter for Ms Peters to satisfy us as to the interpretation for which she contends. We are not satisfied on the basis of the evidence and the submissions which have been made that a student could "opt out" of the scheme before admission or enrolment in a domestic undergraduate course. We note that Ms Peters did not seek to "opt out" of the scheme and applied as a domestic student for a Commonwealth supported place. 5. Ms Peters had also submitted that s 169-15 of HESA is further evidence that students can "opt out" of the scheme for a Commonwealth supported place. This section provides as follows: "169-15 Charging student contribution amounts and tuition fees (1) A higher education provider: (a) must require any student who: (i) is a *Commonwealth supported student in relation to a unit of study; and (ii) is enrolling in the unit with the provider; and (iii) is not an *exempt student for the unit; to pay to the provider the student's *student contribution amount for the unit; and (b) must not require the student to pay any of his or her *tuition fee or any other *fee for the unit. (1A) Despite subsection (1), a higher education provider must not require a student who is enrolling in a unit in circumstances that make it a replacement unit within the meaning of the *tuition assurance requirements to pay to the provider the student's *student contribution amount for the unit. (2) A higher education provider: (a) must require any *domestic student who: (i) is not a *Commonwealth supported student in relation to a unit of study; and (ii) is enrolling in the unit with the provider; and (iii) is not an *exempt student for the unit; to pay to the provider the student's *tuition fee for the unit; and (b) must not require any domestic student to pay any other *fee, or any of his or her *student contribution amount, for the unit. (2A) Despite subsection (2), a higher education provider must not require a domestic student who is enrolling in a unit in circumstances that make it a replacement unit within the meaning of the *tuition assurance requirements to pay to the provider the student's *tuition fee for the unit. (3) However (unless subsection (4) applies), a higher education provider must repay to a person any payment of his or her *student contribution amount or *tuition fee for a unit of study that the person made on or before the *census date for the unit if the person is no longer enrolled in the unit at the end of the census date. Note: Other provisions about student contribution amounts and tuition fees are set out in Subdivision 19‑F and Parts 2‑2 and 3‑2. (4) Subsection (3) does not apply if: (a) the student is no longer enrolled in the unit at the end of the census date because the provider has ceased to provide the unit as a result of ceasing to provide the course of which the unit formed part; and (b) the *tuition assurance requirements applied to the provider at the time the provider ceased to provide the unit; and (c) the student chose the option designated under those requirements as course assurance in relation to the unit." 1. The University submits that s 169-15(2) of HESA obliges a higher education provider to require any domestic student who is not a Commonwealth supported student in relation to a unit of study and who is enrolling in a unit with the provider and who is not an exempt student to pay the provider's tuition fee for the unit. It says that higher education providers may charge tuition fees to undergraduate students for units of study in only a limited number of circumstances including where the student wishes to undertake a unit of study that does not contribute to the course of study in which the student is enrolled; see s 36-10(1)(b) HESA; the unit of study forms part of a bridging course for overseas trained professionals; s 36-15(1)(b) of HESA; a student undertakes the unit of study wholly during a summer school period or a winter school period; ss 36-10(7) – (10) of HESA, or the student commences a course of study as an overseas student s 36-30(2)(d) of HESA. The University says and we accept that s 169-15 does not provide a general entitlement to domestic students to opt out before admission or enrolment. There was no evidence to the contrary. 2. Ms Peters also submitted that the reference to a "domestic fee paying place" in UAC's explanation of course code types which was in evidence is also further evidence that students can "opt out" of the scheme for Commonwealth supported places. The University says that this submission is incorrect. No evidence was tendered by Ms Peters demonstrating that the domestic fee paying place course code is applied by UAC to domestic applications for an undergraduate (as opposed to postgraduate) courses in which event her submission is not in our view made out. 3. Ms Peters has the onus in establishing the circumstances which she contends should be taken into account. Ms Peters has submitted that she was entitled to "opt out" of the scheme for a Commonwealth supported place. In light of the submissions from the University to which we have referred and in the absence of any contrary evidence from Ms Peters we are not satisfied that on a proper construction of the relevant legislation she could have opted out. 4. On the issue of liability for fees, the University submitted that as a domestic student, Ms Peters would have been required to pay no more than the maximum student contribution amount for a Commonwealth supported student proscribed by s 93-10 of HESA. This section provides: "93-10 Maximum student contribution amounts for places (1) The maximum student contribution amount for a place in a unit of study is the amount specified in the following table in relation to the funding cluster in which the unit is included. Maximum student contribution amounts for places Item Column 1 Column 2 For a place in a unit in this funding cluster: The maximum student contribution is: 1 Law, Accounting, Administration, Economics, Commerce $8,859 2 Humanities $5,310 3 Mathematics, Statistics, Behavioural Science, Social Studies, Computing, Built Environment, Other Health (a) for a place in a unit in Mathematics, Statistics, Computing, Built Environment or Other Health—$7,567; or (b) for a place in a unit in Behavioural Science or Social Studies—$5,310. 4 Education $5,310 5 Clinical Psychology, Allied Health, Foreign Languages, Visual and Performing Arts (a) for a place in a unit in Clinical Psychology, Foreign Languages or Visual and Performing Arts— $5,310; or (b) for a place in a unit in Allied Health—$7,567. 6 Nursing $5,310 7 Engineering, Science, Surveying for a place in a unit in Engineering, Science or Surveying— $7,567. 8 Dentistry, Medicine, Veterinary (a) for a place in a unit in Dentistry, Medicine or Veterinary Science—$8,859; or Science, Agriculture (b) for a place in a unit in Agriculture—$7,567. Note 1: Commonwealth Grant Scheme Guidelines made for the purposes of section 33‑35 and this section deal with the funding clusters in which particular units of study are included and whether particular units are units in a particular part of a funding cluster. Note 2: Maximum student contribution amounts for places are indexed under Part 5‑6. (2) The Commonwealth Grant Scheme Guidelines may specify, for the purposes of column 2 of the table in subsection (1): (a) how to determine whether a particular unit is a unit in a particular part of a *funding cluster; or (b) that a particular unit is in a particular part of a funding cluster." 1. These amounts are indexed and Ms Wylie gave evidence that the maximum student contribution for a law course in 2014 was $10,085 per year. There was evidence that the estimated student contribution amounts for students enrolled in the University's Bachelor of Arts/Bachelor of Laws in 2014 was $7,452 for Years 1-3 and $10,085 for Years 4-5. 2. In contrast the University says that overseas and international students in its Bachelor of Arts/Bachelor of Laws course are required to pay full fees. Section 5 of ESOS provides as follows: "5 Definitions overseas student means a person (whether within or outside Australia) who holds a student visa, but does not include students of a kind prescribed in the regulations. student visa has the meaning given by the regulations." 1. There was evidence that overseas students must be charged at least the minimum fee prescribed in Chapter 6 of the Higher Education Provider Guidelines. This provides relevantly: "CHAPTER 6 PUBLICATION REQUIREMENTS FOR CENSUS DATES AND EFTSL VALUES 6.1 PURPOSE 6.1.1 The purpose of this chapter is to specify the: (a) periods under subsection 169-25(1) of the Act; (b) date by which, and the manner in which, census dates and EFTSL values must be published by a higher education provider under subsection 169-25(3) of the Act; (c) date before which a variation to a published census date or EFTSL value must be made under subparagraph 169-25(4)(a)(i) of the Act; (d) circumstances in which a published census date or EFTSL value may be varied under subparagraph 169-25(4)(a)(ii) of the Act; and (e) date by which, and the manner in which, a varied census date or EFTSL value must be published under subsection 169-25(5) of the Act. 6.5 PERIODS 6.5.5 For the purposes of subsection 169-25(1) of the Act: (a) the first period of a year commences on the 1st of January and ends on the 30th of June of that year. (b) the second period of a year commences on the 1st of July and ends on the 31st of December of that year. 6.5.10 The periods specified in paragraph 6.5.5 of these guidelines are relevant only for the purposes of subsection 169-25(1) of the Act and paragraph 6.10.5 of these guidelines. 6.10 DATE BY WHICH, AND MANNER IN WHICH, CENSUS DATES AND EFTSL VALUES MUST BE PUBLISHED BY A HIGHER EDUCATION PROVIDER 6.10.5 The census date and EFTSL value for a unit of study must be published by a higher education provider by: (a) the 1st of April of a year for units of study with a census date in the second period of that same year; and (b) the 1st of October of a year for units of study with a census date in the first period of the subsequent year. 6.10.10 Where a higher education provider is making this information available only through the Internet or in other electronic format, the higher education provider must also provide students with access to an information system via which the student can access the information." 1. Ms Wylie gave evidence that the minimum indicative fee for a law course in 2014 was $11,799. 2. The University submits that the minimum indicative fee for an overseas student for the course in 2014 was greater than the maximum student contribution for a domestic student for the same course. There was evidence that the University charges more than the prescribed minimum indicative fee for an overseas student in the Bachelor of Arts/Bachelor of Laws course. In 2014 the estimated costs of an overseas student placed in the Bachelor of Arts/Bachelor of Laws was $33,360 per year in Years 1-3 and $40,400 per year in Years 4-5. There was evidence that the total difference in estimated costs to students between a Commonwealth supported place and an international full fee paying place over the five years of the combined Arts/Law degree was $138,354. 3. Ms Peters had submitted that there was no evidence to suggest that the University would receive less income from an Australian citizen occupying a Commonwealth supported place than it would receive from a fee paying student. The University submitted and we accept that there was evidence in the President's Report and from Ms Wylie that the total difference in estimated income received by the University from a domestic student compared to an international student over the final two years of the Arts/Law degree alone was $56,728. There was no evidence to the contrary. Ultimately the University did not submit that the funding regime was itself a relevant circumstance. 4. The University says that applications from domestic applicants for admission to a Commonwealth supported place in the Arts/Law degree are governed by the Commonwealth legislative regime established under HESA. Ms Peters had submitted that HESA says nothing about the admission criteria for the Bachelor of Arts/Bachelor of Laws or any other degree provided by the University or any other higher education provider. She also submits that there is nothing in HESA or ESOS that requires a conversion formula to be applied to Australian citizens making an application for admission on the basis of overseas qualifications. 5. The University says that these submissions are incorrect. The University is required to have open, fair and transparent procedures that in its reasonable view are based on merit for making decisions about the selection of students who are to benefit from a grant, allocation or payment including a Commonwealth supported place. This requirement is set out in s 19-35(2) of HESA. Section 19-35 provides as follows: "19-35 Benefits and opportunities must be available equally to all students (1) A higher education provider that receives assistance under this Chapter in respect of a student, or a class of students, must ensure that the benefits of, and the opportunities created by, the assistance are made equally available to all such students, or students in such class, in respect of whom that assistance is payable. (2) A higher education provider that receives: (a) any grant or allocation under this Chapter; or (b) any payment under section 124‑1 on account of amounts of *OS‑HELP assistance; must have open, fair and transparent procedures that, in the provider's reasonable view, are based on merit for making decisions about the selection of students who are to benefit from the grant, allocation or payment. (3) Subsection (2) does not prevent a higher education provider taking into account, in making such decisions about the selection of students, educational disadvantages that a particular student has experienced. (4) A higher education provider that receives any payment under section 110‑1 on account of amounts of *FEE‑HELP assistance for a unit of study must have open, fair and transparent procedures that, in the provider's reasonable view, are based on merit for making decisions about: (a) the selection, from among the persons who seek to enrol with the provider in that unit of study, of persons to enrol; and (b) the treatment of students undertaking that unit of study. (5) Subsection (4) does not prevent a higher education provider taking into account, in making decisions mentioned in that subsection, educational disadvantages that a particular student has experienced. 1. The University submits that the merit principle must inform all admissions and decisions made by it except to the extent where it is permitted to take into account educational disadvantages that a particular student has experienced. 2. The University submits that the merit principle requires it to assess the merit of overseas qualifications held by domestic students seeking admission to a Commonwealth supported place relative to a New South Wales Higher School Certificate. It also requires the University to rank domestic students with overseas qualifications against other domestic students applying for admission to a Commonwealth supported place in an undergraduate course. 3. The University submits that in contrast applications from overseas/international applicants for admission to a full fee paying place in the Arts/Law program are governed by the Commonwealth legislative regime established under ESOS. In particular Part 4 of ESOS provides for the making of a national code by a legislative instrument. The University referred to the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 although this was not in evidence. This is said to provide detailed advice and set out standards for registered providers. The University said and we accept that these standards are not relevant and do not apply to the delivery of higher education to domestic students in respect of which the provisions of ESOS are not operative. Ms Peters made no submission to the contrary. 4. The University submits that as they are not eligible for a Commonwealth supported place by reason of ss 36.10(1)(c) and 36.10(2) of HESA it is not required to rank overseas/international students with overseas qualifications against domestic applicants. We accept this submission. Section 19-35(2) of HESA provides that the merit based procedures which the University must have for making decisions about the selection of students are limited by the words of the section to those students who are "to benefit from the grant, allocation or payment". The procedures applicable to applicants for a Commonwealth supported place do not generally apply to overseas/international applicants. The University cannot advise a person that he/she is a Commonwealth supported student in relation to a unit of study unless they meet the citizenship or residency requirements which are limited by s 36-10(2) of HESA to an Australian citizen, a citizen of New Zealand resident in Australia or a permanent visa holder resident in Australia. 5. Ms Peters had submitted that the funding regime is not a circumstance relevant to determining whether she ought to have been offered a place in the Arts/Law program. She submitted that the prerequisite secondary school qualifications for admission are the relevant circumstances. 6. The University submits that this is misconceived. It does not say that the funding regime is a "relevant circumstance" but that Ms Peters' status as a domestic applicant as opposed to an overseas international applicant and the consequent effect of the relevant governing legislation are the relevant circumstances. It submitted that as a consequence of her status as a domestic applicant, Ms Peters was eligible for a Commonwealth supported place with a maximum student contribution amount and, the relative merit of her overseas qualifications was required to be assessed against the qualifications of other domestic applicants. 7. Ms Peters submits that the assertion by the University that qualifications were "required to be assessed against the qualifications of other domestic applicants … and required to be ranked …" has no identifiable basis. She says that there is no statutory or other provision to support the proposition of there being a "requirement". Rather she says the evidence is that the University made a discretionary decision to refer her to UAC and thereafter UAC applied its "undisclosed" conversion formula to her GCE A-Levels and determined that her notional ranking was 80.00. 8. We do not accept this submission, Ms Peters was a domestic applicant for a Commonwealth supported place subject to the operation of HESA. Section 19-35 of HESA requires the University as a higher education provider receiving a grant or allocation under Chapter 2 to have procedures based on merit for making decisions about the selection of students who are to benefit from the grant or allocation. 9. Ms Wylie gave evidence that higher education providers establish their own entry criteria for admission to Bachelor courses. She says that the University sets admission standards. Applications are assessed by the University against applicable admission standards and offers are based on merit. There was in evidence the University of Sydney (Amendment Act) Rule 1999 (as amended), which provided at Rule 38.1: "38. Quotas 38.1 Admission to courses at the University will be determined by the standard achieved by applicants in the relevant entry qualification, including any additional specified selection criteria, in light of: 38.1.1 the number of places available in a course or unit of study (quotas); and 38.1.2 the number of applicants competing for places. …" 1. Ms Wylie gave evidence that UAC processes applications for admission to undergraduate courses at participating institutions including the University. 2. There was in the President's Bundle a letter from UAC dated 18 March 2014 in which it set out its role in processing Ms Peters' application. This included providing the institution with expert evidence on assessment of GCE A-Level results and providing a schedule for assessing those results and assessing Ms Peters' A-Level results according to that schedule. It says that the Schedule was: "… developed by experts in educational assessment and which was based upon sound methodology and principles. The schedule has been accepted by most NSW and ACT institutions as the appropriate basis upon which to compare GCE performance with NSW HSC performance." 1. In the appendix to the letter UAC stated: "There are two broad principles that underpin the development of schedules to be used to assess overseas qualifications. The first is that the qualification is deemed to be comparable to the New South Wales High School Certificate (HSC), and the second is that students who demonstrate similar levels of achievement will receive similar UAC ranks irrespective of whether they completed the New South Wales HSC or the overseas qualification." There was no evidence to contradict this. 1. The appendix to the letter from UAC also outlined the process of its review of the operative schedule in 2011 being the schedule which was applied to Ms Peters' application. This states: "Following the 2000 review of the GCE A Levels the structure was changed, with the AS-Level courses pitched at a lower standard and seen as the first stage of the full A-Level courses. Because of grade inflation and the subsequent concern about the ability of universities to distinguish between high performing students, an additional grade, A*, was introduced in 2010. The over-arching principle underlying the 2011 review was that NSW Years 12 students and UK A-Level students with comparable achievements should receive the same UAC rank. The following decisions underlined the determination of the revised schedule: * The results of AS-Level courses were not considered as these courses are comparable to NSW Year 11 preliminary courses that are not included in the calculation of the ATAR. * Based on the results from international examinations in Mathematics, Science and English Year 12 participation rates there was no reason to suggest that NSW Year 12 and UK A-Level cohorts were substantially different in ability, so students with comparable rankings and their cohorts were allocated the same UAC rank. UK statistical data showed that, prior to 2010, approximately 25% of students were awarded an A-grade, 25% a B-grade and 25% a C-grade. Introduction of the A* in 2010 resulted in 8% of the students gaining a A* grade, 19% an A-grade, 25% a B-grade and 15% a C-grade. The middle student in a UK A-Level course is on the B/C boundary. The middle student in NSW gains an ATAR (UAC rank) of approximately 70. The ranks corresponding to students on the A*/A, A/B boundaries are 94 and 85 respectively. The revised schedules were based on numerical grades (A* = 6, A = 5, B = 4, C = 3, D = 2, E = 1), and the distribution of the UK grades in 2010. These assessment schedules were considered and agreed upon by two committees comprising of representatives from our institutions; these representatives range from admission staff to deputy registrars and academic registrars at universities." 1. The letter from UAC in evidence also stated that the primary resource for determining the educational standard of overseas secondary qualifications is information from UK NARIC [National Academic Recognition Information Centre] and UCAS [Universities and Colleges Admissions Service]. AEI-NOOSR [Australian Education International-National Office of Overseas Students Recognition] guidelines and other relevant sources are used as required. Where possible relevant syllabuses and examination papers are examined and evaluated. The method used to map grades and marks awarded on overseas qualifications to the marks awarded on the NSW HSC depends on the nature of the information that is available. In developing the schedules UCAS tariffs were not used by UAC as actual grade distributions, which provide an accurate measure of a student's relevant achievement, were available. The schedules are developed for domestic students who have undertaken overseas qualifications. Although developed by UAC institutions have the freedom to use them or not use them and set their own course cut offs. This evidence was not challenged by Ms Peters. 2. We are satisfied on the basis of this evidence that the procedure adopted by the University for the purposes of making a decision about the selection of students based upon merit in compliance with s 19-35 of HESA included retaining UAC to process applications for admission, that such processing was directed by UAC to ensure that students demonstrating similar levels of achievement will receive similar UAC ranks irrespective of whether they completed the NSW HSC or an overseas qualification and that minimum rankings for admission are determined by reference to market forces. There was no material before us upon which we could conclude that the procedure adopted by the University fell outside the requirement of s 19-35 including that delegation of processing of applications for admission to UAC was unlawful. We find that there is an identifiable basis for the requirement for ranking of domestic applicants. 3. Ms Peters also submits that as the University determined that an overseas student with 14 points under GCE A-Levels could be enrolled in its Arts/Law program then it has determined that such a qualification meant that the notional comparator was academically equipped or had the requisite merit or ability to satisfy the entry level requirements of the course. Ms Peters submits that the merit level or ability does not change simply because the person who achieved it was an Australian citizen. 4. The University says that this argument is misconceived. It does not deny that Ms Peters had the requisite merit or ability to satisfy the entry level requirements of the Bachelor of Arts/Bachelor of Laws. The University says that it applies the same admissions criteria to domestic and international applicants and admits applicants to the course on the basis of a secondary school leaving qualification such as the New South Wales Higher School Certificate (including national and international equivalents), tertiary study or an approved preparation program. The University did not decline to offer Ms Peters a place in the Arts/Law program because her overseas qualifications were regarded as lacking in merit but because they were not sufficiently competitive when ranked alongside other domestic applicants for a Commonwealth supported place. 5. Ms Peters in reply says that there is no dispute between the parties that the University operates a two-tier system for applicants with overseas secondary qualifications applying for admission to the Arts/Law program. The first is for those who are non-Australian citizens. They are eligible to be admitted to the Arts/Law program on achieving 14 points with their GCE A-Levels. The second is for those who are Australian citizens who are not eligible for admission even if they achieve the same 14 points. The second tier is required by the University to undergo the undisclosed conversion formula and the reason they have to do so is because of their nationality. 6. We are satisfied on the evidence of Ms Wylie and by the operation of Rule 38.1 of the University of Sydney (Amendment Act) Rule 1999 (as amended) that market forces dictate the minimum rankings for admission of domestic student applicants for a Commonwealth supported place under HESA. There was no evidence to the contrary. We find that a place was not offered to Ms Peters not because her qualification was lacking in merit but because she was not sufficiently competitive when ranked alongside other applicants for a Commonwealth supported place. 7. Ms Peters notes that the concession of the University that she had the requisite merit or ability to warrant admission to the Arts/Law program. It also asserts that the reason for refusing for admission was because she was a "domestic" applicant, that is, that she was subjected to the two tier system because she was Australian. Ms Peters says that this argument is logically inconsistent and seeks to assert on the one hand that the University has a transparent merits based system of admission but on the other that this two tier system results in Australian applicants requiring markedly higher "merit" than non-Australian applicants. She says that based on the UAC conversion system the admission as a non-Australian citizen requires a ranking of only 80.00 whereas an Australian citizen requires 99.7. There is no evidence before us that Ms Peters was excluded from entry on the basis of lack of merit. Rather the un-contradicted evidence of Ms Wylie is that the qualification mark was set by market forces meaning that not all applicants otherwise requisite ability would obtain a place. 8. Ms Peters also submitted that the University should have offered her a Commonwealth supported place on the basis of her GCE A-Level results in the exercise of its discretion as to what marks it would accept for entry into the Arts/Law program. The University says that this is also incorrect. The University was required by s 19-35(2) of HESA to rank Ms Peters against all domestic applicants for admission on the basis of merit. We accept this submission. 9. Ms Peters also submits that the University could have offered her a non-Commonwealth supported place in the Arts/Law program. The University says that that submission is incorrect. Ms Peters applied for a Commonwealth supported place in the program. Had Ms Peters been successful in obtaining a place the University would have been required by ss 36.10, 36.15 and 36.30 of HESA to advise Ms Peters that she was a Commonwealth supported student. We accept these submissions on behalf of the University which are consistent with our reading of the legislation. No evidence was introduced by Ms Peters to the contrary. 10. The University submits that the circumstances of domestic applicants for admission to a Commonwealth supported place in the Arts/Law program and the circumstances of overseas international applicants for admission to a full fee paying place in its Arts/Law program are materially different for the purposes of s 7(1)(a) of the Act. 11. Ms Peters in reply says that whatever configuration of argument is attempted the reason for the treatment always involved at its core her nationality as an Australian. She says that the University cannot rely on race as the "material difference" because that would undermine and defeat the purpose of the legislation to render unlawful discrimination on the grounds of race. We agree generally with this submission. However, the authorities to which we have referred require us to consider all of the objective features surrounding the actual treatment of Ms Peters. In doing so, we are not to exclude circumstances that arise out of or are the effect or consequence of her race; see Purvis at [230]. 12. Ms Peters says that notwithstanding its concession to have "open, fair and transparent procedures that are based on merit for making decisions about the selection of students who are to benefit from a grant, allocation or payments (including a Commonwealth supported placed)", the University has not been clear and it has not been transparent regarding the method of conversion applied by the UAC to Ms Peters' GCE A-Level score. She says that by reason of the fact that she was an Australian citizen (and not say, English) she was subjected to a more rigorous and secretive selection process for acceptance into the degree. 13. We have referred to the evidence concerning the way in which UAC calculates a score for applicants with overseas qualifications. There was no evidence led by Ms Peters to contradict this material. We are satisfied that it sets out the basis upon which her application was assessed by UAC. It establishes in our view that the method of conversion applied by UAC was both transparent and fair it being directed to afford similar marks to equivalent NSW and overseas qualifications. We cannot accept Ms Peters' submission to the contrary. 14. Ms Peters says a system based on merit fails when the standard of merit discriminates based on race. She says that a merits based system would allow admission on the same GCE A-Level results for an Australian citizen and non-Australian citizen. Ms Wylie's evidence was that the selection was based upon merit having regard to market forces. In other words, where there are a limited number of places in a program and more candidates apply than there are places the cut off level by reference to the applicant's ATAR score will rise. There is no evidence that the procedure adopted by the University pursuant to which selection of domestic applications has regard to market forces is based upon merit is unlawful. We have accepted that the University is not subject to a statutory obligation to rank domestic applicants against overseas applicants. 15. We have given close consideration to the extensive submissions made on behalf of each party as to the relevant circumstances to be taken into account and s 7(1)(a) of the Act. In line with the authorities to which we have referred we have considered whether each of the circumstances proffered by each party forms one of the objective features surrounding the actual treatment of Ms Peters. The authorities require us to identify all of the effects and consequences of Ms Peters' race as part of the relevant circumstances. We have not excluded any circumstance because it might be identified as being connected with her race and not excluded all of the circumstances that arise out of or are the effect or consequence of her race. 16. We find that it was an effect or consequence of her Australian nationality that Ms Peters was subject to the operation of HESA on an application for admission to undergraduate study at the University of Sydney and must if successful have been offered a Commonwealth supported place. It follows that it is also a relevant circumstance that her application was subject to the procedure introduced by the University as required by s 19-35 of HESA for the selection of domestic students on merit. 17. We have not been satisfied on the evidence that Ms Peters was able to opt out of her Commonwealth supported place or of the application procedure or that the University had a general discretion to admit her having achieved a lower mark. Nor are we satisfied that the University was subject to an obligation to rank overseas applications against domestic applicants. These are not relevant circumstances. We accept Ms Peters' submission that the relevant circumstances include her GCE A-Level qualifications. 18. In our view applying the principles to which we have referred the objective features surrounding Ms Peters' treatment by the University can be summarised as including: 1. A person applying for entry to the Arts/Law program at the University of Sydney in 2013 for admission in the 2014 academic year; 2. Holding GCE qualifications of two As and a B; 3. (As an effect or consequence of being an Australian citizen) making their application as a domestic student subject to the admission procedures implemented by the University under s 19-35 of HESA; 4. Where selection is based upon merit subject to market forces. 1. In so concluding we have, consistently with Purvis, not excluded circumstances (3) and (4) merely because they arise out of the effect or consequence of her race by which she was required to make application as a domestic student. 2. In light of these findings, the notional comparator should be taken to be a person in the same position in all material respects not being an Australian citizen. 3. Ms Peters pleads that the notional comparator was a non-Australian citizen who had achieved the same A-Level results as she had and who had made an application for admission to the combined Arts/Law degree at the University in 2013 for admission in the 2014 academic year. The University does not expressly traverse this pleading. 4. In our view, such a notional comparator would not be in the same objective position as Ms Peters in all material respects. The adoption of such a comparator would not allow comparison in the same circumstances which we have found to be the objective features surrounding Ms Peters' treatment by the University including those arising as an effect and consequence of her Australian citizenship. 5. It is possible to consider a notional comparator in the same circumstances which we have identified, that is, a non-Australian citizen who was a permanent visa holder who would be resident within Australia for the duration of the relevant unit of study. Section 36-10(2)(c) of HESA provides that such a person meets the residency requirements for the purposes of paragraph 1 in the absence of which a higher education provider must not advise a person that he or she is a Commonwealth supported student. Section 36-30(1) of HESA provides that where a University is not prohibited from advising that a person is a Commonwealth supported student they must enrol the person in the unit as a Commonwealth supported student. 6. Section 36-30(2)(d) provides that: "(2) Subsection (1) does not apply in respect of a person's enrolment with *Table A provider in a unit of study that forms part of an *undergraduate course of study if: … (d) at the time the person comes the undergraduate course of study with the provider, the person is an *overseas student." 1. An overseas student is relevantly defined in Schedule 1 to mean: "Overseas students means a person who: (a) is not an Australian citizen; (b) is enrolled, or proposed to be become enrolled in: (i) a *course of study with a higher education provider; or (ii) a unit of study access to which was provided by *Open Universities Australia; but does not include: (c) a person entitled to stay in Australia, or to enter and stay in Australia, without a limitation as to time; …" 1. A permanent visa holder is defined in Schedule 1 of HESA to mean the holder of a permanent visa within the meaning of s 30(1) of the Migration Act 1958 (Cth). Section 30(1) of the Migration Act provides: "30 Kinds of visas (1) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely. …" 1. A permanent visa holder does not fall within the exception to s 36-30(1) of HESA. Accordingly, a non-Australian citizen holding a permanent visa would have been subject to the same circumstances which we have identified. They would have been subject to the operation of HESA including in respect of the offer of a Commonwealth supported place and subject to conditions (3) and (4) which we have identified. They would not have been treated differently to Ms Peters in these same circumstances. 2. Conversely, a non-Australian citizen not holding a permanent visa would not be subject to circumstances (3) and (4) in which event a comparison in the same circumstances cannot be made for the purposes of s 7(1)(a) of the Act. 3. Although we have found that Ms Peters was treated differently in respect of her application for admission on the basis of her GCE A-Level results than an overseas student (not holding a permanent visa) with the same results and that such treatment was afforded by the University because she was an Australian citizen, we are not satisfied that such treatment was less favourable in the same circumstances. 4. We find that Ms Peters' claim for direct discrimination is not substantiated. 5. In case this finding is in error we will consider separately the University's claim under s 54(1)(a) of the Act that it is required by the legislative regimes established by HESA and ESOS to treat domestic undergraduate applicants differently to overseas undergraduate applicants. Ms Peters' claim for unlawful indirect discrimination 1. As we have indicated s 7(1)(c) of the Act provides: "(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator: … (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." 1. To substantiate a complaint of indirect race discrimination Ms Peters must prove that: 1. The University required her to comply with a requirement or condition; and 2. A substantially higher proportion of non-Australian students comply or are able to comply with the requirement than Australian students; and 3. The requirement is not reasonable having regard to the circumstances; and 4. She cannot comply with the requirement. 1. The words "on the grounds of the aggrieved person's race or the race of a relative or associate of the aggrieved person" do not apply to s 7(1)(c) for the reasons given by the Court of Appeal in Amery at [49]; see also Faulkner v ACE Insurance Ltd [2011] NSWADT 36 at [84]. 2. The key concept behind the indirect discrimination provisions in the legislation was described by Mason CJ and Gaudron J in Waters v Public Transport Corporation (1991) 173 CLR 349 at [357] as follows: "… some criterion has been used or some matter taken into account which, although it does not, in terms, differentiate for an irrelevant or impermissible reason, has the same or substantially the same effect as if different treatment had been accorded precisely for a reason of that kind." 1. Dawson and Toohey JJ said at [392]: "The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of treatment on one person when compared with another is less favourable." 1. The High Court in Australian Iron & Steel v Banovic and Others (1989) 168 CLR 165 gave some guidance as to construction of the words "requirement or condition". Dawson J at [185] said: "Upon principle and having regard to the objects of the Act, it is clear that the words "requirement or condition" should be construed broadly as to cover any form of qualification or prerequisite demanded by an employer of his employees: Clarke v Eley (IMI) Kynoch Ltd (1983) ICR 165, at 170-1. Nevertheless, it is necessary in each particular instance to formulate the actual requirement or condition with some precision." 1. See also McHugh J in Banovic at [195] – [198], Waters at [393] per Dawson and Toohey JJ; State of New South Wales v Amery (2006) 230 CLR 174 per Gummow, Hayne and Crennan JJ at [63]; Wright and Deri v Border Studies, Teaching and Educational Standards [2015] NSWCATAD 120 at [70]. 2. As McHugh J said in the context of providing goods and services at [407]: "… some stipulation or set of circumstances must be obeyed or endured if those goods or services are to be acquired, used or enjoyed." 1. For something to be a requirement or condition in relation to a matter it must be separate from that matter. Dawson J said in Waters at [393]: "However, whether such a requirement or condition is in fact separate from the matter to which it relates will clearly depend upon how the matter is described and how the requirement or condition is characterised." 1. The requirement or condition must be neutral on its face and must be one with which the entire group to which it was directed must comply; Banovic at [185] - [191]. 2. The requirement might be inferred or implicit. It does not have to be express; Waters at [407] per McHugh J and at [360] per Mason CJ and Gaudron J. 3. The Tribunal must make a factual finding about the impugned requirement or condition; see generally the approach taken in Waters. 4. The relevance of the condition was considered by the High Court in Amery where the majority of Gummow, Hayne and Crennan JJ (Callinan J agreeing at [205] – [207]) held at [65]: "… it is not the mere existence of a requirement or condition to which Pt 3 Div 1 of the AD Act is directed. It is discrimination which may involve the imposition of the requirement or condition. The question that must be asked in applying ss 24(1)(b) and 25 is whether the perpetrator engaged in a prescribed form of discrimination, not "what was the requirement or condition in this case."" 1. Ms Peters says that the University imposed a requirement that in order for a person, including her, to be admitted into its combined Arts/Law program on the basis of achieving 14 points by reference to their GCE A-Levels the person including her had to be a non-Australian citizen. She says that a construction that the requirement was that domestic students meet the minimum score for admission cannot be the correct one. She says that she did meet the minimum score for admission on the basis of her GCE A-Levels and that the University's real requirement was that to be admitted on that basis one had to be a non-Australian citizen. 2. The University firstly submits that s 7(1)(c) of the Act is not relevant because it agrees that to receive an offer of admission a domestic applicant for admission to an undergraduate Commonwealth supported place in its Bachelor of Arts/Bachelor of Laws in 2014 required higher grade results in the GCE A-Levels than an overseas/international applicant for admission to an international fee paying place in the Bachelor of Arts/Bachelor of Laws. The basis of the submission goes to the question of direct discrimination which we have considered. It does not respond to the requirement proposed by Ms Peters which if accepted by the Tribunal might comprise one element of the claim Ms Peters asserts for indirect discrimination. It is appropriate to consider the proposed requirement on its merits. 3. The University says and we agree that there is no evidence in support of Ms Peters' contention that it imposed an express requirement that she be a non-Australian citizen to be admitted to the Arts/Law program in 2014 if she wished to rely on her GCE A-Level results. However, as we have indicated the requirement can be implicit. 4. The University says that the requirement described by Ms Peters is not neutral. It expressly identifies non-Australian citizenship as the condition for meeting it. It says that the requirement was not imposed on Australian applicants. The University says that the concept of indirect discrimination was not directed to comparing an ability to comply with different requirements. It is rather directed to the ability of persons of different race to comply with the same requirements. 5. The University submits that the only relevant requirement which it imposed was that all successful domestic applicants for the Arts/Law program in 2014 achieved the minimum rank for admission, which was 99.7. It says this requirement was neutral on its face because it applied to domestic applicants regardless of whether the applicant had an overseas high school qualification or an Australian high school qualification. An applicant's qualification is not a characteristic of a person's "race". 6. The University says that Ms Peters' claim must fail at this first element because the only relevant actual requirement imposed by the University was not a requirement imposed on persons of a different race or overseas/international applicants. 7. Ms Peters in reply says that the University seeks to circumvent the issue of indirect discrimination by recasting the condition as a requirement that she have a ranking of 99.7 to gain admission to the Arts/Law degree. She says that this removes from consideration the central feature of her application for admission being the fact that a non-Australian or in this case a UK citizen was not required to have their 14 points from the GCE A-Levels converted to any ranking at all to gain admission. She says her proposed requirement is correctly cast because it is directed to the condition imposed by the University for students applying for admission on the basis of UK GCE A-Levels. She says that it is neutral. 8. In our view the requirement pleaded by Ms Peters by its inclusion of the reference to a non-Australian citizen is not neutral. On its face it distinguishes explicitly between those with her attribute and those without. Ms Peters does not fall within the group to which it is directed being non-Australian citizens. By the way in which it is framed, the elements of compliance and the comparison of who can and who cannot meet the condition are not able to be considered. 9. Nor can we accept the submission of the University as to the operative requirement. The requirement it proposed is restricted to domestic students and takes no account of non-Australian applicants with GCE A-Level qualifications and cannot be a requirement of general effect amendable to consideration under s 7(1)(c) of the Act. 10. We are not satisfied that either of the requirements proposed by Ms Peters or the University in their submissions is the appropriate one for the purposes of s 7(1)(c) of the Act. There was no submission as to any other requirement which was common to all applicants with GCE A-Level qualifications even within a broad interpretation of s 7 and having the requirements of neutrality, separation, particularity and being framed in such a way that consideration of the remaining elements of compliance, comparison and reasonableness can be undertaken. 11. Callinan J in Amery at [208] expressed the view that whilst the Tribunal and the courts are not bound by an applicant's formulation of a condition or requirement, "it is their duty to ascertain the actual position, including whether an (alleged) perpetrator has truly sought to impose, or permits indirectly, the imposition of a requirement or a condition which is discriminatory, and not reasonable within the meaning of the Act". 12. However, that is not to say that a requirement or condition might be found in every circumstances; see for example Sims v The Aged Company Limited [2000] VCAT 2307 (30 November 2000) at [54]. 13. There is evidence that Ms Peters GCE A-Level qualification was afforded the same mark of 14 applied to non-Australian applicants with the same qualifications. There is evidence that it was converted by UAC to a mark of 80.00 in satisfaction of the procedure to afford equivalence to New South Wales HSC and foreign applicant scores for the purposes of ranking. Ms Peters' complaint is that the mark of 80.00 was insufficient to afford her entry to the Arts/Law course by reason of the operation of the University's procedure by which it determined ranking for admission based upon market forces. The requirement of which she complains is the application of the University's procedure to Australian applicants when it is not applied to non-Australian applicants with the same mark. However, this is not a requirement or condition which apparently applies equally to all persons regardless of attribute. It only applies to Australian citizens. 14. The Tribunal has been unable to identify a requirement or condition which apparently applies equally to all persons affected regardless of attribute. The evidence establishes in our view that applicants for admission to the University on the basis of GCE A-Level results are not subject to one common requirement. Australian applicants are liable to be offered a Commonwealth supported place subject to the operation of HESA including the procedure introduced by the University pursuant to s 19-35 for selection of students on merit. Non-Australian applicants who are full fee paying are not subject to the same selection procedure based upon market forces. Ms Peters was subject to no condition requiring GCE A-Levels of 14 to be admitted to the Arts/Law program. There is no requirement to which we have been directed or which we have otherwise been able to idenitify with which all applicants holding GCE A-Levels must comply. 15. We find that Ms Peters has not satisfied the first element of unlawful indirect discrimination from which it follows that her claim is not substantiated. 16. The parties made extensive submissions concerning the remaining elements of the comparison, reasonableness and Ms Peters' ability to comply. These were directed to the requirement which each party had proffered as to the first element of s 7(1)(c) of the Act. In light of our finding that the requirements proposed by each party are not operative it is unnecessary that we consider these submissions. In particular, we are unable to undertake the analysis of the remaining elements where Ms Peters is not subject to the requirement which she proposes. Is the statutory exception made out? 1. If contrary to our findings above, we had concluded that the University had discriminated against Ms Peters either directly or indirectly, the University relies on s 54(1)(a) of the Act to which we have referred. 2. In order to make out the exception, the University will need to establish that it was necessary to treat Ms Peters in the way it did to comply with the requirement of another act whether passed before or after the Act. 3. Ms Peters applied as a domestic applicant for a Commonwealth supported place in the Bachelor of Arts/Bachelor of Laws in 2014. The University submits and we have accepted that had she been successful in obtaining a place in that course it would have been required by ss 36.10, 36.15 and 36.30 of HESA to advise Ms Peters that she was a Commonwealth supported student. The University submitted and we have accepted that it was required by s 19-35(2) of HESA to rank Ms Peters against all domestic applicants for admission to a Commonwealth supported place on the basis of merit. 4. Ms Wylie gave evidence that market forces dictate the minimum ranking for admission to a Commonwealth supported place. She also gave evidence that the minimum ATAR for admission to a Commonwealth supported place in the University's Arts/Law program in 2014 was 99.7. There was evidence that Ms Peters' two A Grade results and a B Grade result in the GCE A-Levels equated to a UAC rank of 80.00. The University submits that Ms Peters was unsuccessful in obtaining a place in the Bachelor of Arts/Bachelor of Laws program in 2014 because she was not ranked highly enough relative to other domestic applicants to receive an offer. 5. Ms Peters says that there is nothing in HESA or ESOS which required the University to treat her differently in terms of the marks she needed to be admitted to the combined Arts/Law course. 6. She referred us to the decision of Dawson and Toohey JJ in Waters in which the High Court considered the operation of a broadly equivalent section, being section 39 of the then Equal Opportunity Act 1984 (VIC). In that decision, their Honours said at p 173: "If it were necessary for the respondent to commit acts of discrimination in order to carry out the specific directions of the Minister for Transport or the Director – General of Transport then, by virtue of s 39(e)(ii), those acts would not be unlawful, but if there were a discretion as to the manner in which the specific directions might be carried out which offered a choice between discrimination and no discrimination, the adoption of discriminatory means would be afforded no protection by s 39(e)(ii)." 1. Ms Peters relied on the discussion in Terence Lavery v Commissioner of Fire Brigades [2003] NSWADT 93 (upheld on appeal in Commissioner of Fire Brigades (NSW) v Lavery [2005] NSWSC 268) in which the Tribunal said at [79] - [80]: "79. In some cases it may be relatively simple to determine whether conduct is excluded from the operation of the Anti-Discrimination Act by s 54(1)(a) because it was necessary for the respondent to act as he/she did in order to comply with the provisions of another act. For instance, s 49ZYN(1) of the Anti-Discrimination Act renders it unlawful to refuse to provide goods or services to a person on the ground of age. Section 114 of the Liquor Act 182 provides that it is unlawful to sell liquor to a person under the age of 18 years and s 59 of the Public Health Act 1991 renders it unlawful to sell tobacco products to a person under 18. Clearly a shopkeeper who is alleged to have contravened s 49ZYN(1) of the Anti-Discrimination Act by refusing to supply liquor and cigarettes to a person under the age of 18 would be able to successfully assert that his/her conduct was not unlawful because it was necessary for him/her to act as he/she did in order to comply with the provisions of the relevant legislation prohibiting the supply of liquor and cigarettes to people under the age of 18." 80. To adopt the language of McHugh J in Waters v Public Transport Corporation (1991) 173 CLR 349 at 413, the requirements of the Liquor Act 1982 and the Public Health Act 1993 concerning the supply of liquor and cigarettes to people under the age of 18 are "mandatory and specific" and therefore fall within the "protective cloak" of s 54. … Thus in order for the respondent to successfully rely upon the "protective cloak" provided by s 54 it seems necessary to establish that the requirements of the other Acts are mandatory and specific, and permitted no means of compliance except acting in a manner that would otherwise constitute unlawful discrimination. Whether particular conduct attracts the "protective cloak" of s 54 appears to be a mixed question of fact and law; the construction of the "requirements of the other Act" is a question of law, and whether the respondent was obliged to act as he/she did in order to comply with the requirements of the other Act is question of fact." 1. We have also considered the Tribunal's decision in Sydney University Postgraduate Representative Association (SUPRA) & Ors v Minister for Transport Services & Ors [2006] NSWADT 83, which referring to the approach taken by McHugh J in Waters referred to above, concludes at [84] that: "The wording of s 54 of the Act, when interpreted both literally and in accordance with the principle of legality, requires Parliament to mandate the particular conduct occur, or to authorise the holder of a discretionary statutory power to exercise that power in a way which is contrary to the prohibitions in the Anti-Discrimination Act before the statutory authority may be made out." 1. McHugh J in Waters also said at [413] - [414] that: "The power of the Minister to give directions under s 31(1) is subject to the operation of the general law. By general law I mean the body of common law and equitable rules which are supplemented or amended by statutes and regulations and other instruments having the force of law. Section 31(1), therefore would not authorise a direction that the corporation commit a crime or tort or breach of a contract or by-law. Nor would it authorise a direction that the corporation commit a breach of a statute such as the Act. These propositions, though not directly expressed in the Transport Act, are self-evident. They are self-evident because, under a government of laws and not of men and women, it is axiomatic that, in the absence of express words or necessary intendment, Parliament does not intend the recipient of a power to authorise a Minister, statutory body or government official to break the general law of the land … Consequently, in my opinion, Parliament cannot be taken to have authorised the Minister to give directions to the corporation to perform acts but which for the directions would be a breach of the Act. …" 1. Ms Peters concedes that it is the case that HESA provides a framework whereby the Commonwealth agrees to fund and support universities to provide education on certain terms. She says however that it does not apply to how the cut off marks are set. We accept that there is no express provision to that effect. 2. Ms Peters submits that there is nothing in the relevant statutory regime the subject of Ms Wylie's evidence or otherwise which required the University to treat her GCE A-Levels differently as to the manner in which it would those of a non-Australian citizen. In particular, she says the University on its own evidence may exercise its discretion to admit students who do not receive the established ATAR. 3. Ms Peters had received an offer of admission to the Bachelor of Arts degree although her UAC score was below the cut off level of 82.40. The University has submitted that this offer arose out of a second round of offers not the exercise of any discretion. There is no evidence to the contrary. 4. Ms Peters submits that the legislation does not require the University to treat her as a Commonwealth supported position within the meaning of HESA. For the reasons we have already expressed that submission is not made out. 5. Ms Peters next says that the legislation does not require that the University engage UAC to assess overseas credentials. We accept that submission. Whilst under s 19-35(6) of HESA the University must have procedures based upon merit for making decisions about the selection of students, there is no express requirement that the University must engage UAC to assess overseas credentials. 6. Ms Peters further says that the legislation does not require GCE A-Levels to be assessed differently depending upon whether the qualification is held by an Australian citizen or a non-Australian citizen. This submission is not made out on the evidence. Ms Peters' own evidence is that the University had afforded her GCE A-Levels 14 points which is the same mark referred to on the website for international overseas students. It is also consistent with the evidence to which we have referred as to the basis upon which UAC assesses GCE A-Level qualifications to afford equivalence between foreign and domestic applicants. The evidence is not that her GCE A-Levels were assessed differently. Rather, it is that upon conversion to a UAC score her mark was insufficient to meet the competitive cut off mark for Arts/Law in that year. 7. Ms Peters finally submits that the legislation does not require the University to authorise UAC to apply a formula to her GCE A-Level result to determine an ATAR equivalent. We accept that the legislation contains no such specific requirement. 8. In summary, Ms Peters says that it was a policy decision in the exercise of a discretion by the University that produced the outcome not the application of any mandatory statutory provision and that the s 54 exception should fail. 9. We have been satisfied that the procedure by which the University by UAC converted Ms Peters' marks to a UAC score which was thereafter subject to competitive market forces in the consideration of domestic applications for the Arts/Law course is that arising under s 19-35(2) of HESA which provides: "19-35 Benefits and opportunities must be available equally to all students … (2) A higher education provider that receives: (a) any grant or allocation under this Chapter; or (b) any payment under section 124-1 on account of amounts of * OS-HELP assistance; must have open, fair and transparent procedures that, in the provider's reasonable view, are based on merit for making decisions about the selection of students who are to benefit from the grant, allocation or payment." 1. HESA does not expressly mandate the procedures which the University must apply in making a decision about the selection of students. Those procedures must merely be "open", "fair" and "transparent". They are required to be based on merit in the University's reasonable view. 2. In our view, compliance with s 19-35 of HESA is mandatory and specific in the sense that it requires the University to have procedures which are based upon merit for the making of decisions about the selection of students. However, the qualification that determination of whether the procedures are based on merit falls within the University's "reasonable view" introduces an element of discretion as to the nature and operation of the procedure. 3. There is no mandatory and specific provision which stipulates that in determining cut off marks by reference to market forces under the University's admission policy, based on merit, the University is authorised to treat domestic students differently from overseas students with the effect that an Australian student with the same marks does not gain entry to a course. 4. In the absence of express words, we consider in line with McHugh J's reasoning in Waters at [414] that in requiring the University to implement a procedure in its "reasonable view" under s 19-35(2) of HESA, Parliament could not have intended to authorise the University to act in a way which is contrary to the Act. 5. We find that had Ms Peters established her complaints of discrimination, the University would not have made out the exception under s 54 of the Act by relying upon s 19-35 of HESA. Orders 1. The complaints of unlawful direct and indirect discrimination in the provision of education are dismissed. Costs 1. Both parties seek leave to be heard on the question of costs depending upon the outcome following the Tribunal's decision. We make the following directions: 1. Either party to file and serve any application for costs within 21 days of the date of publication of these Reasons. The Respondent to any such Application to file and serve submissions in reply within 14 days. 2. The determination of such application is to be made without a hearing on the papers unless a party objects to that course in which case the proceedings will be listed for directions by arrangement with the Registry. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 17 November 2015