McAdam v Victoria University & Ors (Anti-Discrimination)  VCAT 1429 (3 September 2010)
This decision illustrates how Charter arguments may complement complaints under the Equal Opportunity Act 1995 (Vic). It considers an application by Victoria University to strike out or dismiss a number of claims made by Ms McAdams under the EO Act and the Charter.
The decision also confirms that universities are likely to be public authorities for the purpose of the Charter and considers the operation of s 39, which relates to the bringing of legal proceedings.
Ms McAdam completed a graduate diploma and a master’s degree with distinction at Victoria University. In February 2008 she enrolled in the PhD program at Victoria University’s School of Psychology. Her research project related to non-pharmacological approaches to the treatment of dementia.
Professor Jill Astbury supervised Ms McAdam from February to August 2008. Professor Astbury withdrew her supervision of Ms McAdam on 13 August 2008, prior to the completion of the pre-candidature process, because of ‘differences in [their] disciplinary perspectives, views on rigour in research and the need to develop methodological skills as an integral part of research training’.
The postgraduate committee subsequently considered Ms McAdam’s research proposal and sent her a report on 18 August 2008. This report criticised the limited scope of the proposal and questioned the objectivity of the proposed evaluation method, and whether the project would deliver new knowledge. Ms McAdam strongly disputed the committee’s report. She claims that she was told that there were no qualified or available supervisors for her in the School of Psychology, and she was forced to seek a supervisor outside the School of Psychology. Ms McAdam found a replacement supervisor in the School of Exercise and Sports Sciences, but was left without a supervisor when he retired in July 2009.
Ms McAdam says that she has a life-long learning disability, which the University has known of since 2005. Ms McAdam claims that she has successfully developed strategies to overcome this disability.
Ms McAdam claimed her treatment by Victoria University and various employees of Victoria University involved breaches of the EO Act and the Charter. Among other breaches, Ms McAdam claimed that the treatment amounted to discrimination by an educational authority, contrary to s37 of the EO Act. She claimed that this discrimination was based on impairment, sex (because she was treated worse than a male PhD student in similar circumstances), and philosophical belief and/or religious belief.
Ms McAdam also alleged that Victoria University breached her Charter rights to equality (s 8), freedom of religion, thought and belief (s 14), privacy (s 13), and freedom of expression (s 15).
Senior Member McKenzie held that Ms McAdam’s claims of sex and impairment discrimination – under both the EO Act and the Charter – were arguable, despite a lack of evidence. Senior Member McKenzie noted that documentary evidence is rare in discrimination cases, and more often a discriminatory reason will be found as a matter of inference.
However, Senior Member McKenzie considered Ms McAdam’s complaints of discrimination on the basis of philosophical or religious belief to be manifestly hopeless. Ms McAdam alleged that Victoria University treated her less favourably because she believes in non-pharmacological therapies for the treatment of dementia, while the University believes in a biomedical model of treatment. Ms McAdam claimed that this constituted discrimination on the basis of her philosophical and religious belief.
Philosophical belief is not an attribute that is explicitly protected by the EO Act. However, Ms McAdam argued that s 32 of the Charter requires a human rights compatible interpretation of the EO Act, which in turn requires that either philosophical belief be added to the list of protected attributes in s 6 of the EO Act, or that the attribute of religious belief or activity be interpreted to include philosophical belief. Ms McAdam relied on the Charter rights to freedom of expression and freedom of thought, religion and belief in support of this argument. Senior Member McKenzie did not agree with this argument, on the basis that it would involve ‘rewriting’ the EO Act, or broadening the attribute of religious belief or activity ‘in a way not contemplated by those words or the EO Act’.
Ms McAdam also claimed that the same conduct constituted discrimination on the basis of a religious belief, because her philosophical support for non-pharmacological treatment stems from a belief system that is ‘partly sacred and partly secular in character’. However, Senior Member McKenzie rejected this argument on the basis that ‘[t]he philosophical beliefs are the last link in a chain, the first link of which is a belief system, part of which includes religious beliefs. This belief is neither directly based on religious beliefs or a characteristic of such beliefs.’ Therefore, the claim did not meet the test for discrimination under the EO Act, which requires that discrimination be ‘on the basis of the attribute itself,…or on the basis of a characteristic that a person with the attribute generally has.’
Similarly, Senior Member McKenzie did not consider the conduct to engage Ms McAdam’s right to freedom of religion under s 14 of the Charter. However, Senior Member McKenzie held that it is arguable that opposing academic views of beliefs engage freedom of thought and belief, and freedom of expression. As a result, Ms McAdam’s Charter claims relating to freedom of thought and belief, and freedom of expression and to hold an opinion, survived. Victoria University did not make any submissions about Ms McAdam’s right to privacy, so this claim also survived.
Senior Member McKenzie held that it is arguable that the University is a public authority, and that it breached its obligation to act compatibly with Charter rights, under s 38.
Ms McAdam was allowed to raise the Charter before VCAT, even though she did not directly raise the Charter in her initial complaint to the Victorian Equal Opportunity and Human Rights Commission. Senior Member McKenzie held that:
While s 39 does not confer an independent right of action, if there is on foot a proceeding claiming that some act or decision of a public authority is unlawful, that act or decision may also be challenged as unlawful because of the Charter…In my view, the use of the words ‘must not’ in the prohibitions of the EO Act mean that it was parliament’s intention that relevant prohibited conduct was unlawful, at least in terms of the EO Act. Section 39 applies to the surviving Charter claims. That section does not impose a time limit as to when the person may add Charter-related unlawfulness to the proceeding.
The decision is at www.austlii.edu.au/au/cases/vic/VCAT/2010/1429.html
Melanie Schleiger is a Senior Lawyer in the Human Rights & Civil Law Service, Victoria Legal Aid, and a Board member of the Human Rights Law Resource Centre