Case: Obieta v New South Wales Department of Education and Training [2007] FCA 86
Outcome: followed
Federal Magistrate Driver pointed out that victimisation is dealt with in s 94 of the Sex Discrimination Act . By s 94(2) victimisation for the purposes of the section concerns a person being subjected or threatened with detriment on the ground that they made or proposed to make a complaint under that Act or the HREOC Act or took steps in relation to HREOC. One or more of those matters must be a ' substantial and operative ' factor in the detriment to which Ms Huang was subjected or threatened with (see Obieta v New South Wales Department of Education and Training [2007] FCA 86 at [240] ). Ms Huang did not identify to Driver FM the detriment to which she alleged she was subjected or the acts referred to in s 94(2)(a) (g) of the Sex Discrimination Act , or the course that she took or proposed taking, or the knowledge that the first, second or third respondents had concerning those acts, or the connection between any of those acts and the detriment alleged. The Federal Magistrate pointed out at [122] that Ms Huang had not identified evidence of those matters. His Honour found, from the evidence, that Ms Huang first raised her allegations of sexual harassment at her meeting with Miss Nabke-Hatton on 22 March 2002 and that the respondents did not know of her allegations of unlawful discrimination before that date. His Honour found that there was no evidence that Ms Huang ever raised any assertion of unlawful discrimination before that time. By then her supervisors had already told her that they would not be supporting her re-enrolment. 111 Accordingly His Honour found that there was no unlawful victimisation under the Act. 112 Ms Huang's allegations of discrimination and harassment were considered as part of the decision-making process on her appeal against the cancellation of her enrolment. Federal Magistrate Driver found that these allegations did not appear to have been factors bearing on the decisions that were taken. In any event, the appeal resulted in Ms Huang being offered the opportunity to re-enrol. 113 While there were numerous communications between Ms Huang and the respondents prior to her complaint in March 2002, none could reasonably be interpreted as suggesting an intention to make a complaint within the meaning of s 94(2) of the Sex Discrimination Act (or, for that matter, s 27(2) of the Racial Discrimination Act 1975 (Cth) or s 42(2) of the Disability Discrimination Act 1992 (Cth)). Ms Huang raised the issue of sexual discrimination or disability discrimination after the rejection of the second submission of her literature review on 30 November 2001. The comments predicating the decision that Ms Huang not be permitted to remain as a PhD student were made by Dr Markovic on 31 December 2001 and by Professor Winder on 3 January 2002. That is, all relevant actions taken by Dr Markovic and Professor Winder, and through them the University, of which Ms Huang complains were taken prior to any suggestion of a complaint being made to HREOC or otherwise. 114 In her submissions Ms Huang describes as "victimisation" the attitude towards her during the course of her studies and prior to the decision made by the University that she not be permitted to re-enrol. It is clear from her written submissions that her description of 'victimisation' relates to the time before she first made an allegation to Miss Nabke-Hatton or to the University of sexual harassment, sexual discrimination or disability discrimination. She states in her written submissions that she asserted her complaint about the sexual harassment/discrimination prior to the termination of her PhD but there is no evidence supporting that assertion. The fact remains that, on the evidence, Ms Huang has not shown his Honour to have been in error in concluding that the decision to terminate her PhD preceded any allegation in relation to the Sex Discrimination Act , the Racial Discrimination Act or the Disability Discrimination Act . To the extent that Ms Huang refers to events that occurred after she gave notice of her complaints, it is difficult to identify the victimisation to which she says she was subjected. She has some complaint about the University's process in dealing with her PhD position but it is apparent that the University's decision-making process and consideration of her status as a PhD student were affected by the consideration of her capacity as a PhD student. They were not based on or relate to Ms Huang's complaints of sexual discrimination or harassment against Dr Markovic or Professor Winder. 115 Ms Huang has not established any error in Driver FM's conclusion that there was no unlawful victimisation. I reject, as his Honour did, the contention that there was. 116 Ms Huang has not shown that the Federal Magistrate was in error in dismissing her application or that his Honour erred in any legal, factual or procedural respect. She has not established any of her grounds of appeal. The appeal should be dismissed. I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 18 December 2008 The Appellant appeared in person. Counsel for the Respondents: Ms J Oakley Solicitor for the Respondents: University of New South Wales Solicitor Date of Hearing: 9, 10, 13 October 2008 Date of Final Submissions: 23 October 2008 Date of Judgment: 18 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1930.html