Western Sydney University v Thiab [2023] NSWCA 57 (on Caselaw).
In August 2021, when about to commence a clinical placement at a hospital, Ms Thiab disclosed that she was not vaccinated against the COVID-19 virus and declined to undergo screening swabs for the virus, saying that regular swabbing would cause cancer. She was also reported to have said that she was not going to comply with Public Health Orders and that “Dr Kerry Chant was wrong”. The supervising staff member of the hospital told her she could not attend the clinical placement, and the University formally cancelled that placement.
Ms Thiab was subsequently vaccinated against COVID-19 and presented for a further clinical placement at a vaccination hub in October 2021. However at the beginning of that placement, she expressed doubts to other healthcare staff about the safety and efficacy of COVID-19 vaccinations. She was reported to have said that she had heard or read that “people would die five years after [being given] the vaccine”; that “in Israel the vaccine wasn’t working”; and that her sister was working in a cardiac ward and had seen patients with heart problems after receiving the vaccine. Concerns about Ms Thiab’s statements were relayed by the medical facility to the University. The student’s placement was cancelled, and a disciplinary process initiated against her.
Before the disciplinary process was completed, Ms Thiab commenced proceedings seeking a declaration that the cancellation of her placement contravened s 35 of the Western Sydney University Act 1997 (NSW) (WSU Act). She also sought to restrain the continuation of the disciplinary process, but no interlocutory relief was granted.
By the time of the hearing at first instance, the University had completed the disciplinary process, in which Ms Thiab elected not to participate. That resulted in the imposition of certain disciplinary sanctions.
Primary decision
Although Ms Thiab did not amend her Summons to seek declaratory relief in respect of the imposition of the disciplinary sanctions, the primary judge held that both the cancellation decision and the imposition of disciplinary sanctions were unlawful for breach of s 35 of the WSU Act.
Appeal:
The appeal brought by the University raised three issues for determination: first, whether Ms Thiab’s views or beliefs were “political” within the meaning of s 35 of the WSU Act (the political belief issue); second, whether the cancellation decision and disciplinary sanctions were imposed “because of” Ms Thiab’s relevant views or beliefs (the causation issue); and third, whether, in the circumstances, the making of a declaration that the disciplinary sanctions contravened s 35 of the WSU Act involved a denial of procedural fairness (the procedural fairness issue).
The Court (Bell CJ, Meagher and Leeming JJA) held, granting leave to appeal, allowed the appeal with costs, set aside the orders of the primary judge and dismissed the Amended Summons with costs. The following text is a copy of the Court’s headnote.
As to the political belief issue
- The meaning of the word “political” in the compound expression “political affiliations, views or beliefs” must be divined from the immediate context of s 35, its legislative history and from the broader context of the statute as a whole. Great care must be taken in having regard to the many different uses of the term “political” and cognate terms in different legal and statutory contexts: [110]–[113].
Aid/Watch Incorporated v Commissioner of Taxation (2010) 241 CLR 539; [2010] HCA 42; Victoria v Commonwealth (1975) 134 CLR 81; [1975] HCA 39; Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11; Australian Capital Television v Commonwealth (1992) 177 CLR 106; [1992] HCA 45; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46, considered.
- Whatever the precise metes and bounds of the term “political” in s 35 of the WSU Act, the word at least describes an affiliation, view or belief associated with (including in opposition to) a political party, organisation or sufficiently identifiable political movement, that is to say a body of persons unified and agitating for a change or changes to or implementation of government policy in a particular area or areas: [118].
- The scope of the word “political” as used in s 35 is not so broad as to apply to all views or beliefs connected with public debate about affairs of government, or the conduct of public affairs: [114].
- Section 35 is not a guarantor of free speech, and certainly not a guarantor of free speech at large so as to protect, for example, the expression of views or beliefs about scientific or medical matters. Having regard to the text and legislative history of the section, it is wrong to impute to Parliament an intention to treat any conscientiously held “moral” or “ethical” belief as “political” for the purposes of s 35: [121]–[123].
Ridd v James Cook University (2021) 95 ALJR 878; [2021] HCA 32, considered.
- While a person’s anti-vaccination views may in some circumstances be “political”, the nature of Ms Thiab’s opposition to vaccination was medical and scientific and not political, even on a broad understanding of the term: [124]–[129], [133]–[136].
Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299; Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389, referred to.
- To the extent that Ms Thiab had referred to then Premier Gladys Berejiklian and Chief Medical Officer Kerry Chant, those references related to scientific views which they had expressed. In this context, not every statement made by a politician or a public servant constitutes a political view or belief: [130]–[132].
As to the causation issue
- The causation question presented by s 35 requires identification and characterisation of the true basis, reason or ground for the impugned decision(s). The reason for an adverse action may not be entirely dissociated from a person’s views or beliefs, but that does not mean that the action was taken because of those views or beliefs: [140]–[141].
Toben v Jones (2003) 129 FCR 515; [2003] FCAFC 137; Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165; [1989] HCA 56; Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32, considered.
- There may be situations where adverse action by the University is not taken “because of” a political view or belief per se but rather because of the manner or context in which that view was expressed and the perceived consequences of its expression. In such circumstances, s 35 will not necessarily have been contravened. In each case it is a matter of determining whether the adverse action was actuated by the political affiliation, view or belief itself, or by some other legitimate and bona fide concern: [142].
Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587; Rumble v Partnership (t/as HWL Ebsworth Lawyers) (2020) 275 FCR 423; [2020] FCAFC 37, considered.
- The primary judge erred in holding that the cancellation decision was made because of Ms Thiab’s views and beliefs. The cancellation decision was made because of an apprehension that there was a risk that Ms Thiab would share misinformation with patients about vaccination against COVID-19: [146]–[151].
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32, considered.
- The disciplinary sanctions were similarly not imposed because of Ms Thiab’s views or beliefs, but because of a well-founded concern that Ms Thiab would express those views and beliefs in a manner that would result in danger to patient health: [154]–[159].
As to the procedural fairness issue
- The making of a declaration that the disciplinary sanctions contravened s 35 involved a denial of procedural fairness, in circumstances where Ms Thiab had not advanced an argument to that effect either orally or in written submissions; she had not included such an allegation in her Amended Summons despite the matter having been raised at pre-trial directions; and the relevant university decision-maker was not cross-examined about her reasons for imposing the disciplinary sanctions: [160]–[166].
- As a general but important rule, judges should refrain from making comments seriously critical of witnesses where at least the gist of any adverse criticism has not been put to the witness and where they have not been given an opportunity fairly to respond to the criticism: [170].
Browne v Dunn (1893) 6 R 67; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11; DEJ v Council of the New South Wales Bar Association [2021] NSWCA 72; Scott v Scott [2022] NSWCA 182; Bale & Anor v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226; State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47, referred to.
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