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Thiab v Western Sydney University [2022] NSWSC 760 (on Caselaw).
The plaintiff, Nera Thiab, was a student in one of the degree courses offered by the University, namely Bachelor of Nursing and Midwifery. Ms Thiab successfully finished her course work but needed to complete a certain number of hours in clinical placements in order to satisfy the requirements for the grant of her degree. Clinical placements are usually organised by the staff of the School of Nursing and Midwifery (“SoNM”) within the University. In October last year Ms Thiab’s then placement was cancelled by Ms Leanne Hunt on behalf of the University. Ms Hunt took action against Ms Thiab over Ms Thiab’s attitude, or perceived attitude, to vaccination against Covid-19. Putting the matter neutrally, Ms Thiab had expressed scepticism about the safety of the vaccines which were available at the time.
Section 35 of the Western Sydney University Act 1997 (“WSUA”) prohibits Western Sydney University (the “University”) from discriminating against its students on the ground of religious or political views or beliefs. These proceedings focused on the reach and application of that prohibition.
The Court ultimately concluded at [168] that the University’s actions in cancelling Ms Thiab’s clinical placements on 25 October 2021, and in later imposing sanction 4, which prevented any further placements being allocated, contravened WSUA s 35. It was unlawful for that reason.
A distinction appears to have been drawn between beliefs which were political in nature, and conduct.
However the conclusion on the facts of this matter may need to be approached cautiously. The Court said at [172] – [173]:
Before parting with the case, I wish to reiterate what it does not decide. Nothing in my decision prevents the University from making genuine academic judgments about the quality of its students’ coursework. Creationists who answer questions in a palaeontology exam by quoting the Bible will not be able to complain if the University declines to award them degrees. Nor does my decision necessarily prevent the University from taking action because of clinical or other professional misconduct by it students. In hindsight the University should left concerns about possible clinical misconduct by Ms Thiab to be dealt with, if they arose, in a clinical setting. This was what was suggested both by the RN at the Vaccination Hub and by the University’s own facilitator. It should also be borne in mind, where vaccination is in issue, that NMBA’s statement of position seems to contemplate that complaints will be investigated by AHPRA, rather than the University. But if in the end there is a need for the University to take disciplinary action against its students, based on their conduct and not their beliefs, the University may do so.
[BillMaddensWordpress #1993]
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