Western Sydney University v Thiab

1. [1]

   THE COURT: This is an application for leave to appeal in respect of a declaration made by Parker J (the primary judge) on 21 June 2022, to the effect that certain disciplinary sanctions imposed by Western Sydney University (the University) on Ms Thiab, a nursing student at the University, were in contravention of s 35 of the Western Sydney University Act 1997 (NSW) (WSU Act) and were therefore invalid. That declaration was made following the publication of his Honour’s reasons for judgment on 10 June 2022: Thiab v Western Sydney University [2022] NSWSC 760 (primary judgment or PJ).

2. [2]

   Section 35 of the WSU Act provides:

3. [3]

   In strongly expressed reasons for judgment, the primary judge found that two actions taken by staff of the University were in contravention of s 35 of the WSU Act.

4. [4]

   The first was a decision by Ms Leanne Hunt (Ms Hunt) on 25 October 2021 to cancel a number of clinical placements to which Ms Thiab had been allocated, and which she was required to complete in order to graduate in her Bachelor of Nursing and Midwifery degree (the cancellation decision). Ms Hunt held the position of Deputy Director of Clinical Education (Nursing) within the School of Nursing and Midwifery.

5. [5]

   The cancellation decision, which it was accepted amounted to a denial of “progression within the University” within the meaning of s 35 of the WSU Act, followed the making of certain statements by Ms Thiab about the safety and efficacy of COVID-19 vaccinations. Ms Thiab contended, and the primary judge accepted, that these statements reflected political views or beliefs within the meaning of s 35 of the WSU Act, and were the cause of the cancellation decision.

6. [6]

   The second act which was found to have involved a contravention of s 35 of the WSU Act was the imposition of one of four disciplinary sanctions on Ms Thiab by Associate Professor Leeanne Heaton on 22 March 2022 (the disciplinary sanctions). Associate Professor Heaton was the Deputy Dean of the School of Nursing and Midwifery. Following internal university disciplinary proceedings, the Professor made a finding of student misconduct against Ms Thiab and subsequently imposed four disciplinary sanctions. One of those sanctions required Ms Thiab to write a reflection statement of 1,500 words on, among other things, how she had demonstrated unprofessional behaviour whilst on placement and what she would do if she were placed in the same situation again (the fourth disciplinary sanction). Compliance with this sanction was expressed to be a precondition to Ms Thiab becoming eligible to be reallocated to a clinical placement.

7. [7]

   The primary judge found the imposition of this sanction also to have contravened s 35 of the WSU Act, again because he considered it to be based upon a response to Ms Thiab’s beliefs about vaccination against COVID-19, which the primary judge characterised as “political” within the meaning of s 35 of the WSU Act. His Honour did not make any findings about the other three sanctions although, as will be seen, the declaration he ultimately made was directed to all of the sanctions imposed by Associate Professor Heaton.

8. [8]

   Although the primary judge found that both the cancellation decision and the fourth disciplinary sanction were unlawful, the terms of the declaration which was ultimately made on 21 June 2022 extended only to the disciplinary sanctions. The form of the declaration was as follows:

9. [9]

   By way of Summons filed on 19 July 2022, the University and Ms Hunt sought leave to appeal from the declaration made by the primary judge. Leave to appeal is required because the relief sought by Ms Thiab, and awarded by the primary judge, is not capable of valuation for the purposes of the monetary threshold in s 101(2)(r) of the Supreme Court Act 1970 (NSW).

10. [10]

    The key arguments raised in the draft Notice of Appeal concerned three issues: first, whether Ms Thiab’s views or beliefs about vaccination could properly be characterised as political; second, whether it was those beliefs that caused the cancellation decision and the disciplinary sanctions; and third, whether the primary judge’s finding that the imposition of disciplinary sanctions was a breach of s 35 of the WSU Act involved a denial of procedural fairness.

11. [11]

    Leave to appeal should be granted and the appeal allowed. The views or beliefs that were expressed by Ms Thiab were not “political” and were not the cause of the cancellation decision or the disciplinary sanctions on the proper construction of s 35 of the WSU Act. Further, the making of the declaration in relation to the imposition of disciplinary sanctions involved a denial of procedural fairness because the University was not given proper notice that the disciplinary sanctions were being challenged by reference to s 35 of the WSU Act.

Factual and procedural background

1. [12]

   The factual background to the dispute was discussed by the primary judge at PJ [47]–[68]. Due to the nature of the arguments agitated on appeal, it is necessary to refer both to this background and the procedural history of the proceedings at first instance in some detail.

2. [13]

   Ms Thiab was enrolled in a Bachelor of Nursing and Midwifery at the University. At the time of the hearing before the primary judge, she had completed the coursework component of her degree, but was required to complete a certain number of hours of clinical placements in order to graduate and be accredited as a Registered Nurse.

3. [14]

   The University and different health districts enter into what are styled “facility agreements” in relation to training student nurses. Under these agreements, the facility has the right to remove a student at any time. Universities compete with each other for the number of student placements allocated in any one year at particular facilities.

4. [15]

   The peak professional and regulatory body for nurses is the Nursing and Midwifery Board of Australia (NMBA). Three publications of the NMBA were in evidence before the primary judge, namely, its Code of Conduct for Nurses (the Code of Conduct), a Standard of Practice dated June 2016, and a position statement on Nurses, Midwives and Vaccination dated October 2016.

5. [16]

   In late 2021, Ms Thiab was scheduled to undertake clinical placements at St George Hospital, Westmead Children’s Hospital and Liverpool Hospital. On the first day of her placement at St George Hospital, on 30 August 2021, she had a conversation with Ms Reardon, a staff member engaged by the Hospital to co-ordinate clinical nursing placements. During that conversation, Ms Thiab broadly expressed doubts about the safety and efficacy of vaccination against COVID-19. At that time, Ms Thiab was not vaccinated against COVID-19 and was reluctant to be vaccinated. She also declined to undergo rapid testing for COVID-19. According to Ms Reardon, Ms Thiab said that she “was not going to comply with [the] Public Health Orders”, as a result of which Ms Reardon decided that she could not attend the clinical placement.

6. [17]

   Later that day, Ms Reardon reported the incident in an email to a member of staff at the School of Nursing and Midwifery, which was forwarded to Ms Hunt. Soon after, Ms Hunt sent an email to Ms Thiab, advising her that she had cancelled the remaining clinical placements that had been scheduled for her. A series of emails was then exchanged between Ms Thiab, Ms Hunt, the Clinical Placement Team within the School of Nursing and Midwifery, and Associate Professor Heaton, which will be referred to in due course.

7. [18]

   On 10 September 2021, Ms Thiab sent an email to the School of Nursing and Midwifery, providing evidence that she was, by then, vaccinated against COVID-19. She was allocated to a new clinical placement at the Macquarie Fields Vaccination Hub (the Vaccination Hub), which was to begin on 25 October 2021.

8. [19]

   On the first day of that placement, Ms Thiab had a discussion with a registered nurse working at the Vaccination Hub during which she again expressed doubt about the safety and efficacy of vaccination against COVID-19. That nurse reported the discussion to the facilitator of the clinical placement, Ms Maria Almeida, who in turn reported the incident to Ms Hunt. When Ms Hunt became aware of the report, she instructed the staff at the Vaccination Hub to send Ms Thiab home. Shortly thereafter, she sent Ms Thiab an email to advise her that she had decided to terminate her placement, and indicated that she would refer the incident to the Deputy Dean of the School of Nursing and Midwifery, Associate Professor Heaton. She did so the following day, and a disciplinary investigation was initiated, conducted by Associate Professor Heaton.

9. [20]

   On 22 November 2021, Ms Thiab filed a Summons in the Equity Division of the Supreme Court naming the University and Ms Hunt as defendants, together with an affidavit which had been sworn on 19 November 2021.

10. [21]

    The Summons sought a declaration that the termination of Ms Thiab’s clinical placement was unlawful, “including being unlawful for being in breach of s 35 of the WSU Act.” Injunctive relief was also sought, including to restrain the hearing of the disciplinary proceedings.

11. [22]

    Ms Thiab attended a preliminary meeting with Associate Professor Heaton relating to the internal disciplinary proceedings. She then declined to engage any further in the disciplinary process on the basis that she would address the complaint in her evidence in the Supreme Court proceedings. The disciplinary proceedings continued nonetheless, and a hearing was held in Ms Thiab’s absence on 8 March 2022, resulting in a report and decision on 22 March 2022 concerning the allegation of student misconduct (the disciplinary report).

12. [23]

    Ms Thiab lodged an internal appeal against the imposition of disciplinary sanctions on 22 April 2022.

13. [24]

    The Summons was amended on 28 April 2022. Although the form of the declaration sought remained unchanged from that which had originally been sought, two of the prayers for injunctive relief were relevantly amended.

14. [25]

    By the Amended Summons, Ms Thiab sought (among other things) an order requiring the University and Ms Hunt to take all steps to reinstate her in her clinical placement, and an order restraining the University and Ms Hunt from taking any further steps to terminate her clinical placement.

15. [26]

    The proceedings came on for hearing on 16 May 2022 following directions hearings on 7, 14 and 20 April 2022. It will also be necessary to refer to these directions hearings in greater detail below, as what occurred at them was relevant to the denial of procedural fairness aspect of the appeal.

16. [27]

    Against this broad overview of the background to the dispute and proceedings, it is necessary to set out in closer detail the circumstances which led to the cancellation decision and the disciplinary sanctions, and, in particular, the interactions between Ms Thiab and other health staff on 30 August and 25 October 2021 and the events which followed.

17. [28]

    The evidence concerning the cancellation of Ms Thiab’s clinical placements included:

    1. (1)

       a number of emails between Ms Hunt, Ms Thiab, the University’s Clinical Placement Team and Associate Professor Heaton;

    2. (2)

       a “Clinical ‘At Risk’ Report” completed by a clinical placement facilitator, Ms Almeida, on 25 October 2021;

    3. (3)

       a referral form sent by Ms Hunt to Associate Professor Heaton on 26 October pursuant to the University’s internal Misconduct Rule, containing an allegation of general misconduct against Ms Thiab;

    4. (4)

       an affidavit sworn by Ms Thiab on 19 November 2021; and

    5. (5)

       an affidavit sworn by Ms Hunt on 3 February 2022.

18. [29]

    Shortly after Ms Thiab’s conversation with Ms Reardon at St George Hospital on 30 August 2021 referred to in [16] above, Ms Reardon sent an email to Ms Hunt which included the following:

19. [30]

    At 2.55pm that day, Ms Hunt sent an email to Ms Thiab, in which, drawing upon Ms Reardon’s earlier email, she wrote:

20. [31]

    At 3.30pm, Ms Thiab sent an email to the Clinical Placement Team at the School of Nursing and Midwifery, in which she wrote:

21. [32]

    At 6.33pm that evening, Ms Thiab sent an email to Ms Hunt in which she wrote:

22. [33]

    The above email was forwarded to Associate Professor Heaton, who sent an email to Ms Thiab several days later, on 2 September 2021, in which she wrote:

23. [34]

    In Ms Thiab’s affidavit of 19 November 2021, she described the events of 30 August. The relevant parts of that affidavit, which were not the subject of any cross-examination, were set out at PJ [48]–[49]:

24. [35]

    The account contained in Ms Thiab’s affidavit was of course not available to Associate Professor Heaton at the time of the disciplinary proceedings nor to Ms Hunt at the time of the cancellation decision.

25. [36]

    As noted above, Ms Thiab resumed her clinical placements on 25 October 2021 at the Vaccination Hub, having been vaccinated for COVID-19 in the interim. Following Ms Thiab’s discussion with a nurse working at the Vaccination Hub (see [19] above), the facilitator of the clinical placement, Ms Almeida, completed a form entitled “Clinical ‘At Risk’ Report”. That form records that the discussion occurred at 8.35am, and that the form was completed at 9.20am. The form was as follows (noting that RN was shorthand for Registered Nurse and NUM shorthand for Nursing Unit Manager):

26. [37]

    At 9.28am, Ms Hunt sent an email to Ms Thiab, in which she wrote:

27. [38]

    At 2.57pm that afternoon, Ms Thiab replied:

28. [39]

    Ms Thiab’s affidavit of 19 November 2021 again contains her account of the events at the Vaccination Hub on 25 October 2021. As reproduced (with minor revisions) by the primary judge at PJ [51], her account (again unchallenged) was as follows:

29. [40]

    The following day, on 26 October 2021, Ms Hunt made a report in accordance with the University’s internal Student Misconduct Rule, containing an allegation of student misconduct against Ms Thiab. The Student Misconduct Rule contemplates three categories of misconduct, being academic, research and general misconduct. The allegation against Ms Thiab was one of general misconduct. Ms Hunt’s report identified the “details of incident” as follows:

30. [41]

    As has been noted, Ms Thiab commenced proceedings in the Supreme Court several weeks later, on 22 November 2021. The nature of these proceedings and the relief sought will be discussed shortly but it is relevant to note that, by prayer 4 of the Summons, Ms Thiab sought to have the disciplinary proceedings restrained.

31. [42]

    On 17 January 2022, Ms Thiab was notified by the University that a preliminary investigation would be undertaken by Associate Professor Heaton in accordance with the University’s Student Misconduct Rule. A letter from Associate Professor Heaton was enclosed, which contained details of the allegation made against Ms Thiab (the notice of preliminary investigation). In that notice, Associate Professor Heaton invited Ms Thiab to a meeting on 25 January 2021 to discuss the allegation, “so that you have an opportunity to respond and provide your version of events.”

32. [43]

    Ms Thiab replied on 19 January 2022, requesting that the meeting be rescheduled to February to “allow… a sufficient amount of time to analyse the evidence”.

33. [44]

    The preliminary meeting was then rescheduled to 9.00am on 8 February 2022. Ms Thiab attended that meeting via audiovisual link. In her affidavit dated 18 February 2022, Ms Thiab gave evidence that at that meeting, she told the panel that she was not in a position to comment on issues before the Supreme Court, that she would provide her responses in her affidavits to the Court, and that she wanted the disciplinary proceedings to be deferred until the matter before the Court was finalised. This account is corroborated by Associate Professor Heaton’s final disciplinary report.

34. [45]

    At 9.43am that morning, Ms Thiab’s solicitors sent an email to the solicitors for the University, which included the following:

35. [46]

    On 11 February 2022, the University contacted Ms Thiab, enclosing a letter from Associate Professor Heaton dated 8 February 2022. In that letter, Associate Professor Heaton rejected a suggestion that she had a conflict of interest because she had affirmed an affidavit in the Supreme Court proceedings (that affidavit had been filed on 1 February). In this context, Associate Professor Heaton said:

36. [47]

    An exchange of correspondence then took place between Associate Professor Heaton and Ms Thiab. In this exchange, Ms Thiab again indicated that she would not engage with the disciplinary process by reason of the Supreme Court proceedings, and requested that the disciplinary process be deferred until those proceedings were finalised. Associate Professor Heaton declined to delay the disciplinary process.

37. [48]

    On 22 February 2022, Ms Thiab was given notice that a Misconduct Hearing would take place on 8 March 2022. She provided a written reply reiterating that she would not engage in the disciplinary process while the Supreme Court proceedings were pending. On 3 March 2022, the University advised her that if she did not attend the Misconduct Hearing, it would proceed in her absence. Ms Thiab did not attend the hearing on 8 March, and Associate Professor Heaton determined the allegation in her absence in accordance with the University’s Student Misconduct Rule.

38. [49]

    As has been noted, Associate Professor Heaton issued her disciplinary report on 22 March 2022. It is necessary to reproduce several key passages of that report.

39. [50]

    Under the heading “Details of allegation(s)”, the report set out the allegations against Ms Thiab as follows:

40. [51]

    The report then set out some six pages of factual particulars of the allegations against Ms Thiab, encompassing events from May 2020 to October 2021. It also included a lengthy list of documents that were considered in the course of the disciplinary process. These relevantly included the email correspondence between Ms Thiab, Ms Hunt, the School of Nursing and Midwifery and Associate Professor Heaton on 30 August and 2 September 2021 (see [29]–[33] above); the “Clinical ‘At Risk’ Report” dated 25 October 2021 (see [36] above); and the exchange of emails between Ms Hunt and Ms Thiab on 25 October 2021 (see [37]–[38] above). Elsewhere, referring to Ms Thiab’s email to Ms Hunt on 25 October 2021, the report stated, “[Ms Thiab] provided a written response to Ms Hunt [that] has been taken into consideration in this matter”.

41. [52]

    Under the heading “Summary of analysis of evidence and submissions”, the disciplinary report recorded that “the following was noted” at the hearing:

42. [53]

    Under the heading “Decision”, the report recorded Associate Professor Heaton’s conclusion that “the allegations are sustained”.

43. [54]

    Associate Professor Heaton ultimately imposed four sanctions on Ms Thiab. These were, first, a reprimand, second, a “direction to apologise”, third, a direction to provide a written undertaking “to not repeat or continue the behaviour that is the subject of the misconduct finding”, and fourth, a direction to undertake a short course or instructive program and to write a 1,500 word reflection. It was the imposition of this fourth sanction that the primary judge found to have contravened s 35 of the WSU Act. The sanction was as follows:

44. [55]

    As has been noted, Ms Thiab lodged an internal appeal against the disciplinary sanctions on 22 April 2022. According to the University’s Student Misconduct Rule, an internal appeal lies to a three-member appeals committee, and may be brought on grounds including that the finding of misconduct was made in breach of the requirements of procedural fairness or of a material requirement of the Student Misconduct Rule. At the time of the hearing before the primary judge, that internal appeal had not yet been heard.

45. [56]

    It is convenient at this stage to set out several key elements of the proceedings before the primary judge, together with relevant communications between the parties, which were relied upon by the University in support of its ground of appeal asserting a denial of procedural fairness. The matters of context discussed in this section broadly relate to the question of whether the University was fairly put on notice that the lawfulness of the disciplinary sanctions would be in issue.

46. [57]

    At the pre-trial directions hearing on 7 April 2022, some two weeks after the imposition of the disciplinary sanctions, a discussion took place about the way in which Ms Thiab’s case addressed the disciplinary sanctions. The primary judge asked a number of questions of Mr Walsh, who appeared for the University and Ms Hunt, about the nature of the disciplinary sanctions and the internal appeal process. After this exchange, Mr Walsh agreed with his Honour’s summary of the University’s position, which was as follows:

47. [58]

    The primary judge then asked Mr Mando, who appeared for Ms Thiab, why, in light of the University’s position concerning the disciplinary sanctions, Ms Thiab’s case concerned “what’s happened in the past”. Mr Mando’s response was that “this sanction [that is, the fourth disciplinary sanction] emanated from the cancellation in particular of the second placement that was totally unjustified.” The following exchange then took place:

48. [59]

    Shortly afterwards, the primary judge questioned Mr Mando about the practical utility of a declaration that the cancellation decision was unlawful:

49. [60]

    Soon after, in response to questioning from the primary judge, Mr Walsh said that the University’s position was that the internal appeal process should be completed before the matter proceeded before the primary judge. His Honour then said to Mr Mando:

50. [61]

    When asked to clarify the nature of instructions that should be sought, the primary judge said the following:

51. [62]

    Just under one week later, on 13 April 2022, Ms Thiab filed supplementary written submissions. Those submissions broadly addressed the Supreme Court’s jurisdiction to review disciplinary decisions of public universities, and, relevantly for present purposes, raised a challenge to Associate Professor Heaton’s disciplinary decision on the ground of bias. No challenge was, however, mounted or formulated to the disciplinary sanctions or Associate Professor Heaton’s decision by reference to s 35 of the WSU Act.

52. [63]

    The matter returned before the primary judge the following day, on 14 April 2022, for a further directions hearing. At this stage, the matter was listed for final hearing the following week, on 21 April 2022. Shortly after the matter was called, Mr Walsh raised an objection to those parts of Ms Thiab’s supplementary submissions which challenged the disciplinary decision. In this context, he said the following:

53. [64]

    An exchange then took place between Mr Mando and the primary judge about the form of the orders sought by Ms Thiab, and whether it would be necessary to challenge the disciplinary sanctions. The primary judge expressed the view that a declaration in itself would be futile, and the appropriate order to be sought by Ms Thiab was an order of mandamus requiring the University to reallocate her to a clinical placement. His Honour then said:

54. [65]

    The primary judge directed Mr Mando to formulate a proposed amended summons, and then formally seek leave to amend the summons. His Honour also relisted the final hearing from 21 April to 16 May 2022, so as to allow the University time to prepare to meet Ms Thiab’s amended summons.

55. [66]

    Ms Thiab’s proposed Amended Summons appears to have been served on the solicitors for the University on 19 April 2022. It did not however formulate any amendment of the kind the primary judge had indicated would be appropriate, namely framing an alternate declaration in relation to the disciplinary sanctions. Later that day, the University’s solicitors sent a letter to Ms Thiab’s solicitors, noting that the proposed Amended Summons did not seek to challenge the lawfulness of the disciplinary decision. That letter was as follows:

56. [67]

    As already noted, the Summons was amended on 28 April 2022. Only prayers 2 and 3 were amended, so as to seek:

57. [68]

    The matter proceeded to final hearing some two and a half weeks later, on 16 May 2022. For present purposes, two observations should be made about what occurred at that hearing.

58. [69]

    First, an exchange took place between the primary judge and Mr Walsh in the context of oral argument about the admissibility of parts of Ms Thiab’s affidavit of 21 April 2022. Mr Walsh objected to a section of Ms Thiab’s affidavit which contained evidence about the University’s disciplinary investigation into Ms Thiab, on the basis that it was irrelevant to the matters in dispute. In support of this objection, Mr Walsh emphasised that the Amended Summons did not disclose “what precisely it is about the misconduct process that the plaintiffs seeks to attack”. The following exchange then took place:

59. [70]

    There was some debate in the course of the oral argument on the appeal as to whether the word transcribed as “reflection” may in fact have been “infraction” but what is significant about this passage is that the primary judge appeared to take the view that it was open to Ms Thiab to seek to make the case that the disciplinary proceedings involved a breach of s 35 of the WSU Act.

60. [71]

    Second, in the course of Associate Professor Heaton’s cross-examination, she was not directly asked about her reasons for imposing the disciplinary sanctions. At one point during cross-examination, after a series of questions about the incident at St George Hospital on 30 August 2021, the primary judge intervened, asking:

61. [72]

    Associate Professor Heaton was not asked any similar questions about whether she considered the incident on 25 October 2021 to raise issues of public safety.

62. [73]

    In the course of oral argument on the appeal, Mr Braham SC for Ms Thiab accepted that at first instance her then counsel did not make any written or oral submissions to the effect that the disciplinary sanctions imposed involved a breach of s 35 of the WSU Act. The following exchange should be noted:

The primary judgment

1. [74]

   In the primary judge’s reasons, after a brief chronology of events, his Honour set out key extracts from the documentary evidence which have also been set out above.

2. [75]

   As Ms Thiab was not cross-examined and no other witnesses gave evidence about the conversations which took place on 30 August and 25 October 2021, it was common ground that the primary judge was required to accept the substance of Ms Thiab’s affidavit evidence concerning those conversations: PJ [53]. The primary judge summarised these extracts from the affidavit evidence as showing that the discussions Ms Thiab engaged in “at the St George Hospital on 30 August and at the Vaccination Hub on 25 October… merely rais[ed] questions about the safety of Covid-19 vaccination in a moderate and unexceptionable way.”

3. [76]

   The primary judge then, under the heading “Disciplinary Decision”, set out key aspects of Associate Professor Heaton’s disciplinary report of 22 March 2022. After reproducing the terms of the fourth sanction (see [54] above), his Honour made the following remarks at PJ [64]–[66] about the evidence Associate Professor Heaton gave in cross-examination:

4. [77]

   Before turning to consider whether the University’s conduct contravened s 35 of the WSU Act, the primary judge considered the nature of the relief available to Ms Thiab for a breach of s 35, if made out. His Honour found that public law remedies were not available to Ms Thiab, as the internal functioning of the University did not involve the exercise of statutory power. Rather, his Honour considered that the Court had the power to grant equitable injunctive relief in aid of statutory rights, and that declaratory relief must also be available: PJ [87]–[89]. No challenge was made to that aspect of his Honour’s decision.

5. [78]

   The primary judge then addressed a submission advanced by the University to the effect that the Court should decline to grant relief in respect of the disciplinary sanctions imposed by Associate Professor Heaton. This submission had been advanced on two bases: first, that no challenge to the disciplinary sanctions had been foreshadowed in Ms Thiab’s summons, and second, that Ms Thiab’s complaints about the disciplinary sanctions could be agitated in her internal appeal, which was yet to be heard. The primary judge dealt with this submission at PJ [90]–[95] as follows:

6. [79]

   His Honour proceeded on the basis that three elements had to be made out in order for Ms Thiab to establish a contravention of s 35 of the WSU Act. First, that the cancellation decision and disciplinary sanctions amounted to a denial of progression within the University, of eligibility to graduate, or of “any benefit, advantage or privilege” of the University: PJ [74]–[75]. Second, that the act was taken “because of” Ms Thiab’s affiliations, views or beliefs: PJ [96]. Third, that Ms Thiab’s beliefs (or attributed beliefs) which formed the basis for the cancellation decision and the disciplinary sanctions were “political” in nature, within the meaning of that term in s 35 of the WSU Act: PJ [129].

7. [80]

   In relation to the first of these elements, the primary judge held at PJ [74] that the refusal to organise clinical placements was a denial of “progression within the University” and of a “benefit, advantage or privilege” of the University for the purposes of s 35. Similarly, his Honour considered that the fourth sanction imposed by Associate Professor Heaton engaged this aspect of s 35, as the effect of that sanction was that “[n]o placements will be arranged unless Ms Thiab completes the 1,500 word reflection statement imposed on her by sanction 4”. His Honour considered it unnecessary to decide whether the other three sanctions engaged s 35: PJ [75].

8. [81]

   This aspect of the primary judge’s decision was not challenged on appeal.

9. [82]

   The primary judge addressed the second of the elements at PJ [96]–[128], concluding that the University’s actions against Ms Thiab were taken “because of” views and beliefs on her part. In describing the approach to be taken to this enquiry, his Honour said the following:

10. [83]

    In this context, the University advanced a submission at first instance to the effect that Ms Hunt and Associate Professor Heaton took action against Ms Thiab not because of her views or beliefs, but because of their belief that her conduct contravened relevant professional regulations. In support of this submission, the University relied upon clauses 4.1(i), 7.1(a) and 7.2(c) of the Code of Conduct, in addition to the NMBA’s position statement on vaccination. For present purposes it is unnecessary to refer to these regulations in any detail.

11. [84]

    The primary judge rejected the University’s submission. His Honour held that the clauses of the Code of Conduct relied upon by the University did not apply in the context of private discussions between Ms Thiab and other health staff: PJ [108]. In this context, his Honour said (PJ [105]):

12. [85]

    Rather, his Honour concluded that Ms Hunt and Associate Professor Heaton took action against Ms Thiab because they believed that Ms Thiab held “anti-vaxxer beliefs”. This conclusion was expressed at PJ [126]–[128] in the following way:

13. [86]

    It should be noted parenthetically that, to the extent that these paragraphs were critical of both Ms Hunt and Associate Professor Heaton in terms of the quality of their investigation of the facts relating to Ms Thiab’s conduct, that was not an issue in the proceedings nor was it a matter put to either Ms Hunt or Associate Professor Heaton in cross-examination. This aspect of the proceedings at first instance is considered more fully at [160]ff below.

14. [87]

    Returning to the judgment at first instance, the primary judge then addressed the third of the elements: namely, whether the beliefs imputed to Ms Thiab, which his Honour considered to form the basis for the University’s actions, were “political” for the purposes of s 35 of the WSU Act.

15. [88]

    His Honour first considered s 35’s statutory context, reaching the conclusion that a “a wide meaning should be given to the term ‘political’ in s 35”. His Honour’s reasons for that conclusion were set out at PJ [143]–[150]:

16. [89]

    The primary judge then turned to consider whether s 35 was to be applied on the basis of Ms Thiab’s actual beliefs, or the University’s perception of her beliefs. His Honour found that the relevant views or beliefs for the purposes of s 35 are those which the University attributed to Ms Thiab: PJ [154]-[156]. That aspect of his Honour’s analysis was not ultimately challenged on appeal.

17. [90]

    Having identified the relevant views or beliefs which formed the basis for the University’s impugned actions, his Honour then addressed, and rejected, the University’s submission that Ms Thiab’s relevant beliefs were scientific, rather than political, in nature. His Honour’s reasons for rejecting this submission were set out at PJ [160]–[167]:

18. [91]

    One final observation should be made about the reasons of the primary judge as to the appropriate orders. As already noted, the declaration made by the primary judge applied only to the disciplinary sanctions imposed by Associate Professor Heaton, and not to the cancellation decision made by Ms Hunt. This accords with remarks made by the primary judge at PJ [90] to the effect that the cancellation decision had been “overtaken by events”:

Grounds of appeal

1. [92]

   The University sought leave to appeal from the decision of the primary judge on essentially three grounds, which may be summarised as follows:

   1. (1)

      The primary judge erred in finding that the cancellation decision was made and the disciplinary sanction was imposed because of anti-vaxxer views or beliefs attributed to the respondent which were political in nature for the purposes of s 35 of the WSU Act.

   2. (2)

      The primary judge ought to have found that:

   3. (3)

      The primary judge erred in finding that a contention that the sanctions imposed by the first appellant on 22 March 2022 contravened s 35 of the WSU Act was fairly open, as:

2. [93]

   These grounds in turn raise three issues for determination:

   1. (1)

      whether Ms Thiab’s views or beliefs were “political” within the meaning of s 35 of the WSU Act (the political belief issue);

   2. (2)

      whether the disciplinary sanctions (and anterior cancellation decision) were imposed “because of” Ms Thiab’s relevant views or beliefs, within the meaning of s 35 of the WSU Act (the causation issue); and

   3. (3)

      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).

Jurisdiction

1. [94]

   There was no issue, in this Court, that injunctive and declaratory relief lay for a contravention of s 35 of the WSU Act. It may be useful to elaborate why that is so. For many years, and indeed when the University of Western Sydney (as it was originally called) was established in 1988, universities in New South Wales comprised a body corporate constituted by a board of governors, Convocation, staff, graduates and students. The affairs of that body corporate were, traditionally, within the jurisdiction of the University Visitor: see s 29 of the University of Western Sydney 1988 Act (NSW) (the 1988 Act) as originally enacted and Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7 at [40] and Thomas v University of Bradford [1987] AC 795. Some aspects of the Visitor’s jurisdiction were exclusive.

2. [95]

   As originally enacted (in a narrower form than s 35 at the time of the events giving rise to this appeal), s 27 provided that:

3. [96]

   Section 27 was a prohibition, reflecting an incapacity of the University, which would have fallen within the Visitor’s original jurisdiction: see Re Macquarie University; Ex Parte Ong (1989) 17 NSWLR 113, a decision of Hope JA appointed as Assessor to assist the Visitor (the Governor of New South Wales) in the determination of a complaint that Dr Ong had been denied natural justice when removed from office. But the role of Visitor of New South Wales Universities was in very large measure reduced to a merely ceremonial role in around 1994: see P Kamvounias and S Varnham, “Legal Challenges to University Decisions Affecting Students in Australian Courts and Tribunals” (2010) 34 Melbourne University Law Review 140 at 148. In the case of what was then known as the University of Western Sydney, Schedule 1 of the University Legislation Amendment Act 1994 (NSW) inserted a new s 29 into the 1988 Act which stated, “The Governor is the Visitor of the University but has ceremonial functions only”. That section has now become s 19 of the present WSU Act.

4. [97]

   The repeal of the substantive role of the Visitor left no inhibition (if there was one) preventing the exercise of this Court’s supervisory jurisdiction in respect of exercises of public power such as that controlled by s 35.

5. [98]

   The litigation proceeded, favourably to Ms Thiab, on the basis that a contravention of s 35 rendered the decision invalid. As is indicated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91], not all acts done in breach of a condition regulating the exercise of a statutory power are necessarily invalid and of no effect. In the absence of submissions on the point, it is convenient to proceed on the same basis.

6. [99]

   Thus it becomes necessary to ascertain the legal meaning of the words “because of his or her religious or political affiliations, views or beliefs” as they are used in s 35 of the WSU Act. It was not in dispute, and is plainly correct, that the legal and practical effect of the disciplinary sanctions imposed on 22 March 2022 was to deny Ms Thiab progression within the University.

Consideration: the political belief issue

1. [100]

   Section 35 of the WSU Act finds near-identical analogues in the legislation governing the University of Sydney, [1] the University of New South Wales, [2] Charles Sturt University, [3] Macquarie University, [4] the University of Technology Sydney, [5] the University of Newcastle, [6] the University of Wollongong, [7] the Australian Catholic University, [8] Southern Cross University [9] and the University of New England. [10] None of these provisions appears to have been judicially considered.

2. [101]

   In discussing the statutory context to s 35 of the WSU Act, the primary judge said the following:

3. [102]

   Although the provisions cited in the above passage are indeed substantially equivalent to ss 35 and 36 of the WSU Act, it is not entirely correct to say that s 35 was “taken from” those provisions. As has been noted above, s 35 of the WSU Act appears to be the successor provision of a similar provision in an earlier statute which established the Western Sydney University, namely s 27 of the 1988 Act: see [95] above. The primary judge was correct to note at PJ [143] that s 27 and ultimately s 35 of the WSU Act reflected an expansion from a prohibition in other university statutes which had been confined to religion, derived from the Macquarie University Act 1964 (NSW) which itself had been overseen by a Legal Committee chaired by the Hon. Rae Else-Mitchell (see B Mansfield and M Hutchinson, Liberality of Opportunity: A History of Macquarie University 1964–1989 (Hale & Iremonger Pty Ltd, 1992), p 29.

4. [103]

   Section 29 of the Macquarie University Act 1964 had provided that:

5. [104]

   In the second reading speech in support of the Macquarie University Act 1964, the Minister for Education noted that the bill “followed in substantial form the provisions of the University of New England Act, 1953”, but that “there are some different provisions to which attention should be invited.” One of these was that “[c]lause 29, the guarantee against discrimination, involves political as well as religious beliefs.” [12]

6. [105]

   Nothing in the explanatory notes or second reading speeches to the WSU Act or the 1988 Act expressly sheds light upon the legislative intention underpinning s 35 although, as has been seen above, the legislative history shows a cautious, incremental expansion in the scope of the section and its precursors.

7. [106]

   Perhaps the most significant matter to be drawn from the legislative history is what is not protected. When the Parliament’s attention was directed, at least twice, to expanding the scope of the protection afforded by the precursors to s 35, no attempt was made to incorporate a provision relating to freedom of opinion and expression. Nor was there a prohibition upon discrimination linked to race or sex. In that respect, s 35 is narrower that some other Australian counterparts; see for example s 6 of the Bond University Act 1987 (Qld):

8. [107]

   Bearing in mind the limited subject matters of religious and political affiliations, views or beliefs in s 35, and the cautious way in which that provision has expanded, it may be doubted that the prohibition should be construed broadly so as to extend to other subject matters such as freedom of expression or freedom of opinion more generally.

9. [108]

   But one thing that emerges clearly from s 35 is that it is restricted in its operation to action taken by the University because of a person’s affiliations, views or beliefs. That is conceptually distinct from action taken because of a person’s conduct. While there may, of course, be a clear link between religious or political beliefs on the one hand and a person’s conduct (the example mentioned in argument was that of a proselytising Christian), s 35 is directed to the former, not the latter.

10. [109]

    The abstract question as to the meaning of the word “political” may be open to broad philosophical debate. So too the term “religious”, also used in s 35 of the WSU Act.

11. [110]

    The adjective “political” attracts a number of widely varying meanings in law. One is associated with the long-standing “political objects” doctrine of charitable trusts considered in Aid/Watch Incorporated v Commissioner of Taxation (2010) 241 CLR 539; [2010] HCA 42 and which was overturned by constitutional considerations in that case. Another is the “political questions” doctrine associated with justiciability (cf Victoria v Commonwealth (1975) 134 CLR 81; [1975] HCA 39; Gerhardy v Brown (1985) 159 CLR 70; [1985] HCA 11). A third – which postdates the enactment of s 35 and its counterparts in universities – is the implied freedom of political communication first recognised in Australian Capital Television v Commonwealth (1992) 177 CLR 106; [1992] HCA 45 and elaborated or altered in subsequent cases.

12. [111]

    It by no means follows that the meaning attributed to the term “political” in those different contexts is picked up by s 35. There are very few things which may not be regarded as “political” in an extended sense. For example, an early, broad statement of the width of the concept in the context of the implied freedom was made in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46 at 122 by Mason CJ, Toohey and Gaudron JJ:

13. [112]

    As in any exercise of statutory interpretation, great care must also be taken in having regard to the use of the term “political”, and cognate terms such as “political opinion” and “political offence”, in different statutory contexts: see e.g. Fair Work Act 2009 (Cth), s 351 (“political opinion”); Discrimination Act 1991 (ACT), s 7(n) (“political conviction”); Equal Opportunity Act 2010 (Vic), s 6(k) (“political belief or activity”); Anti-Discrimination Act 1992 (NT), s 19(n) (“political opinion, affiliation or activity”); Anti-Discrimination Act 1998 (Tas), s 16(m) (“political belief or affiliation”); Equal Opportunity Act 1984 (WA), s 53 (“religious or political conviction”); Anti-Discrimination Act 1991 (Qld), s 7(j) (“political belief or activity”); Extradition Act 1988 (Cth), s 7(a) (“political offence”).

14. [113]

    Ultimately, the meaning of the word “political” in the context of the compound expression “political affiliations, views or beliefs” must be divined from the immediate context of their use in s 35, and from the broader context of the statute as a whole.

15. [114]

    It was submitted on behalf of Ms Thiab that “[f]or the purposes of section 35, the term [“political”] describes views or beliefs connected with public debate about affairs of government, or the conduct of public affairs”. That submission is, in our view, far too broad. The phrase “connected with” is also quite uncertain in its ambit. In oral argument, counsel for the University responded that “however broad ‘political’ is, it isn't broad enough to embrace discussion about medical and scientific matters of the kind that arose in this case, where there was discussion as to how sound or not sound certain scientific views were.”

16. [115]

    The meaning of the word “political” in s 35 of the WSU Act is at least informed by the fact that it qualifies “affiliations” as well as “views or beliefs”, although the reference to “affiliations” was a later addition to the section. Nevertheless, the word “political” as it appears in s 35 should be construed so that it bears a consistent and coherent meaning as it applies to each of affiliations, beliefs and views.

17. [116]

    To have a political affiliation, a person will have a formal or semi-formal connection with an organised group, typically a party but arguably extending to an identifiable movement, that holds and advocates particular views or beliefs or policies that it would wish to see implemented by government.

18. [117]

    Many people hold views or beliefs “connected with public debate about affairs of government, or the conduct of public affairs”, without having any political affiliation and without those views necessarily being “political”, at least in the sense of being identified or connected with – or in support of or in opposition to – a particular political party or political movement which happens to hold those same views.

19. [118]

    Whatever the precise metes and bounds of the term “political” in s 35 of the WSU Act, it may be accepted that the word “political” at least describes an affiliation, view or belief associated with 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. Such a view or belief may also extend to or encompass a view or belief which is critical of a view or belief held or espoused by an identifiable political party, organisation or movement. Further, the party, organisation or movement need not be in the mainstream or one that necessarily actively participates in the electoral process.

20. [119]

    A person holding views, beliefs or affiliations so associated with a political party, organisation or movement in the sense described (or a comparable religious organisation or movement) cannot be penalised by reason of the fact of having that affiliation, or holding that view or belief. The purpose or policy underpinning such a provision is plain enough and salutary. It is not, however, nearly as broad as was described or conceived of by the primary judge, namely to “protect freedom of thought for researchers and students at universities”: PJ [144]. To describe s 35 of the WSU Act in the grand language of a “bulwark of academic freedom” (see PJ [149]) was also, with respect to the primary judge, to extend the section beyond its more modest, albeit still very important, aims.

21. [120]

    So much may also be seen in his Honour’s statement that “[u]niversities exist to advance human knowledge and understanding”: PJ [149]. This may be accepted, but such a large observation is far removed from the immediate language of the statute and its cautious, incremental legislative history. Section 35 is a non or anti-discrimination provision but, even as an anti-discrimination measure, it is far more modest than it could conceivably have been (cf Bond University Act 1989, s 6 and Australian William E. Simon University Act 1988, s 8 referred to at [106] above).

22. [121]

    Nor is s 35 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. The primary judge accepted this but only in a qualified way, saying that “[i]t is true that s 35 is not a guarantee of free speech as such”: PJ [147] (my emphasis). Academic or intellectual freedom of thought and expression as discussed in Ridd v James Cook University [2021] HCA 32; (2021) 95 ALJR 878 at [29]–[32] may in one sense be related to but comprise a much larger topic than, and are different from, proscription of discrimination by reference to specific criteria.

23. [122]

    At PJ [150], the primary judge called in aid of the broad interpretation which he accorded to the term “political” the fact that s 35 “brackets ‘religious’ with ‘political’ belief”, before going on to say:

24. [123]

    The effect of this reasoning is to equate and thereby treat any “moral” or “ethical” belief as “political” for the purposes of the statute. Section 35 cannot bear such a meaning. Nor, in our opinion, was it intended to do so. The interpretation is not supported by the legislative history or textual analysis set out above, and it would potentially give rise to challenges to all manner of regulatory conduct by the University by reference to a person’s ideas or beliefs so long as they could be said to have any moral or ethical dimension. Again, we do not consider that this intention can be imputed to Parliament.

25. [124]

    Ms Thiab’s views or beliefs are those which were capable of being discerned from the various accounts of her interactions with nursing staff at the hospitals at which she had been scheduled to undertake her placements, in addition to her direct communications with Ms Hunt. These have been set out at length above. The fact that other people during the pandemic may have had views about vaccination and government insistence on it that may have been characterised as political is not to the point. The focus was necessarily upon Ms Thiab’s views and, more precisely, the University’s understanding of those views in the context of the information Ms Hunt and Associate Professor Heaton received from St George Hospital and the Vaccination Hub.

26. [125]

    To the extent that Ms Thiab’s views were acted upon by Ms Hunt, she characterised those views as the “espousing of misinformation that has been circulating and stating that Dr Kerry Chant was wrong” and “[e]spousing anti-vaccination dialogue”: see [30] and [37] above. Ms Hunt also referred to concerns relayed to her “regarding the content of the student’s conversation regarding vaccinations”, namely that “the information the student was relaying was incorrect and not evidence based”: see [40] above.

27. [126]

    To the extent that these views were acted upon by Associate Professor Heaton, she characterised them as entailing “anti-vaccination messaging” and “mis-information about COVID-19 vaccine safety and efficacy”: see [52] above. Her understanding was that Ms Thiab was “opposed to vaccination”: see [33] above.

28. [127]

    Further insight into whether Ms Thiab’s views were in fact “political”, and were understood by Ms Hunt and Associate Professor Heaton to be political, may be gained from her own correspondence with Ms Hunt, some of which was forwarded to Associate Professor Heaton: see [33] above.

29. [128]

    An analysis of this material leads us to be comfortably satisfied that, to the extent that Ms Thiab held negative views about vaccination for COVID-19, those views did not arise from any belief that could be described as “political”, even taking a broad view of that concept. Rather, her belief or views were born of concerns, no doubt genuinely held by her, about the efficacy of treatment and reports of negative health consequences including myocarditis. For example, Ms Thiab’s email to Ms Hunt of 30 August 2021 (set out at [32] above) put her vaccine hesitancy squarely in the context of the asserted insufficiency of scientific data. Her opinion was also based on her understanding of the physiological process – “considering the heart’s unique physiology, inflammation can lead to the development of scar tissue, and, as we know the cells of this vital organ can not regenerate. Therefore this poses serious risks of chronic cardiac issues …”. The email also referenced scientific reports in support of her views. The email concluded with a request for information in relation to the vaccine.

30. [129]

    Nowhere in this email does one see any assertion that a requirement to be vaccinated represented an invasion of personal or bodily autonomy, or even a complaint about particular actions of the government (cf the various libertarian objections to government health measures considered by this Court in Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299). The primary judge acknowledged at PJ [161], extracted at [90] above, that Ms Thiab did not articulate in her evidence an express political basis for opposing vaccination but his Honour went on to say that that was not conclusive. So much may be accepted. What is more difficult to accept is his Honour’s subsequent statement that “if called upon to say why she was taking the issue so seriously, I suspect that Ms Thiab would have used precisely the justification articulated by counsel…”. That form of speculation is not permissible, especially in circumstances where a witness goes into evidence and could have but does not give evidence on a particular topic: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418 (Ferrcom).

31. [130]

    To the extent that the email of 30 August 2021 referred to then Premier Gladys Berejiklian and Chief Medical Officer Kerry Chant (see [32] above), those references were simply as to views they expressed about the degree of infectiousness of those who were vaccinated as opposed to those who were not. Ms Thiab, in this email, was embracing or relying upon those scientific or medical views. There was nothing political about it.

32. [131]

    In this context, it may be observed that not every statement made by a politician constitutes a political view or belief. Still less does every statement made by a public servant in the presence of a politician necessarily amount to the expression of a political view or belief by that public servant. Indeed, the role of the public service is avowedly apolitical and non-partisan: see Government Sector Employment Act 2013 (NSW), s 7. Responding to or in turn expressing a view about such statements also does not necessarily make such a response “political”.

33. [132]

    Similarly, Ms Thiab’s statement that Dr Chant was “wrong”, as she told Ms Reardon at St George Hospital (see [29] and [34] above), was not a political opinion or expression of belief. It was an expression of doubt or scepticism as to the accuracy of a scientific or medical opinion that Dr Chant had espoused. As submitted by the University, “the context in which Dr Chant was said by [Ms Thiab] to be wrong was that [Ms Thiab] had said that vaccinated people were as infectious as unvaccinated people and posed a greater risk because they may be asymptomatic and spread the virus unknowingly…”.

34. [133]

    In relation to the events of 25 October 2021, Ms Thiab’s remarks, as reported to Ms Hunt and Associate Professor Heaton, were again expressed by reference to medical research regarding vaccines. She expressed concerns that she had heard or read that “people would die 5 years after the vaccine” and that “in Israel the vaccine wasn’t working”: see [36] above. These were not political views and, to the extent that they were characterised by Ms Hunt and Associate Professor Heaton as “anti-vaccination” views, the source of Ms Thiab’s opposition to vaccination was not some political or ideological standpoint but rather scientific scepticism and anxiety founded on anecdotal reports. In this context, while it may be readily acknowledged (as the University did at first instance: see PJ [163]) that a person’s anti-vaccination views may be “political”, our review of the evidence indicates that the nature of Ms Thiab’s opposition to or hesitancy in relation to vaccination was medical and scientific and not political, even on a broad understanding of that concept.

35. [134]

    In this context, in her response to the cancellation decision, Ms Thiab’s response was not expressed in terms of being punished for political views she held; rather, she said that she was “simply asking my RN important questions regarding side effects and Ethics surrounding informed consent …”: see [38] above.

36. [135]

    Although Ms Thiab’s affidavit was obviously not before Ms Hunt nor, it would appear, Associate Professor Heaton, recourse to it fortifies our assessment that the views or beliefs of Ms Thiab were not political. Particular reference may be had to her statement that “I am only asking scientific questions to learn from you. I would never say anything to a patient to cause vaccine hesitancy”. Additionally, as noted above and also by the primary judge at PJ [161], Ms Thiab did not claim that her views were political or had a political basis.

37. [136]

    Whatever may be the outer limit of the concept of “political views or beliefs” as used in s 35 of the WSU Act, Ms Thiab’s views or beliefs could not be described as political and were not understood by either Ms Hunt or Associate Professor Heaton to be so. This conclusion is sufficient to require that the appeal be allowed.

38. [137]

    As explained below, the impugned decisions were actuated by concerns as to what Ms Thiab would say and do, rather than any belief she had. This provides a further ground for allowing the appeal.

Consideration: the causation issue

1. [138]

   As already noted, even though the Summons sought declaratory relief solely in relation to the cancellation decision, the declaration in fact made by the primary judge was expressed solely in relation to Associate Professor Heaton’s disciplinary sanctions.

2. [139]

   It appears from the passage of his reasons extracted at [91] above that the primary judge made the declaration in the form he did because he considered that the disciplinary sanctions had some ongoing operation whereas there was no utility in making a declaration in relation to the cancellation decision, the effect of which could not be remedied. The divergence from what was sought and what was given in terms of declaratory relief is the subject of the University’s procedural fairness complaint which, as has been seen, was that other than an argument that if the cancellation decision violated s 35, the disciplinary sanctions could not stand (an argument not accepted by the University), it was given no notice that Ms Thiab would challenge the lawfulness of the disciplinary sanctions by reference to s 35. That issue is dealt with at [160]ff below.

3. [140]

   In terms of causation, both parties made reference to the judgment of Kiefel J in Toben v Jones (2003) 129 FCR 515; [2003] FCAFC 137 where her Honour (at [63]) referred to the “true reason or true ground” for the impugned action in the context of a claim of racial vilification, citing Dawson J in Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 186; [1989] HCA 56; see also the judgment of Deane and Gaudron JJ and their Honours’ reference to the “true basis” for the decision at 176–7. The causation question presented by s 35 of the WSU Act similarly requires a characterisation of the true basis, reason or ground for the impugned decision(s).

4. [141]

   Identification of the “true” reason, ground or basis for a particular decision will not always be straightforward and may have in its background a person’s particular views or beliefs. The reason for a particular adverse action may not always be entirely dissociated from a person’s particular views or beliefs, but that does not mean that such adverse action is taken because of those beliefs: see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [62] (Bendigo Institute). For example, a student who actively espoused antisemitic opinions on campus and encouraged hostility towards Jewish students or faculty could be regulated or disciplined in the event that the University formed the judgment that such conduct represented a risk to security. The true or operative cause of such intervention would not be the fact that the student held the particular antisemitic belief, but rather the apprehended consequences of the promotion of that belief.

5. [142]

   It is not difficult to conceive of other situations where an action taken by a university is not taken “because of” the holding or expression 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. For example, racially offensive or inflammatory comments may often be couched in ostensibly political terms, if they are made in the context of statements about a political party’s policies about, say, immigration or social welfare. If such comments were to lead to disciplinary proceedings (for example, on the basis of a breach of a university’s internal policies on harassment), it would not necessarily follow that the University was acting in contravention of s 35 of the WSU Act merely because the course of conduct which led to the disciplinary action also involved the expression of a political view or belief. In each case, it would be a matter of determining whether the adverse action taken by the University was actuated by the political affiliation, view or belief itself, or by some other legitimate and bona fide concern: cf, in the context of s 351 of the Fair Work Act 2009 (Cth), Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587 at [279]; Rumble v Partnership (t/as HWL Ebsworth Lawyers) (2020) 275 FCR 423; [2020] FCAFC 37 at [40]–[42]

6. [143]

   Notwithstanding that it was not the subject of declaratory relief, the primary judge found that the cancellation decision was made by Ms Hunt because of Ms Thiab’s political views or beliefs. However, that decision on the causation question was not supported by a consideration of Ms Hunt’s reasoning process, as revealed in the language she employed to give effect to the cancellation decision. It was also contrary to the affidavit evidence given by Ms Hunt as to her reasoning process, which was not challenged in cross examination nor referred to by the primary judge. Such evidence, whilst not necessarily conclusive, is undoubtedly relevant: cf Bendigo Institute at [43]–[45], [65]. It is convenient to refer to Ms Hunt’s affidavit evidence first.

7. [144]

   After recounting what had occurred at Ms Thiab’s placement at St George Hospital in August 2021 and referring to the correspondence which has been set out at [29]–[33] above, Ms Hunt said in her unchallenged affidavit evidence (omitting documentary references):

8. [145]

   This unchallenged evidence was consistent with what Ms Hunt had written both to Ms Thiab at 9.28am on 25 October 2021 (see [37] above) and in her misconduct report to Associate Professor Heaton: see [40] above. Ms Hunt’s action in initiating a complaint that Ms Thiab had engaged in misconduct itself was revealing of her reasons for the cancellation decision. In this context, the fact that the primary judge did not consider that the Code of Conduct had been breached or was engaged (see [84] above) was not to the point. Whether or not Ms Hunt was correct in her understanding or interpretation of the Code, she was reacting to her perceptions of Ms Thiab’s conduct whilst on or about to commence a clinical placement.

9. [146]

   What actuated the cancellation decision was not the fact that Ms Thiab held particular views but, rather, an apprehension on the part of Ms Hunt, on the basis of information relayed to her by Ms Almeida, that the expression of those views in a clinical setting was anathema to what was required of a nurse in the public health system. The cancellation had a strong degree of prophylaxis about it. In this respect, Ms Hunt’s concern about Ms Thiab’s ongoing participation in this environment may or may not have been overly conservative. It is not for this Court, however, nor was it for the primary judge to form or express a view about that.

10. [147]

    What is clear is that the cancellation decision was actuated by the perceived consequences of permitting Ms Thiab to remain in an environment where the facilitator at the Vaccination Hub had herself articulated concerns about Ms Thiab’s “ability to provide safe information and education to clients” and where Ms Hunt, rightly or wrongly, saw what had been reported to her as a continuation of a pattern of behaviour that had earlier manifested itself at St George hospital, where it was reported that Ms Thiab had said that she was not going to comply with Public Health Orders: see [29]–[30] above.

11. [148]

    Ms Thiab’s views or beliefs as to the efficacy and safety of vaccination against COVID-19 no doubt underpinned the cancellation decision and formed part of the background to it. But the cancellation decision was made on the basis of a practical assessment that a person who had twice expressed those views in clinical settings (albeit to other healthcare staff) posed a risk of being unable to provide safe information and education as to the benefits of vaccination to patients. In other words, and contrary to the primary judge’s conclusion at PJ [128], it was not Ms Thiab’s views or beliefs per se that caused the cancellation decision but an assessment of what those views, combined with past conduct, implied in relation to Ms Thiab’s ability to complete the placement satisfactorily and interact safely with patients. The fact that Ms Almeida had indicated that Ms Thiab could continue but only under “close supervision” (see [36] above) only highlighted the fact that it was Ms Thiab’s prospective interactions with patients that were the cause of concern.

12. [149]

    In this context, it should be remembered that in late 2021, Sydney (together with the rest of the world) was in the midst of a pandemic which had caused much death and serious illness, with large parts of the nation subjected to extended lockdowns and movement restrictions. It is unsurprising that the provision of safe and accurate information about vaccination against COVID-19 to hospital patients and members of the public obtaining a vaccination would be at the forefront of Ms Hunt’s mind.

13. [150]

    The cancellation decision rested on practical concerns in light of information and anecdotal “evidence” raised by Ms Thiab that neither Ms Reardon, Ms Almeida nor Ms Hunt considered to be accurate. There was a clear apprehension that Ms Thiab would share what was considered to be misinformation about vaccination with patients, or that there was a non-trivial risk that she would do so.

14. [151]

    The primary judge erred, in our view, in holding that the cancellation decision was made because of Ms Thiab’s beliefs.

15. [152]

    Unlike Ms Hunt, Associate Professor Heaton did not advance reasons in her affidavit for her decision to impose the disciplinary sanctions. It was submitted on behalf of the University that it may readily be inferred that the reason this was not done was because Ms Thiab had nowhere identified that she sought to challenge the disciplinary proceedings in the Supreme Court (other than seeking to restrain their continuance by prayer 4 of the Summons). We agree with this submission.

16. [153]

    True it is that the University filed an affidavit by Associate Professor Heaton but this was filed on 31 January 2022, well prior to the misconduct hearing, and simply explained the background to and nature of the disciplinary proceedings in the context of Ms Thiab’s attempt to have those proceedings restrained. It may readily be inferred that, had the University been on notice of an attempt to challenge the disciplinary sanctions by reference to s 35 of the WSU Act, Associate Professor Heaton’s evidence would have addressed her reasons for imposing the disciplinary sanctions in the same way that Ms Hunt’s affidavit addressed her reasons for making the cancellation decision. This is therefore not a case where any adverse inference may be drawn as to the Associate Professor’s reasons: cf Ferrcom at 418.

17. [154]

    Even without direct evidence from Associate Professor Heaton, her reasons for imposing the disciplinary sanction may be discerned from her report and, in particular, the following passage (also extracted at [52] above):

18. [155]

    The primary judge referred to and placed emphasis upon the Associate Professor’s references in her report to Ms Thiab’s “anti-vaccination views and misinformation about COVID-19 vaccine safety and efficacy” but abstracted these words from the context Associate Professor Heaton immediately supplied, namely “raising concerns about [Ms Thiab’s] ability to provide safe patient care and education to NSW Health clients”. This, coupled with the passage extracted at [154] above, highlights the reasons for Associate Professor Heaton’s decision to impose disciplinary sanctions. The Associate Professor’s decision was entirely consistent with what had been stated by Ms Almeida in the “Clinical ‘At Risk’ Report” referred to at [36] above. The decision was a response to the risk identified in that form. The risk was one in relation to patient safety. It was not about or caused by the fact that Ms Thiab simply held certain views, whether “political” or not: cf PJ [128].

19. [156]

    To the extent that the primary judge expressed the opinion that the Associate Professor had misunderstood or erred in her interpretation of the Code of Conduct, or had insufficiently investigated the facts, neither of these matters was before the primary judge and were for the internal appeal panel.

20. [157]

    In relation both to the cancellation decision and the disciplinary sanctions, Ms Thiab contended that, in both August and October, all that had occurred had been the expression of views – which she labelled as political – and no relevant conduct. On both occasions, the evidence did not suggest that any of Ms Thiab’s views had been conveyed to members of the public; rather in the first hour of each placement she had expressed views to the nursing staff who had been training her. She submitted that the University therefore had acted merely upon her political views, as opposed to any conduct by her. But a fair reading of the documents reflects the University acting on the basis of a perceived risk, in light of the views communicated to the nursing staff, that Ms Thiab might not be able safely to provide information and education to patients or, as they were referred to, “clients”.

21. [158]

    Of the material before Associate Professor Heaton, the best evidence of the views expressed by Ms Thiab on 25 October 2021 was the “Clinical ‘At Risk’ Report”, prepared within an hour of the conversation between Ms Thiab and the nurse. That document identified three points: (a) she had heard or read that “people would die five years after [being given] the vaccine”, (b) “in Israel the vaccine wasn’t working” and (c) her sister was working in a cardiac ward and had seen patients with heart problems after receiving the vaccine.

22. [159]

    There was ample reason for concern to be held that Ms Thiab would communicate those views to patients (whether spontaneously or in response to questions does not matter). Nor is it to the point that Ms Thiab gave unchallenged evidence that she told another registered nurse, whom she believed to be the facilitator, that she would never say anything to a patient that would cause vaccine hesitancy: see [39] above. The concern as to patient health which motivated the actions taken by the University was not because of Ms Thiab’s affiliations, views or beliefs (whether political or not). Rather it was 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. That conclusion does not turn on the metes and bounds of “political”. Instead it turns on the decision being made because of a perceived risk of conduct, rather than Ms Thiab’s affiliations, views or beliefs.

Consideration: the procedural fairness issue

1. [160]

   We now turn to the question of whether the making of the declaration by reference to the disciplinary sanctions as set out at [8] above involved a denial of procedural fairness. The University’s contention is that it was not fairly put on notice that Ms Thiab would seek to impugn Associate Professor Heaton’s reasons for imposing the disciplinary sanctions, or that she would seek declaratory relief in relation to those sanctions.

2. [161]

   In support of this contention, the University relied upon the following matters:

   1. (1)

      that neither the Summons nor the Amended Summons sought a declaration that the disciplinary sanctions contravened s 35 of the WSU Act, nor was Associate Professor Heaton a defendant in the proceedings;

   2. (2)

      that Ms Thiab’s written submissions, which were served before the hearing, raised no challenge to the disciplinary sanctions on the basis that they contravened s 35 of the WSU Act;

   3. (3)

      that, at two pre-trial directions hearings, the question of whether Ms Thiab sought to challenge the disciplinary sanctions was raised either by the primary judge or by counsel for the University, with the primary judge indicating that the Summons would need to be amended if such relief was sought (see [58]–[61] and [63]–[64] above);

   4. (4)

      that solicitors for the University raised the absence of any challenge to the disciplinary sanctions expressly in a letter to Ms Thiab’s solicitors dated 19 April 2022 to which there was no apparent response (see [66] above);

   5. (5)

      that Associate Professor Heaton’s affidavit evidence pre-dated the misconduct decision and thus did not address it, highlighting the fact that the University did not understand any challenge was being made to that decision other than to the extent of a submission that, if the cancellation decision was set aside, the disciplinary sanctions should fall away;

   6. (6)

      that both Ms Thiab’s and the University’s opening written submissions proceeded on the basis that there was no challenge brought by Ms Thiab to the misconduct decision;

   7. (7)

      it was not put to Associate Professor Heaton in cross-examination that she had imposed sanctions because of “anti-vaxxer” beliefs she imputed to Ms Thiab.

3. [162]

   Although not referred to by the University, the contention that it was not fairly on notice of the challenge to the disciplinary sanctions also finds support in the letter from Associate Professor Heaton to Ms Thiab dated 8 February 2022 and extracted in part at [46] above. In that letter, the Associate Professor indicated that her understanding of the purpose of her affidavit was to give “evidence of the present status of the complaint that is before me in my role as authorised officer”. She stated that her evidence was “limited to the misconduct process, the Misconduct Rule itself, and the timeframe within which I expect the complainant to be resolved”, and “does not concern the substance or merits of the complaint”.

4. [163]

   Mr Braham was not in a position to gainsay any of these matters, all of which strongly support the University’s argument that it was denied procedural fairness in the way alleged. Rather, he placed almost complete reliance upon the observations by the primary judge in the course of his ruling on the evidentiary objection that had been made to the relevance of some of Ms Thiab’s evidence, and which has been extracted at [69] above. It will be recalled that his Honour said: “I think it is open to the plaintiff, if she can, to make a case that the disciplinary proceedings involve a reflection [scil. infraction] of s 35 …”

5. [164]

   The primary judge’s observations in this passage were somewhat surprising in light of his earlier insistence that, were Ms Thiab to challenge the disciplinary sanctions imposed as a result of Associate Professor Heaton’s misconduct inquiry and report of 22 March 2022, she would need to amend the Summons formally to seek such relief and the University be given a proper opportunity to respond to that new case: see at [59], [61], [64], [65].

6. [165]

   Even so, it is important to attend precisely to what the primary judge said in ruling on the objection to certain parts of Ms Thiab’s evidence, namely, “I think it is open to the plaintiff, if she can, to make a case that the disciplinary proceedings involve [an infraction] of s 35” (emphasis added). The difficulty for Mr Braham’s reliance on this passage is that, at first instance, Ms Thiab, through her then counsel, did not seek to make out any direct attack on the disciplinary sanctions by reference to s 35 of the WSU Act. The attack was made by the judge, and without notice to the University. This was no doubt motivated by his Honour’s view, which he had expressed in the course of directions hearings (see [57]–[61], [63]–[65] above) that, in order to secure a practical result, Associate Professor Heaton’s decision and disciplinary sanctions needed to be impugned. It was not for his Honour, however, to become the author of such an attack, still less without putting the University on notice of that possibility.

7. [166]

   We accept the University’s submission that it was entirely taken by surprise when it received his Honour’s reasons for judgment, and that it was denied procedural fairness in respect of the subject matter of the declaration ultimately made. Because of the conclusions reached in relation to the other grounds of appeal, the usual consequence of a denial of procedural fairness, namely the need for a re-hearing, does not arise. It is for this reason that the issues raised by this appeal have been dealt with in the sequence they have cf Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2], [117]; Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25 at [36]–[37].

8. [167]

   Mr Braham advanced a fall back argument that it was open to the University to raise its complaint with the primary judge in the short period between the publication of reasons and the making of final orders. Whilst it may be accepted that it was open to it do so, the failure to have done so did not, in the circumstances of this particular case, mean that there was no procedural unfairness nor did it preclude the University from raising its complaint on appeal.

Other matters

1. [168]

   The nature of the proceedings before the primary judge and on appeal did not concern the merits or otherwise of the cancellation decision or the subsequent disciplinary process and sanctions. As to the latter, as recorded at [23] above, Ms Thiab initiated an internal appeal process. Whether that process has run its course or was in abeyance as a result of these proceedings was not before the Court.

2. [169]

   What was also not before the Court, either at first instance or on appeal, was any consideration of the procedural propriety of the University’s disciplinary process conducted by Associate Professor Heaton which led to the disciplinary sanctions imposed on Ms Thiab. In that context, it was most regrettable that the trial judge saw fit to characterise the disciplinary proceedings as being, “[a]s an independent investigation, … a travesty”, as he did at PJ [118], and to express his doubts as to whether Ms Hunt and Associate Professor Heaton “even read the relevant provisions of the Code”: see PJ [126]. These observations, adverse to the reputation of Associate Professor Heaton in particular insofar as her investigation was described as a “travesty”, were all the more regrettable as it was never put to Associate Professor Heaton either by way of cross-examination or by the primary judge that the disciplinary process had that character.

3. [170]

   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 them and where they have not been given an opportunity fairly to respond. This is for similar reasons as underpin the rule in Browne v Dunn (1893) 6 R 67 at 70-71 in which Lord Herschell LC famously said:

4. [171]

   As was observed in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [72] (Kuhl), “if it was not open to counsel for the first respondent to make the postulated allegation, how can it have been open to the trial judge, without warning, to incorporate into his reasons for judgment a finding to the same effect as the allegation?”; see also DEJ v Council of the New South Wales Bar Association [2021] NSWCA 72 at [172].

5. [172]

   In Kuhl, Heydon, Crennan and Bell JJ continued at [75]:

6. [173]

   The rule applies as between parties and irrespective of whether the witness is a party: Scott v Scott [2022] NSWCA 182 at [64].

7. [174]

   In Bale & Anor v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 at [66]–[67], this Court said:

8. [175]

   The primary judge’s remarks about the misconduct inquiry, and the strength of the language used to characterise it, should not have been made. Mr Braham candidly accepted that he could not support those remarks but observed that he did not need to, because the procedural propriety of the hearing was not relevant to his argument.

9. [176]

   The primary judge’s remarks on this topic also overlooked the fact that Ms Thiab had been given multiple opportunities to participate in the disciplinary hearing but declined to do so, citing the existence of the Supreme Court proceedings. In circumstances where she had unsuccessfully sought interlocutory relief restraining the continuation of the internal University proceedings, Ms Thiab took the risk that these proceedings would be resolved in her absence. This was scarcely the fault of Associate Professor Heaton or the University.

Conclusion

1. [177]

   In our opinion, leave to appeal should be granted and the appeal allowed with costs. The orders of the primary judge should be set aside and in lieu thereof, the Amended Summons should be dismissed with costs.