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Petrak v Griffith University & Ors [2020] QCAT 351

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Date: 11 September 2020
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Gordon
Human Rights Act 2019 (Qld) Sections: ss 13, 31
Rights Considered: Right to a fair hearing
Other Legislation: Anti-Discrimination Act 1991 (Qld) ss 5, 8, 10, 11, 178, 208; Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 28, 29, 95
Keywords: Discrimination; Education, Training and Employment

This case considered whether Griffith University and two of its employees victimised or directly discriminated against the applicant on the basis of her impairment, family responsibilities and political beliefs. The Tribunal noted that proceeding to a final decision ‘on the papers’ appropriately balanced each party’s right to a fair hearing under section 31 of the Human Rights Act 2019 (Qld). 

The applicant, Melissa Petrak, was a student at Griffith University. She made a complaint to the Anti-Discrimination Commission Queensland (now the Queensland Human Rights Commission) regarding her treatment by Griffith University and two of its employees. Ms Petrak claimed that she had attributes protected by the Anti-Discrimination Act 1991 (Qld) and that she had experienced discrimination and victimisation on the basis of those attributes: at [2]. Since the factual and legal issues in the complaint were unclear, and the respondents applied to strike out the complaint, the matter was referred to the Tribunal: at [3]

In October 2018, the Tribunal identified issues of discrimination and victimisation in Ms Petrak’s complaint. These issues included whether there was less favourable treatment by the respondents in the Community Internship Program because of Ms Petrak’s impairment, less favourable treatment by the respondents in the subject Civil Procedure because of impairment and family responsibilities, and victimisation on the basis that Ms Petrak was not granted ‘recognised prior learning’ after making a complaint to the first respondent about the second respondent: at [10]. The respondents conceded that Ms Petrak had a disability being an impairment for the purpose of the Anti-Discrimination Act 1991 (Qld), had family responsibilities, and may have had political beliefs: at [11].

The matter was listed for an oral hearing in May 2019, originally in person and later by telephone. Due to technical difficulties, the hearing was vacated and the Tribunal issued directions for final written submissions before making a decision on the papers: at [21]-[22]. As a result, the Tribunal had to resolve the complaint without Ms Petrak completing her cross-examination or providing final oral submissions: at [15]. Previously, Ms Petrak had ‘strongly argued that she should complete her cross examination and that she should address the tribunal orally, rather than in writing’: at [15]. However, Ms Petrak did not provide final written submissions: at [23]. 

In deciding to resolve Ms Petrak’s complaint this way, the Tribunal considered the right to a fair hearing in section 31 of the Human Rights Act 2019 (Qld). It noted that the right to a fair hearing is afforded to individuals ‘as a matter of procedural fairness and natural justice’ and ‘may only be limited when justified’: at [24]. The Tribunal found that Ms Petrak had been given a reasonable opportunity to complete her cross examination and make final submissions, and that her complaint was not weakened by proceeding on the papers: at [25]. Further, trying to relist the matter would prejudice the respondents: at [27]. Considering the need to balance the rights of all parties, the Tribunal was satisfied that there had been a fair hearing: at [29].

The Tribunal considered each of the issues raised in Ms Petrak’s complaint. It found that there was no direct discrimination, as Ms Petrak was not treated less favourably than another person without the attribute in the same circumstances would have been: at [145]. Ms Petrak’s claim of victimisation also failed, as her complaint to the first respondent had no part in its decision not to grant recognised prior learning: at [167].


LINK: https://archive.sclqld.org.au/qjudgment/2020/QCAT20-351.pdf