A recent decision of the NSW Supreme Court has applied a rarely used provision in legislation setting up Australian universities to provide a legal remedy for a student penalised for her comments on a controversial issue. In Thiab v Western Sydney University [2022] NSWSC 760 (10 June 2022) Parker J ruled that the actions of Western Sydney University (“WSU”) in penalising the student, Ms Thiab, for comments she had made expressing disagreement with the State’s compulsory vaccination requirements, were unlawful. The case is an interesting example of protection of a student’s freedom of speech through application of the legislation establishing the University, and would apply not only to “political” comments as in this case, but also to religious beliefs.

Facts

Ms Thiab was a student in the nursing program offered by WSU. She had completed her academic requirements but needed to complete a number of hours of on-the-job placement to graduate. On two placements, while in the middle of the restrictions imposed due to COVID-19, she made comments to hospital staff members (not to patients) that she doubted whether the vaccination requirements imposed by the rules on medical staff were really necessary. In response to these incidents reports were made by the hospital co-ordinator to the University staff.

The first conversation took place on 30 August 2021, and at the time Ms Thiab had not been vaccinated against COVID. In that conversation the hospital supervisor “interpreted [her] statements as “spreading misinformation” about Covid-19 vaccines and saying that “Dr Kerry Chant was wrong”.” (para [25]) After that Ms Thiab’s placement at the St George Hospital was cancelled, as were other placements that she had scheduled.

Subsequently Ms Thiab decided to receive the COVID vaccination and was then approved for placement. She was to commence this placement on 25 October 2021. Palmer J summarises the events as follows:

Ms Thiab attended the Hub on 25 October, but again her placement was cancelled before she undertook any clinical work. During induction she became involved in a discussion with an RN with whom she would be working. Again, there was a disagreement about the general merits of Covid-19 vaccination. The nurse reported the issue to the University’s facilitator. They agreed that the placement should proceed with Ms Thiab being carefully monitored. Instead, however, when Ms Hunt learned of what had happened, she cancelled the placement entirely. She also indicated that Ms Thiab would face disciplinary proceedings.

Thiab v WSU, para [32].

Ms Hunt, who is mentioned here, was the Deputy Director of Clinical Education (Nursing) within the School of Nursing and Midwifery (“SoNM”) at WSU. Rather than accept the hospital’s recommendation that the placement continue with monitoring, all planned placement hours were cancelled and a disciplinary process against Ms Thiab was commenced. This process continued even after Ms Thiab had commenced her court proceedings against WSU; it resulted in a “report and determination” by a disciplinary tribunal constituted by Associate Professor Leeanne Heaton (Deputy Dean for the SoNM). Palmer J noted:

Professor Heaton decided that, among other things, Ms Thiab must apologise for her conduct and write a one thousand-five hundred word “appreciation” on how that conduct was a breach of her professional obligations. Ms Thiab has so far refused to do this, and the University will not be allocating her any further placements until she does so.

Thiab v WSU, para [6].

Legal basis for protection of University free speech

The basis for Ms Thiab’s claim against WSU was that it had been in breach of its obligations under s 35 of the Western Sydney University Act 1997 (NSW), which provides as follows:

35 NO RELIGIOUS OR POLITICAL DISCRIMINATION 

A person must not, because of his or her religious or political affiliations, views or beliefs, be denied admission as a student of the University or progression within the University or be ineligible to hold office in, to graduate from or to enjoy any benefit, advantage or privilege of, the University.

Most of the provisions of legislation establishing Universities are of a fairly mundane administrative nature. But this provides an interesting and clear statement of a key value underpinning University life- the value of free and frank discussion amongst those with differing political and religious views. Indeed, it is interesting that it is an example of a provision commonly found in legislation governing Universities in NSW; virtually identical provisions are to be found in, for example, the University of New South Wales Act 1989, s 23, and the University of Newcastle Act 1989, s 24.

Parker J provides an interesting and important brief overview of why such provisions are to be found in statutes establishing Universities. His Honour at [81]-[82] traces its origins to the rules that were previously in force in Oxford and Cambridge imposing religious tests for students, and the abolition of such rules in the UK by the middle of the 19th century. When the University of Sydney was established in the colony of NSW, the University of Sydney Act 1850 s 20 confirmed that no religious test would be applied to its students. In more recent years an updated version of this important principle has been incorporated into legislation establishing other Universities.

Later his Honour referred to the rationale behind the provision:

[144] [T]he purpose was quite clear from the statutory language. It was to protect freedom of thought for researchers and students at universities. That was reinforced by the presence of s 36, which was similarly directed to freedom of conscience. 

[145] Historical events also provided context for the enactment of the provisions reflected in s 35. Galileo’s persecution by the Inquisition was a famous example. More recently, and more immediately relevantly for present purposes, were Stalinist and Maoist enforcement of academic conformity with the party line(including in particular forced recantation of “incorrect” beliefs, and forced self-criticism for having professed those beliefs in the first place): see Priestland, D, The Red Flag: A History of Communism (Grove Press, 2009), 144.

[146] It is hard to overstate the importance of this subject. Freedom of thought and freedom of speech have been bracketed together as indispensable conditions of a free society: Palko v Connecticut, 302 U.S. 319 (1937) at 327. But thought precedes speech; therefore, of the two, freedom of thought must be seen as the most fundamental. 

[147] It is true that s 35 is not a guarantee of free speech as such. But free speech may be tied up with freedom of thought. Even in circumstances where there is no right of free speech, freedom of conscience will still protect the citizen from being required to make an affirmative profession of belief. Furthermore, a citizen’s speech is usually taken as a guide to that person’s thought. Action against the citizen merely for expressing a thought, when no countervailing interest is engaged, is an indirect attack on the citizen’s freedom to hold it.

Thiab v WSU, Parker J, [144]-[147] (emphasis added).

Later his Honour noted the broader context:

[149] Nor is it merely a question of protecting Ms Thiab’s individual rights, however important in itself that may be. In a university context, freedom of thought has a public dimension. Universities exist to advance human knowledge and understanding. The theory behind s 35 is that this is an objective process and the personal beliefs, whether religious or political, of those involved, are, or should be, irrelevant. Section 35 can thus be seen as a bulwark of academic freedom: Ridd v James Cook University [2021] HCA 32 at [29]-[33].  

Thiab v WSU, Parker J, [149] (emphasis added)

The passing reference here to the decision of the High Court of Australian in Ridd v James Cook University [2021] HCA 32 is important. Without going into the details, in that case the High Court, while ultimately upholding University disciplinary action against Professor Ridd for the way he had expressed his views, found that many of the actions the University had taken against him were unlawful. The court noted the importance of academic freedom in the following comments:

30 In the independent review of freedom of speech in Australian higher education providers… the Hon Mr Robert French recognised that the “essential elements and history” of academic freedom “mark it as a defining characteristic of universities and like institutions”^[23]. Two essential elements of the developed concept of intellectual freedom…, recognised by some as the essential elements of the concept of intellectual freedom^[24], are two notions: (i) critical and open debate and inquiry including in public fora, namely the “spirit of free inquiry”^[25]; and (ii) participation and discussion in university governance. As early as 1900, E E Brown said of the first that^[26]:

“It is a part of the mission of educational institutions to take their place and play their part in the conflicts which are necessary to the life of the peoples; and when their part assumes the form of a struggle for the right to teach the truth as they find it, the conflict itself may prove their best means of persuading men that truth is worth fighting for.”

31 One developed justification for intellectual freedom is instrumental. The instrumental justification is the search for truth in the contested marketplace of ideas, the social importance of which Frankfurter J spoke powerfully about in Sweezy v New Hampshire^[27]. Another justification is ethical rather than instrumental. Intellectual freedom plays “an important ethical role not just in the lives of the few people it protects, but in the life of the community more generally” to ensure the primacy of individual conviction: “not to profess what one believes to be false” and “a duty to speak out for what one believes to be true”^[28].

These are important concepts which can be seen to be supported by provisions such as the prohibition on discrimination based on political and religious beliefs contained in the legislation relied on here by Ms Thiab.

Application of the law to these facts

In turning to how the law was applied here, it may be best to state very clearly that I personally do not agree with the concerns expressed by Ms Thiab. As far as I can tell the rules on vaccinations have been sensible and seem to have been effective in safeguarding the community during the pandemic. But that I might disagree with her views, does not mean that I support disciplinary action against her for politely expressing those views to her supervisors (and offering at the same time to provide evidence in support of her views.)

This is the approach that Palmer J took. His Honour concluded that, while it was appropriate for supervisors to express concerns about Ms Thiab’s views, the penalties that were applied to her went well beyond what was appropriate. There was an argument put at one point that Ms Thiab was disciplined for her “scientific” views rather than her “political views”. But Palmer J rejected this as a false dichotomy. As he said, in the area of public health, both types of considerations arise, and a view on appropriate health precautions can be both based on a view of the science, and be correctly described as a “political” view- see [164].

He examined the relevant Codes of Conduct that related to nursing, and concluded that in fact, in the context of a private discussion with other professional staff, what Ms Thiab had done did not breach any of the Codes- see eg [108]. He was scathing about the University disciplinary process, calling it a “travesty” – at [118]. Ms Thiab, he concluded, had been disciplined not because she had acted contrary to the codes of conduct, but for her beliefs.

[127]….[I]t was not Ms Thiab’s actual conduct which concerned [WSU staff]. Rather, they thought that she held anti-vaxxer beliefs and that those beliefs were undesirable in nursing practice. Once they had reached these conclusions they apparently considered it unnecessary to investigate precisely what she had said and done.

[128] No doubt Ms Hunt and Professor Heaton would say that if Ms Thiab had anti-vaxxer beliefs, there was a risk that she would act on them in her dealings with patients. On the evidence this was an insulting misjudgment of Ms Thiab’s professionalism. But even if it had not been, it shows that Ms Thiab’s beliefs, or assumed beliefs, were what Professor Heaton and Ms Hunt were responding to. I am satisfied that the University’s action against Ms Thiab was taken “because of” views and beliefs on her part.

(emphasis added)

His Honour concluded at [168] that the decisions to cancel her placements, and then to impose sanctions which prevented further placement, were unlawful as they contravened s 35, as they denied progression to her on the basis of her political beliefs. Other decisions may have been unlawful but were not specifically ruled on as they had not yet had an impact on progression.

It seems right to include his Honour’s concluding comments on what his orders did not mean. He was not preventing the University from making academic judgments about student work, or from dealing with actually proven misconduct:

[172] 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. 

[173] Nor does my decision necessarily prevent the University from taking action because of clinical or other professional misconduct by its students. In hindsight the University should [have] 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. 

(Emphasis added)

But what the judgment does affirm is that allegations of misconduct should be directed to proven actions, and not based on a blanket view about what a person who has certain political (or, one might add, religious) beliefs may or may not do. That is an important principle well worth making clear.