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14 Int'l J. L. & Educ. 5 (2009)
Unfair, Unlawful, or Just Unhappy: Issues Surrounding Complaints of Discrimination Made by Students against their Universities in Australia

handle is hein.journals/anzled14 and id is 5 raw text is: UNFAIR, UNLAWFUL, OR JUST UNHAPPY? ISSUES SURROUNDING COMPLAINTS OF DISCRIMINATION MADE BY STUDENTS AGAINST THEIR UNIVERSITIES IN AUSTRALIA SALLY VARNHAMt UNIVERSITY OF TECHNOLOGY, SYDNEY, AUSTRALIA PATTY KAMVOUNIAS UNIVERSITY OF SYDNEY, AUSTRALIA I think it is most unfortunate that the appellant has engaged in such a barren exercise. He is clearly a person of some ability. One would hope that hereafter he concentrates on furthering his career rather than sparring at shadows.' Unfair treatment, discrimination or unsatisfactory results? Recent years have seen a significant increase in complaints of discrimination made to external bodies by students against Australian universities. Some complaints start and finish in specialist tribunals, others move to re-examination in the courts. Whatever course the actions take, they have many factors in common. Overwhelmingly, the complaints are precipitated by a decision ofacademic judgement. Almost universally, the students represent themselves while universities retain legal counsel. Frequently the tribunals concerned pay heed to the difficulties faced by a student in such a position, expressly recognising the possibility of a miscarriage ofjustice and stressing the need to ensure against this occurring. Invariably, while the members ofthe tribunal or the judge may show sympathy for the student in his or her plight, they are not satisfied that there was unlawful discrimination. Almost always, the complaints are dismissed or the actions are unsuccessful. Most universities now have detailed policies and procedures in relation to both review ofacademic decisions and equity and diversity. Why is it then that many of these matters take on 'a life of their own', far away from the pursuit of teaching and learning? In almost all cases, many hearings later and poorer in terms ofenergy and educational achievement, the students fail to achieve the result they seek. Is this because their claims are lacking in merit, is it that the disadvantages they face in complying with procedural requirements are insurmountable, or is it that the complainants wrongly see that a discrimination complaint is an easier path to justice than any other type of action? This article examines a sample of these complaints and considers why it is that students take this path. I INTRODUCTION Unfair, discriminatory or unhappy with results? The reports of courts and tribunals in Australia contain a significant number of discrimination complaints made by students against their universities. This is despite the fact that these universities have, almost universally, detailed policies and procedures for appeals and reviews, and to ensure equal opportunity. In addition, in relation to disability, all education providers are required to comply with the Commonwealth tAddress for correspondence: Dr Sally Varnham, Faculty of Law, University of Technology, Sydney, PO Box 123, Broadway NSW 2007, Australia. Email: Sally.Vamham@uts.edu.au 1836-9030 VOL 14, No 1, 2009, pp. 5-21 LvTEVATIONAL JOUVAL OF LAW & EDucAnoN 5

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