Cowen v Monash University (Review and Regulation) [2018] VCAT 694 (11 May 2018)

What is this proceeding about?

1. In 2015, Dr Shimon Cowen, an alumni of Monash University (Monash) had held honorary positions with Monash for many years. Over the years he had undertaken specific tasks for payment. In 2015, he held an Adjunct Research Associate position with Monash’s Australian Centre for Jewish Civilisation (the Centre).
2. Dr Cowen was also the Director of the Institute for Judaism and Civilisation (the Institute). The Institute has no affiliation with Monash University.
3. In early December 2015, Dr Cowen used his Monash email account to send to a group of municipal councillors a booklet which he described as, “a comprehensive briefing on [same-sex marriage] from the standpoint of the Judaeo-Christian tradition.”
4. Two local councillors raised issues with Monash via email.
5. One asked whether the Vice-Chancellor condoned the publication of what the councillor viewed as “blatant bigotry and homophobia” from a University email account (the Complaint). The Councillor copied the Complaint to Dr Cowen.
6. The other councillor advised Monash that Dr Cowen was “still using his” Monash “email address to lobby municipal councillors”. I refer to this below as ‘the Notification’. Dr Cowen does not seek the name of the ‘notifier’.
7. The University investigated the issue. The outcome for Dr Cowen was most serious. Monash’s Dean of the Faculty of Arts (the Dean) declined to continue his ongoing honorary appointment, in the context that at the time Monash was in the process of appointing him to an Associate position.
8. The Dean’s email advising Dr Cowen of the outcome said this action was taken because Monash had received “several complaints” concerning his use of his Monash email address to lobby members of the community concerning same-sex marriage in relation to his activities associated with his Institute, with the implication that the Institute is associated with Monash.
9. Dr Cowen appealed that decision to Monash’s Vice-Chancellor.¹ In a short 12 January 2016 email she advised she had considered Dr Cowen’s letter of appeal and the broader issue. She confirmed the Dean’s decision, saying she was aware of and endorsed that decision at the time it was made.
10. Under the Freedom of Information Act 1982 (FOI Act), Dr Cowen requested copies of all:
    1. Complaints received by the of the Vice-Chancellor’s Office and/or the Dean’s Office relating to his use of his Monash email account; and
    2. Correspondence to and from the Dean’s Office, and to and from the Vice-Chancellor’s Office, relating to revocation of his appointment as affiliate of Monash’s Faculty of Arts.
11. Monash released to Dr Cowen a set of redacted documents. Dr Cowen sought review of that decision by the then Victorian Freedom of Information Commissioner. When the Commissioner did not make a decision within the requisite timeframe, Dr Cowen sought review at VCAT on the basis that his request was taken to be refused.
12. In March 2017, the issue came before me for hearing. Dr Cowen represented himself. Monash was legally represented. I heard the case and reserved my decision.

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The offending email sent by Rabbi Dr Shimon Cowen:

On 11 Dec 2015, at 11:46 AM, Shimon Cowen <shimon.cowen@monash.edu> wrote:

Dear Councillor,

With the impending plebiscite on same-sex marriage, I thought it helpful to set out a comprehensive briefing on this matter from the standpoint of the Judeo-Christian tradition.

This took the form of a short booklet of talks which I, as a Jewish Rabbi (and son of a former Governor General of Australia, Sir Zelman Cowen), gave under the auspices of a Christian University, Campion College, in NSW. It sets out what I think is a shared perspective of the Abrahamic (Jewish-Christian-Islamic) faiths and perhaps wider yet.

I mailed the booklet to a number of Victorian Municipal Councillors. In the event that you did not receive a copy, or overlooked one which may have come in the mail, and would now like one please let me know. I received requests for some 100 copies from Councillors in NSW.

Even though you as a councillor may not be making statements on this matter, since you are close to networks of “grassroots” Australia, I thought you might be interested to see and share this material.

Please email me if you would like me to mail you a copy of this booklet at no charge. It is called “There is more than this…” I would be happy to send you more copies should you want them.

Yours Sincerely,
Rabbi Dr Shimon Cowen,
Director, Institute for Judaism and Civilization

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