Pursuant to s 72(1) of the Anti-Discrimination Act 1998 the complaint lapses.

Anti-Discrimination - Review of Dismissal - Misconceived - Not related to discrimination or prohibited conduct.

Anti-Discrimination Act 1998; ss 3, 14, 16, 17, 18, 22, 64, 65, 71, 72, Div 4;

Tasmanian Civil and Administrative Tribunal Act 2020; ss 74, 75.

State of Tasmania v Anti-Discrimination Tribunal and other [2009] TASSC 48;

Khalafallah v Tasmanian Civil and Administrative Tribunal [2023] TASSC 8;

Assal v Department of Health, Housing Community Services [1992] EOC 92;

Lalitha Nagasinghe v T A Worthington Qc and Adelaide Medical Centre of Women and Children [1994] FCA 1387; [1994] 53 FCR 175;

Langley v Niland [1981] 2 NSWLR 104;

Elliot v Hobart City Council [2024] TASCAT 203;

Shayne Arkley v CatholicCare Tasmania and Andrea Witt [2017] TASADT 3;

Ebber v Human Rights and Equal Opportunity Commissioner [1995] FCA 183; [1995] 129 ALR 455;

Jin v The State Of South Australia [2016] FCCA 986.

The decision has been anonymised for the purpose of publication.

1. The complainant has applied to the Tasmanian Civil and Administrative Tribunal (the Tribunal) to review a determination of the Anti-Discrimination Commissioner (the ADC) dismissing his complaint against the respondent.
2. The application is made pursuant to s 71(3) of the Anti-Discrimination Act 1998 (the ADA).
3. As the application for the review of the dismissal of the complainant's complaint was dated 28 February 2025, the Tribunal has jurisdiction to deal with this application as it was made in writing within 28 days of the complainant's receipt of the written statement of reasons for the dismissal of the complaint, those reasons having been provided to the complainant on 18 February 2025.

1. On 12 June 2024, the complainant made a complaint to the ADC alleging that he had been directly discriminated against by the respondent (s 14) on the basis of his attribute of disability (ss 16(k) and 3 of the ADA) in connection with the provision of facilities, good and services (s 22(1)(c) of the ADA).
2. In his complaint the complainant also made allegations that he had been the subject of prohibited conduct by the respondent which offends, humiliates, intimidates, insults or ridicules another person on the basis of his attribute of disability contrary to s 17 of the ADA.
3. The complainant also made an allegation that he had been victimised by the respondent contrary to s 18 of the ADA.
4. By an assessment decision and reasons for decision dated 31 July 2024, communicated to the complainant on 7 August 2024, the ADC advised the complainant that it had rejected allegations of direct discrimination (s 14), and victimisation (s 18). It did so pursuant to s 64(1)(b) and (g) of the ADA stating that the complaint did not relate to discrimination or prohibited conduct, and the subject matter of the complaint may be more efficiently or conveniently dealt with by a state authority or a Commonwealth statutory authority.
5. Based on its review of the complaint material, the ADA accepted the complainant's complaint in relation to his allegation of a breach of s 17 of the ADA, being the allegation that he was subject to offensive, humiliating, intimidating, insulting or ridiculing conduct by the respondent on the basis of his attribute of disability.
6. As a consequence of its acceptance of part of the complaint relating to the respondent's alleged breach of s 17 of the ADA, on 7 August 2024 the ADC invited the respondent to provide its response to the complaint. The respondent did so on 10 September 2024.
7. On 6 February 2025, by virtue of an investigation decision and reasons for decision dated 18 February 2025, the ADC advised the complainant that his complaint had been dismissed pursuant to s 64(1)(a) and (b) on the basis that it was misconceived and did not relate to discrimination or prohibited conduct.

1. The Tribunal's powers to review the dismissal of the complainant's complaint arise under s 72 of the ADA.
2. Section 72(1) of the ADA provides that if upon reviewing the dismissal of the complaint, the Tribunal is satisfied that the ADC made the correct decision in dismissing the complaint, the complaint lapses. Section 72(3) provides that if, on review the dismissal of the complaint, the Tribunal is not satisfied that the ADC made a correct decision in dismissing the complaint, the Tribunal is to deal with the complaint as if it were an inquiry under Division 4 of the ADA.
3. It is clear that the Tribunal's powers to review the dismissal of this complaint are also governed by the Tribunal's review jurisdiction under the Tasmanian Civil & Administrative Tribunal Act 2020 (the TASCAT Act), refer ss 74(1) and 75 of the TASCAT Act.
4. It has been authoritatively stated by the Supreme Court of Tasmania that the review process pursuant to s 72 of the ADA is a comprehensive merits review. This review process is not confined to the material which was before the ADC. So much was stated by Porter J in State of Tasmania v Anti-Discrimination Tribunal and Others [2009] TASSC 48 at [27-29]. Of particular relevance at [47] of this decision, Porter J stated:

Thus, when s 72 speaks of the Tribunal being satisfied of not that the Commissioner has made a correct decision", it means that the question is whether the decision was the correct one of the material before the Tribunal. The extent of such material is to be governed by relevance. That is interpretation which accords with the remedial nature of the legislation which better promotes its objects.

1. The ADC dismissed the accepted part of the complainant's complaint on two bases pursuant to s 64(1) of the ADA.
2. The first was on the basis of s 64(1)(a) which related to the complaints being misconceived or lacking in substance. These words were considered by Brett J in Khalafallah v Tasmanian Civil and Administrative Tribunal [2023] TASSC 8. In this decision, his Honour at [22], referred to the comments by Sir Ronald Wilson in his role as President of the Human Rights and Equal Opportunity Commission in Assal v Department of Health, Housing Community Services [1992] EOC 92 where at [409] he stated:

The claim which presents no more than a remote possibility of merit or which does no more than hint at a just claim would ordinarily, I think, be found to be lacking in substance.

3. At para [23] in Brett J's decision in Khalafallah his Honour referenced the decision of Von Doussa J in the Federal Court decision of Lalitha Nagasinghe v T A Worthington Qc and Adelaide Medical Centre of Women and Children [1994] FCA 1387; [1994] 53 FCR 175 in which Von Doussa J agreed with President Sir Ronald Wilson's formulation and re-stated it as:

Whether there was any material before the Inquiry Commissioner which indicates any real possibility of there being some connection between the allegation and the relevant Act.

4. With regard to the word 'misconceived', in Langley v Niland [1981] 2 NSWLR 104 at 107, it was stated whilst 'misconceived' means 'founded upon a wrong idea as to the facts'.
5. The second basis of the dismissal of the complainant's complaint was pursuant to s 65(1)(b) of the ADA which indicated that his complaint did not relate to discrimination or prohibited conduct.
6. As was stated by Deputy President Grueber in Elliot v Hobart City Council [2024] TASCAT 203 at [26]:

The phrase "does not relate to discrimination", s 64(1)(b) requires consideration of whether the matters complained of might amount to discrimination under the Act. The focus of s 64(1)(b) is on the complainant's case. It involves consideration of whether the complaint displays an insufficient connection to discrimination rather than a determination of whether discrimination has or has not occurred. It cannot mean a final determination that the conduct complained of amounts in fact and in law to discrimination. That is a matter for the Tribunal on inquiry. The functions of the Commissioner are listed in s 6 of the Act. They include to investigate and seek to resolve complaints, but not to conduct an inquiry.

7. It is incumbent upon a complainant to prove a link or nexus between the respondent's alleged conduct and the claimed attribute, in this case disability.
8. So much was clearly stated in Chairperson Webster's decision (as he then was) in Shayne Arkley v CatholicCare Tasmania and Andrea Witt [2017] TASADT 3 referencing the Federal Court decision in Ebber v Human Rights and Equal Opportunity Commissioner [1995] FCA 183; [1995] 129 ALR 455 at 468, and the Federal Circuit Court of Australia decision in Jin v The State Of South Australia [2016] FCCA 986 at 56. At paragraph [45] of Arkley he stated:

This is, Mr Arkley, in order to defeat an application for summary dismissal, needs to have sufficient material by way of evidence to establish there is a sufficient nexus or link between the respondents' behaviour and Mr Arkley's attribute, namely age. Although Mr Arkley holds the belief there is a nexus between his treatment at the hands of the respondents and his age, there is no evidence which directly supports that link or from which that nexus can be inferred. Accordingly the ADC was correct in dismissing this complaint.

The statutory provision relevant to this review

1. The relevant statutory provisions in relation to prohibited conduct is set out in s 17 of the ADA as follows:

17. Prohibition of certain conduct and sexual harassment > > (1) A person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute referred to in section 16(e), (a), (b), (c), (d), (ea), (eb) and (k), (f), (fa), (g), (h), (i) or (j) in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed. > > (2) A person must not sexually harass another person. > > (3) Sexual harassment takes place if a person -

(a) subjects another person to an unsolicited act of physical contact of a sexual nature; or

(b) makes an unwelcome sexual advance or an unwelcome request for sexual favours to another person; or

(c) makes an unwelcome remark or statement with sexual connotations to another person or about another person in that person's presence; or

(d) makes any unwelcome gesture, action or comment of a sexual nature; or

(e) engages in conduct of a sexual nature in relation to another person that is offensive to that person -

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed.

Prohibited conduct on the ground of an attribute - s 16

1. Relevantly s 16 prescribes that a person must not discriminate against another person on the grounds of any of the following attributes:

(k) Disability which is defined in s 3 as:

disability means any of the following that presently exists, previously existed but no longer exists, may exist in the future, whether or not arising from an illness, disease or injury or from a condition subsisting at birth:

(a) a total or partial loss of the person's bodily or mental functions;

(b) total or partial loss of a part of the body;

(c) the presence in the body of organisms causing or capable of causing disease or illness;

(d) the malfunction, malformation or disfigurement of a part of a person's body;

(e) disorder, malformation, malfunction or disfigurement that results in the person learning differently from a person without the disorder, malformation, malfunction or disfigurement;

(f) a disorder, illness or disease that affects a person's thought processes, perceptions of reality, emotions or judgment or that results in disturbed behaviour;

(g) reliance on a guide-dog, wheelchair or other remedial or therapeutic device;

1. The relevant area of activity is defined in s 22 of the ADA and states:

22. Areas of activity > > (1) Subject to the exceptions and exemptions specified in Part 5, this Act applies to discrimination and prohibited conduct, other than inciting hatred, by or against a person engaged in, or undertaking any, activity in connection with any of the following: > > ... > > (c) provision of facilities, goods and services; > > ...

1. The ADC summarised the complainant's allegations against the respondent to be:
   • In May 2024, he called CATT (Crisis Assessment and Treatment Team) to report that he was suicidal.
   • He was told by CATT that they would ring him. They did not ring him back, and this made him feel more suicidal.
   • He presented at the Burnie Hospital (North West Regional Hospital) (the Hospital) and was kicked out without being medicated, because they stated he was abusive and aggressive. He was provided with Panadol only.
   • The Hospital did not medicate him properly.
   • The Hospital said the complainant was not suicidal and this in turn made him become suicidal.
   • The complainant alleged that this could cause harm to Tasmania Police officers as the Hospital is aware that he was overdosed by police.
   • He has told the Hospital that he would "die by police" and the Hospital did nothing.
   • He stated that the Hospital is aware that they have psychologically tortured him, and that this is why they did not treat him.
2. The ADC considered the material provided by the respondent, and noted that within this material were references to the complainant having been released from prison on 18 May 2024, with Hospital records indicating over 40 presentations by him to the Hospital for the balance of the month.
3. The ADC noted that the respondent had narrowed down to three dates in May 2024 in which it understood the complainant may be referring to in his complaint. This was based on the complainant's reference to being administered paracetamol.
4. The respondent provided doctors' and nursing notes for these presentations and a schedule of presentations in respect to which the complainant's interactions with the Hospital in May 2024. In summarising these notes, the respondent has stated the following:
   • At no time was the complainant advised that he was not suicidal as the notes summarise the presenting problem being - green - suicidal ideation - thoughts of throwing himself in front of traffic compliant with Olanzapine given on DCNWRH - yesterday AM - compliant with ATAZHxMH.
   • It is acknowledged the complainant was presenting with suicidal ideation as he had been doing so on his previous presentations, whereby a plan was in place with CATT providing the necessary support.
5. The evidence before the ADA indicated that between 18 May 2024 until 31 May 2024 there were 10 entries which recorded the complainant having suicidal ideation.
6. The respondent asserted that the complainant was not kicked out of hospital and at no time was he advised that he was not suicidal.
7. The respondent provided evidence that the complainant was triaged, assessed, reviewed appropriately with medical staff determining that he was not suffering from acute mental health or medical conditions that needed admission. The complainant also possessed appropriate medication.
8. The respondent submitted that in relation to the complainant's complaint it is difficult to envisage how the assessment and treatment of the complainant which was considered clinically appropriate, could amount to conduct in breach of s 17 of the ADA.
9. Considering all of this evidence, the ADC dismissed the complainant's complaint on the basis that it was misconceived or lacking in substance or that it did not relate to discrimination or prohibited conduct.

1. Although the complainant was given the opportunity to provide any further information he desired to progress his application for the review of the dismissal of his complaint once it was before the Tribunal, he has not done so.

1. In addition to the material the respondent provided to the ADC during its investigation (response dated 10 September 2024), it also provided to the Tribunal an affidavit of Mr ND with annexures (a copy of the complainant's medical records for May 2024), dated 15 May 2025.
2. The respondent also provided to the Tribunal on 2 July 2025 extensive written submissions in support of its position that the ADC had made the correct decision to dismiss the complainant's complaint.

1. Having considered all of the evidence before both the ADC and that before the Tribunal, I am satisfied that the ADC's decision to dismiss the complainant's complaint on the basis of s 64(1)(1), being that it was misconceived or lacking in substance, was the correct decision.
2. The evidence provided by the respondent to both the ADC and the Tribunal clearly indicates that the bulk of the complainant's allegations within his complaint have not factual basis. This included a summary of the notes for the complaint in the May period of 2024.
3. This evidence, and that detailed within the affidavit and attachments of Mr ND of 15 May 2025, clearly meet the definitions of the words "lacking in substance", and/or being "misconceived", as detailed in the authorities cited previously in this decision.
4. On all of the evidence, I am also satisfied that the ADC made the correct decision to dismiss the complainant's complaint on the basis of s 64(1)(b) that the complaint did not relate to discrimination or prohibited conduct.
5. The ADC correctly stated the law regarding the test for the offensive conduct provisions of the ADA.
6. The ADC correctly determined that although the complainant may have felt that the conduct of Hospital staff towards him in May 2025 may have been offensive, humiliating, intimidating and insulting, on an objective assessment of the evidence, a reasonable person having regard to all of the circumstances would not have anticipated the complainant would have been offended, humiliated, intimidated or insulted.
7. For all of these reasons, I am satisfied that the ADC made the correct decision to dismiss the complainant's complaint.

1. With the ADC's decision being found to be correct to dismiss the complainant's complaint, the complaint lapses.

1. Pursuant to s 72(1) of the Anti-Discrimination Act 1998, the complainant's complaint lapses.