Review of Rejection - Complaint does not relate to discrimination or prohibited conduct - Complaint on behalf of another.

Anti-Discrimination Act 1988; ss 14, 15, 16, 22, 60, 6164(1)(b), 65, 72.

Tasmanian Civil and Administrative Tribunal Act 2021; ss 74, 75.

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

Elliot v Hobart City Council [2024] TASCAT 203.

1. Ms Cheryle Nadalin has applied to the Tasmanian Civil and Administrative Tribunal (the Tribunal) to review a determination of the Anti-Discrimination Commissioner (the ADC) rejecting her complaint which she indicated she was making on behalf of her cousin, Mr Raymond Blazely. The application is made pursuant to ss 65(2) and 65(3) of the Anti-Discrimination Act 1988 (the ADA).
2. As the application for review of the rejection of this complaint, although dated 21 August 2024, was received by the Tribunal on 26 August 2024, the Tribunal has jurisdiction to deal with this application as it is in writing and was received within 28 days of Ms Nadalin receiving the ADC's decision.

1. On 1 August 2024, the ADC received a complaint from Ms Nadalin dated 23 July 2024, in which she indicated she was "speaking for Mr Blazely", and was doing so not because he lacked capacity, but rather because of the "imminisity [sic] of fighting to regain his licence".
2. Attached to the complaint were an extensive series of documents and although somewhat difficult to distil from this material, it appears that Ms Nadalin's complaint of discriminatory conduct by the respondent towards Mr Blazely potentially related to his capacity to retain or obtain a drivers licence. This thus gave rise to the possibility that the asserted attribute was that of disability (s 16(k)). The attribute of age (s 16(b)) was also a possibility noting that at the time of the lodgement of this complaint, Mr Blazely was 97 years of age.
3. The relevant area of activity pursuant to s 22 of the ADA appeared to be the provision of facilities, good and services (s 22(c)).
4. The allegations may have amounted to direct discrimination (s 14) or indirect discrimination (s 15).
5. After a consideration of the complaint, by an assessment decision and reasons for decision dated 9 August 2024, the ADC rejected the complaint pursuant to s 64(1)(b) of the ADA because it did not relate to discrimination or prohibited conduct.
6. The ADC noted in this decision that "Ms Nadalin did not allege any breach of the Act in her complaint". The ADC went on to further state "nevertheless, I have carefully considered the complaint. I have been unable to identify any possible breach of the Act".
7. When determining that the ADC had been unable to identify any nexus (or connection or link) between Mr Blazely having his drivers licence cancelled and any attribute Mr Blazely may have had, the ADC also noted that in the material before it, the reason given by the delegate of the Registrar for Motor Vehicles for cancelling Mr Blazely's drivers licence was that "he had not passed his on road driving assessments."
8. In the ADC's view, "this is not an unlawful reason and does not go to an attribute".
9. Within the assessment decision and reasons for decision, under the heading "Complaint on behalf of another", the ADC correctly indicated that although it is permissible to make a complaint on behalf of another person pursuant to s 60(4) of the ADA, this can only be done on behalf of another person with the ADC's approval.
10. The ADC then went on to say "for the reasons given above, the complaint has not disclosed a possible breach of the Act. It has therefore not been necessary for me to go on to consider whether I should give approval for Ms Nadalin to make the complaint on behalf of Mr Blazely".

1. Section 72 of the ADA indicates the consequences upon reviewing the rejection (or dismissal) of a complaint.
2. Specifically with regard to the review of rejection, if I am satisfied that the ADC made the correct decision in rejecting the complaint, the complaint will lapse. Section 72 also provides that if on reviewing the rejection of the complaint I am not satisfied that the ADC made the correct decision, I am to refer the complaint back to the ADC for investigation.
3. It is clear that my powers to review the rejection of this complaint are also governed by the Tribunal's review jurisdiction under the Tasmanian Civil and Administrative Tribunal Act 2021 (the TASCAT Act), refer s 74(1) and s 75 of the TASCAT Act.
4. The law relating to the Tribunal's role in determining the review of a rejection and dismissal of a complaint pursuant to s 72 of the ADA, has been authoritatively stated by the Supreme Court to be a comprehensive merits review. This review process is not confined to the material which was before the ADC - see Porter J in the State of Tasmania v Anti-Discrimination Tribunal and ors [2009] TASSC 48 at [27]- [29].
5. Of particular relevance at [47] of this decision, Porter J stated:

Thus, when s72 speaks of the Tribunal being satisfied or not that the Commissioner "made a correct decision", it means that the question is whether the decision was the correct one on the material before the Tribunal. The extent of such material is to be governed by relevance. That is the interpretation which accords by the remedial nature of the legislation and which better promotes its objects.

1. Subsequent to the receipt of Ms Nadalin's application to review the rejection of the complaint on 26 August 2024, the Tribunal initiated a range of processes to advance the application for review to a position whereby a decision could be made in relation to it.
2. In accordance with Tribunal processes, the respondent was advised of the application to review by Ms Nadalin and requested to provide its advice as to whether or not it wished to participate in the review of rejection process.
3. On 19 February 2025 representatives of the respondent, being a delegate of the Registrar of Motor Vehicles, indicated that they did not wish to participate in the review of rejection application process.
4. Subsequently, directions conferences occurred through the Tribunal which resulted in the Tribunal's receipt of additional purportedly relevant documentation from Ms Nadalin and Mr Blazely. All of this material was considered by me prior to me conducting a directions conference by telephone on 19 November 2024.
5. The outcome of that directions conference was that Ms Nadalin and/or Mr Blazely were directed to provide any further correspondence they wished to be considered in this application by 24 January 2025. This time limit was subsequently extended to 24 March 2025 at which time Ms Nadalin was advised that, as agreed at the directions conference on 19 November 2024, upon receipt of any subsequently provided material from her or Mr Blazely, no further hearing would be undertaken, and I would determine this application to review the rejection of the complaint on the material I had before me, i.e. on the papers.
6. On 25 March 2025 the Tribunal received further correspondence from Ms Nadalin dated 21 March 2025.
7. I have considered all of the material provided to the Tribunal by the ADC along with all of the material provided by Ms Nadalin and Mr Blazely from the time the application of the review of rejection was referred to the Tribunal on 26 August 2024 and the documents and other material dated 21 March 2025 which the Tribunal received on 25 March 2025.

1. The ADC clearly rejected Ms Nadalin's complaint on the basis of s 65(1)(b) of the ADA indicting that the complaint did not relate to discrimination or prohibited conduct.
2. As was stated by Deputy President Grueber in Elliot v Hobart City Council [2024] TASCAT 203 at [26]:

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.

3. On the assumption that the complaint asserts direct and indirect discrimination, for that complaint to be successful, it is for Ms Nadalin to establish on the balance of probability that the direct and indirect discrimination has taken place towards Mr Blazelyon the basis of any prescribed attribute.
4. Even assuming that the prescribed attribute(s) in this complaint are disability and/or age, I agree with the ADC that neither on the evidence before the ADC nor on the evidence before me, has Ms Nadalin on the balance of probability established that direct and/or indirect discrimination has taken place towards Mr Blazely on the basis of either of these two attributes.
5. The preponderance of evidence clearly indicates that, although Mr Blazely is asserted to be an excellent driver in his mid to late nineties, he was not refused the granting of a drivers licence nor had his licence cancelled because of his age or any disability. The evidence clearly indicated that the reason for him not being able to retain or obtain a driving licence was because he was unable to meet the driving assessment criteria required for the obtaining of a drivers licence in the legislative schemes applicable to the Registrar of Motor Vehicles.
6. Mr Blazely had at least five opportunities to meet the prescribed criteria for obtaining a drivers licence between 4 August 2023 and 19 February 2024 but failed to satisfy those criteria on all occasions after on road testing.
7. Even after Mr Blazely's drivers licence was formally cancelled by the Registrar of Motor Vehicles on 4 March 2024 because he had not passed the on road testing criteria, it is clear that he continued to drive until 16 August 2024 when his drivers licence was surrendered, by Tasmania Police. The reason given was "seized by Smithton Police due to inability to stop driving".
8. Although Ms Nadalin's assertions that a driving test or assessment based on a driver's attaining of specified age (80) was discontinued by the Registrar of Motor Vehicles in 2012 may be correct, there was no evidence that the reason for Mr Blazely's drivers licence cancellation and/or inability to obtain a drivers licence was based on his age.
9. For all of the reasons indicated above I find that the ADC made the correct decision to reject the complaint and as a consequence pursuant to s 72(1) of the ADA, the complaint lapses.
10. As indicated previously in this decision, the ADC determined that as it had rejected Ms Nadalin's complaint, it did not need to consider whether it should give approval for her to make this complaint on behalf of Ms Blazely.
11. The ADC cited, in support of this position, an unreported decision of Chairperson Clues (as she then was) delivered in the Anti-Discrimination Tribunal jurisdiction on 24 March 2010.
12. A review of s 60 of the ADA provides a basis for Ms Nadalin to make a complaint on behalf of Mr Blazely, this being pursuant to s 61(f).
13. Although it is clear in s 60(4) of the ADA, that the approval of the ADC is required before a complaint can be made another person, having considered the reasoning of Chairperson Clues and applying it to this case, there was clear evidence of the relationship between Ms Nadalin and Mr Blazely (them being cousins), and that Ms Nadalin purported to be making the complaint on behalf of Mr Blazely who was a person against whom the alleged discrimination or prohibited conduct was directed.
14. In my view, this evidence would have enabled the ADC to grant the required approval for the making of Ms Nadalin's complaint on behalf of Mr Blazely.
15. For the reasons indicated previously in this decision, this is of no consequence to my findings regarding the application to review the rejection of the complaint.

1. I find the ADC's decision to reject the complaint was the correct decision and consequently, pursuant to s 72(1) of the ADA, the complaint lapses.

1. Pursuant to s 72(1) of the ADA, the complaint lapses.