1. Mr Fowler's application listed a claim for victimisation.
2. Discussion about this occurred towards the end of the hearing and the outcome of discussion about this ground was that Mr Fowler withdrew this part of his application. I therefore note this now and have made the appropriate order marking the claim for victimisation withdrawn.

The law - Section 75 - Victorian Civil and Administrative Tribunal Act 1998

1. Section 75 states:

75. Summary dismissal of unjustified proceedings

(1) At any time, the Tribunal may make an order summarily dismissing or

striking out all, or any part, of a proceeding that, in its opinion-

(a) is frivolous, vexatious, misconceived or lacking in substance; or

1. Parks' application is made on the basis that Mr Fowler's application is "frivolous,...misconceived or lacking in substance" as there is no real question to be tried and the application is bound to fail.
2. Parks conceded that there was a "high threshold" to be met before its application could succeed, that it bears the onus, that Mr Fowler's case should be taken at its highest and that the Tribunal should not apply technical or artificial rules in construing Mr Fowlers' application.
3. Parks argued that there was no discrimination, and in the alternative that even if there was, Mr Fowler's application could not succeed, given Parks' statutory obligations in the context of s.75 of the EO Act.
4. I do not intend to analyse the case law relating to the summary dismissal provision (s.75 of the VCAT Act) as the parties agreed on the substance of this.
5. But I will note the following observations enunciated in case law concerning the application of this section.
6. First, a decision to dismiss an application for strike out is not ..." a de facto validation of the substance of that application" Isaacs v Sosnowski t/as Industrial Chemicals (unreported VCAT, Mc Callum and Carleton MM, 9 December 1998). Second, where an application is made to strike out a proceeding because the respondent claims a good defence - strikeout should not be granted unless the tribunal is satisfied that the defence... " so completely answers the claim that the claim is manifestly hopeless and untenable" Pizer, Annotated VCAT Act 4th Ed at p 274 in reference to Norman v Australian Red Cross Society (1998) 14 VAR 243).

1. Parks' written and oral submissions can be summarised as follows.
2. It is arguable that Mr Fowler has a protected attribute by way of his personal association with indigenous persons working for him. His membership of a group of other pipi fisherman is not a protected attribute.
3. Parks provided "services" as that term is defined in the EO Act in that it is responsible for managing access from the car park at the end of Nobles Rocks Road to the Beach. Although the Beach could also be accessed via a management vehicle track, providing access to the Beach from this track was not a service as it was not... "a place that members of the public are permitted to access".
4. Parks posed the relevant question as follows - is Mr Fowler, in being denied four wheel drive access to the Beach, being ..."treated unfavourably because of his association with indigenous people?"
5. Parks say the answer to this question is no. It says this because the steps it has taken to control four wheel drive access to the Beach are required as part of its legal responsibilities as the Park manager.
6. Parks referred to legislation outlining how this responsibility arose. (see para 10 of its submission dated 10 October 2014). The statutory framework set out was not in dispute.
7. As well as the legislation, there are a number of documents that it submitted are particularly relevant:
   • The Discovery Bay Parks Management Plan as amended in 2006 (the Management Plan); and
   • the Set Aside Determination dated 6 May 2014 (the Set Aside). Also handed to me was an earlier Set Aside in the same terms, dated 13 August 2007.
8. The Management Plan sets out management objectives for the Park, including the control of four wheel driving. Section 6.2 deals with "Vehicular access" and notes the Beach track access as including, parking near the beach and "2WD". Also noted is an area that is set aside for dune buggies operated by the Portland Dune Buggy Club in the Discovery Bay Dunes.
9. The Set Aside is made under the National Parks Regulations 2003 (NP Regulations) for among, other things, setting aside a road or track in a park ... "to which entry of vehicles or a class of vehicles is prohibited"[1]. The Set Aside then determines areas set aside as... "All of the park except for roads and tracks open to two wheel motor vehicles as listed on table 4 of the plan" [2]. Reference is also made to an allowance for the Portland Dune Buggy Club at the recreational area at Swan Lake.[3]
10. Parks say that this Set Aside authorises it to restrict four wheel drive access to the Beach and that this is the conduct complained of, i.e. it locked the gate at the management vehicle track and erected bollards at the management vehicle track and the walking track to stop four wheel drive access. This action it says was not directed solely at Mr Fowler, but was action taken to limit four wheel drive access to all members of the public. At the hearing, unsworn evidence was given that this decision would have been made at the local office level.
11. Parks further say that reg. 94 of the NP Regulations prohibits the use of a vehicle in an area that is set aside by a determination under reg. 93.
12. It was submitted that even if there was found to be discrimination, then s.75 of the EO Act permitted this as it was necessary... "to comply with, or is authorised by" a provision of legislation other than the EO Act. It was put that the Set Aside is "an enactment" for the purpose of this section.

1. It was put on behalf of Mr Fowler that there were two protected attributes relevant to this case. The first was that Mr Fowler employed fishermen who were of aboriginal descent in his business. The second was that he was a member of a group of three pipi fishermen, each of which held a pre-2005 fishing licence.
2. It was submitted that Parks had engaged in direct discrimination whereby an officer of Parks made the statement " I'd like to see your DNA" to an associate of Mr Fowler. Further, in-direct discrimination occurred when Parks took steps to prohibit four wheel drive access to the Beach.
3. Mr Fowler started to access the Beach after a decision was made by the Department of Environment and Primary Industries to limit pipi fishing in the area of Discovery Bay to the east of the Beach.
4. The primary arguement put forward for Mr Fowler was that keys allowing access to the Beach were made available to others, and the restrictions established by the Set Aside were not uniformly enforced in that other groups such as fishermen from South Australia and the Dune Buggy Club were routinely given four wheel drive access to the Beach and Park.
5. It was also put that while Parks maintained that the actions taken by it was in relation to the general public, Mr Fowler, being a fisherman and therefore dependent on the commercial harvesting of pipis, was not "part of the public at large".
6. It was argued that the Set Aside was not enforceable against a person who held a fishing license such as Mr Fowler or a traditional owner. Reference was made to regulations 7 and 9 of the NP Regulations and section 38 (1B) of the Fisheries Act 1995.
7. Further reference was made to the principles to be considered by the tribunal when dealing with an application for summary dismissal and it was reaffirmed that this action should only be taken where Mr Fowler's case could be shown to be manifestly hopeless.

1. Parks responded to Mr Fowler's submissions.
2. Access by other groups to the Beach was via a locked gate and the key was held by Parks staff. Access is provided in limited circumstances such as: the annual shorebird count; fox baiting; the collection of stranded fishing gear; ad hoc patrols by fisheries officers; access by the Glenelg Nature Trust in relation to a water restoration project; and as required, for the rescue of walkers or various research activities.
3. Parks relied on reg. 8 of the NP Regulations and reg. 13 of the Land Conservation (Vehicle Control) Regulations 2013 (the LCVC Regulations) as authority for the proposition that these regulations effectively allowed four wheel drive access to the areas subject to the Set Aside where that person was acting as a servant or agent of Parks Victoria or in accordance with the direction or written permission of Parks Victoria.
4. It was also disputed that a key would be given to a party or individual to access the Set Aside area. Parks indicated that the usual process was that the keys are held at the local office and a Parks officer would attend and unlock the gates to allow access and then lock the gate again when access was completed.
5. In relation to the Portland Dune Buggy Club, reference was made to section 26A of the National Parks Act 1975 (NP Act) which it submitted provided limited ongoing rights to the club to use the Park. The use by the club of the Park was further set out in the Management Plan.
6. In relation to submissions that the Set Aside is not enforceable against a licence holder under the Fisheries Act and a traditional owner, Parks stated that Mr Fowler is not a traditional owner, as that term is defined in the NP Regulations, and that the exemption provided in reg. 7 of these regulations only relates to licences/authorisations granted under the NP Act, not the Fisheries Act.
7. Parks also submitted that section 38 (1B) of the Fisheries Act does not apply to fishing activities in the Park, as the Park is a coastal park and falls into a different category as set out in s. 18 of the NP Act. The Park is not the type of park referred to in s. 38 (1A).

1. It is noted that while extensive submissions were made, in particular by Parks, no affidavits or sworn evidence was tendered by either party in relation to this matter.
2. My conclusions therefore in relation to factual matters are based on what is set out in the submissions and other unsworn evidence given at the hearing.
3. The facts surrounding this application, as far as could be ascertained on the material presented, are that Mr Fowler commenced accessing the Beach after a direction was made by Department of Environment and Primary Industry prohibiting his access to an area previously used for fishing in Discovery Bay.
4. It appears that he accessed the Beach to enable him to transport pipis from the Beach out of the Park. There is no suggestion that his access to the Beach for the purpose of his fishing was denied. The limitation related only to four wheel drive access. For example, it was put by Parks during the hearing that one option available would be the use of trolleys to remove pipis from the Beach.
5. There are two ways to access the Beach. One is by way of a walking track which runs from a publicly accessible car park to the Beach. From the map provided it appears that this walking track would be approximately 150 m in length. The other point of access is via a management vehicle track. At the end of this track is a gate preventing access further along the track and bollards preventing access around the gate. Again, based on the map provided it would appear that the distance from the gate to the Beach is approximately 500 -750 metres.
6. Parks indicated that in respect of the gate at the end of the management vehicle track, that this gate had been regularly vandalised over many years and on the 19th February 2014 the gate was repaired and locked and bollards erected. In relation to the walking track - bollards were installed on the 27th of February 2014 which effectively prevented access by four wheel drive vehicles.

1. Mr Fowler states that he has a protected attribute under s. 6(q) of the EO Act as he employs aboriginal persons and is therefore associated with aboriginal persons. He also states that he has a protected attribute as a member of a group of three pipi fishermen who held a fishery licence pre-2005 (no legal basis was suggested for this).
2. While not accepting that Mr Fowler has a protected attribute by way of his fishing licence, Parks concedes that, for the purpose of this application, Mr Fowler does have a protected attribute under section 6(q) of the EO Act.

1. Parks concedes that in respect of managing the walking track access to the Beach that is it is providing a service within the meaning of s. 44 of the EO Act.
2. It made submissions at the hearing that the service was not provided in relation to the management vehicle track because this particular track was not accessible to the public. While I do not consider it necessary to make a ruling on this point, I think that it is arguable that while this track is not accessible to the public for four wheel drive access, it is available for access by walkers. It seems to me that Parks may therefore be providing services in relation to this track as well.

1. Discrimination includes direct or indirect discrimination because of an attribute.
2. To prove direct discrimination Mr Fowler would need to show that Parks has treated or proposed to treat him unfavourably because of his association with aboriginal people. To prove indirect discrimination, Mr Fowler would have to show that Parks, by preventing his four wheel drive access to the Beach has, or is likely to have, disadvantaged him and that this is not reasonable.
3. It is sufficient to show that Parks actions are a "substantial reason" for any direct discrimination.[4]
4. Whilst not clearly set out in written submissions and verbal submissions on his behalf, it appears that Mr Fowler is claiming that the recent decision to lock the gate at the end of the management vehicle track, and to erect the bollards at the walking track and the management vehicle track were actions taken by Parks because of his association with aboriginal people. Mr Fowler alleges that this action has resulted in him being treated unfavourably or disadvantaged him where that action is not reasonable.
5. Parks denies this. It claims its actions in locking the gates and erecting the bollards is simply steps taken to prevent public access to the Beach in accordance with the Management Plan and the Set Aside, therefore preventing access which would otherwise be in breach of the LCVC Regulations and the NP Regulations.

1. Parks is responsible for among other things the management of Victorian parks and reserves [5].
2. Specific authority to manage the Park is provided under the NP Act. Management includes being responsible for preserving and protecting indigenous flora and fauna [6].
3. An additional responsibility is to prepare a management plan for the Park [7]. This plan was developed in 2004 and amended in 2006. As stated earlier, the Management Plan specifically addresses the issue of vehicle access to the Beach.
4. This legislation and the Management Plan therefore provide the framework authority for Parks to, among other things, take action to control vehicle access to the Beach.
5. This action is then given legislative force through reg. 93 1(a) and (b) of the NP Regulations which allows the Secretary to make a determination "setting aside" a road or a track to which... "the entry of vehicles or a class of vehicles is prohibited".
6. Determinations were made in August 2007 and more recently in May 2014.
7. The area set aside in both determinations is noted as... "all of the park except for major roads, minor roads or vehicular tracks and the transit corridor as listed on table 4 of the plan." As stated earlier, table 4 of the Management Plan allows two wheel drive access to the Beach.
8. Regulation 13 of the LCVC Regulations then creates an offence for using a motor vehicle in a "restricted access area" [8] and on public land except where the use is permitted. Regulation 94 of the NP Regulations prohibits the use of a vehicle in an area that is set aside by a determination under reg. 93.
9. It is these regulations that therefore "give teeth" to the Set Aside and Management Plan, such that if a person accessed the Beach contrary to the Set Aside then they may be prosecuted under reg. 13 of the LCVC Regulations or reg. 94 of the NP Regulations.
10. Parks can discourage use of the Park that is prohibited. For example it may use signage to warn Park users about access limitations, it could erect gates as it did at the end of the management track gate, it may patrol the Park and initiate prosecution of people who are in breach of these regulations. But whether or not these steps have been taken, Parks took further steps in February 2014. The actions it took effectively prevented four wheel drive access by locking the management track gate and erecting bollards.
11. The unsworn evidence provided at the hearing was that bollards have not been erected at this track previously and that the actions taken were in response to unauthorised four wheel drive access to the Beach. No evidence was provided to me outlining the details of any unauthorised access.
12. The alternative, as suggested by Mr Fowler as the rationale for this action is linked to his association with aboriginal people. He indicated that at a hearing he would call evidence of racial "slurs" to substantiate this claim.
13. Mr Fowler also asserts that other groups are exempted from the Set Aside requirements. This is conceded by Parks who referred to a number of organisations who access the Beach for specific reasons.
14. Mr Fowler takes this matter further. During the hearing reference was made to the Management Plan which sets out a number of strategies under section 6.2 Vehicular Access and the heading "Management Strategies" - including to "develop and implement protocols for access to the planning area by ... together with stakeholders as appropriate".
15. Mr Fowler asserts that as a commercial fisherman, who is entitled to access the Park for fishing, he is a "stakeholder" and therefore would have expected Parks, as part of its Management Plan, to consult with him regarding an access protocol in the same way that a protocol was presumably developed for other groups who have been given permission to access the Beach via a four wheel drive vehicle.
16. Parks sets out the various instances where groups and other organisations were given permission to access the beach by four wheel drive. No evidence or submissions were made in relation to the process developed by Parks to meet the management strategy referred to above in para. 72 of these reasons.
17. While the submissions presented by Parks are clear in terms of the authority for taking the steps it has taken, there remains questions to be answered in relation to why it took the steps it did in February 2014 to physically prevent four wheel drive access to the beach; and to further explain the processes used whereby some groups/organisations are authorised to access the Beach for specific purposes but not Mr Fowler, and the protocols, if any, that have been developed and implemented as per its Management Plan.
18. In short, Mr Fowler has raised relevant issues that should be determined at a full hearing of the evidence and legal submissions.

1. Mr Fowler referred to various provisions of the NP Regulations and Fisheries Act suggesting that these provisions had the effect that the Set Aside was not enforceable against him.
2. This was disputed by Parks and during the hearing questions were put to Mr Fowler's legal representative to explain these submissions.
3. In my view, these submissions were not supported and it is unclear to me the relevance of these submissions to a claim for discrimination.
4. There is however another exemption that is relevant and must be considered in this case.
5. Parks say that even if it was found that it had discriminated against Mr Fowler that section 75 of the EO Act permits this discrimination.
6. This section states as follows:

_(1) A person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of - _

(b) an enactment, other than an enactment under this Act.

(2) For the purpose of subsection (1), it is not necessary that the provision refer to discrimination, as long as it authorises or necessitates the relevant conduct that would otherwise constitute discrimination.

1. The written submission by Parks and submissions made at the hearing were that it was authorised to deny four wheel drive access to the Beach pursuant to the Set Aside, which it submitted is an "enactment" as that term is defined in section 5 of the EO ACT[9], as well as the LCLV Regulations which make it an offence to use a vehicle to access a restricted area except where permitted.
2. Mr Fowler, in his written submission to the tribunal, did not address this issue at all and when his legal representative was given an opportunity to comment at the hearing, the submission made was brief.
3. Section 75 has two arms: necessary to comply with; or authorised by.
4. Parks has not set out which arm it is relying on, nor are there any submissions from either party about the meaning of the terms "necessary" or "authorised".
5. I note that there is authority on these points, including the cases of Waters v Public Transport Corporation [1991] HCA 49 and Aitken & ors v State of Victoria - Department of Education & Early Childhood Development. [2012] VCAT 1547. There may well be other cases that the parties would refer to in support of their cases.
6. Having read the above cases, there is clearly a question about whether s.75 should be interpreted broadly or narrowly. Section 32 of the Charter of Human Rights and Responsibilities Act 2006 may also be relevant.
7. On the relatively brief submissions put to me it would be premature and inappropriate for me to make a determination about whether s.75 of the EO Act provides a complete defence for Parks, such that Mr Fowler's case could be treated as manifestly hopeless.
8. A decision about the application of s.75 is more appropriately dealt with by way of full legal submissions and evidence (if required) - this should occur at the full hearing of the matter.

1. In conclusion, I am not satisfied that Mr Fowler's cases is so hopeless that it should be struck out without further evidence and submissions as to the law. I am required to consider Mr Fowler's application at its highest and questions remain in relation to whether Parks has discriminated against him in the provision of services in the Park and the application of the section 75 exemption.
2. I will therefore dismiss the application and direct that the matter be listed for a directions hearing.
3. I note that Parks provided me with a template for further directions at the end of the hearing, but given the proximity to the end of the year and the possibility of witnesses being called I am reluctant to make directions without further input from the parties.
4. As indicated at the commencement of the hearing, I will also mark the application as it relates to victimisation withdrawn.

[8] "restricted access area" is defined as ..." any area of public land to which a declaration under regulation

[9] enactment means a rule, regulation, by-law, local law, order, Order in Council, proclamation or other