1. This proceeding is struck out under section 75 of the Victorian Civil & Administrative Tribunal Act 1998 as the proceeding is misconceived and lacking in substance.

2. The respondent file and serve written submissions in support of its application for costs by 30 March 2009.

3. The Complainant file and serve written submissions in opposition to the costs application by 30 April 2009.

1. The Equal Opportunity Act 1995 prohibits discrimination against a person based upon an attribute possessed by that person. Well-known attributes in relation to which discrimination is prohibited under the Act include age, sex, and impairment. This case concerns an allegation of discrimination on the grounds of political belief or activity
2. The respondent in this case is the Victorian branch of the Australian Labor Party. What is commonly known as the Australian Labor Party is an unincorporated association consisting of constituent branches in each state and territory - one of which is the respondent to this proceeding, which is itself also an unincorporated association.
3. Although Mr Geddes has made allegations in this case against the national executive of the Australian Labor Party, the complaint has been made, and dealt with in the HREOC, as a complaint made against only the Victorian branch of the Australian Labor Party. If the complainant wished to bring a complaint against any other entity, he would have to first make that complaint to HREOC. So I will deal with this application as being a case against only the Victorian branch of the Australian Labor Party.
4. Mr Geddes says that the Victorian branch has discriminated against him in the way it dealt with a disciplinary complaint against him. He says he was treated in a way which was in breach of the rules of natural justice. He says he was treated in this way because of his opposition to the policies of the Party and because he was not a member of the ruling faction in his branch.
5. The Respondent has brought this application under section 75 of the Victorian Civil and Administrative Tribunal Act 1998. The respondent says that this claim is obviously hopeless, obviously unsustainable in law, and is bound to fail.
6. The respondent says that the only way in which Mr Geddes could succeed under the Equal Opportunity Act would be if he could establish that he was discriminated against in the provision of services to him by the Victorian Branch of the Australian Labor Party, (section 42) or if he could establish that the Victorian branch of the Australian Labor Party is a club (within the definition of section 60 of that Act.)
7. The respondent says that even if Mr Geddes could establish all the facts he has alleged in this complaint, he could not succeed under s42 or s60 of the Act.

1. Merv Geddes has been a member of the Australian Labor Party for 23 years. It was not really clear in the evidence so far filed as to whether he was a member of only the ALP (Victorian branch) or the ALP (National) or both. For the purposes of this strike-out application I will presume that he will be able to establish at trial that he is a member of both.
2. Mr Geddes says that he was disciplined by the respondent in April of 2007 for the offence of "disloyalty to the party". He was expelled from the party for a period of five years. This was because in the 2006 state election campaign, Mr Geddes handed out 'How to Vote' cards for an independent candidate who was standing against the selected Labor candidate for the seat of Morwell. To do such a thing is clearly against the rules of the respondent, which requires each member to "work and vote for the selected labor candidate", and Mr Geddes conceded as much.
3. As far as I can understand his complaint, he does not protest about the fact that disciplinary action was taken against him. However, he says that the way in which he was disciplined, and particularly the five year disqualification which was given to him, reveal discrimination against him because he was dealt with far more harshly and in a far more peremptory fashion than other members of the Labor Party who have in the past committed a similar offence.
4. He says that his treatment was because he was not a member of the ruling faction of the Labor Party in his branch and also because he was not willing to support the candidate who he believed had an unsound reputation and was not eligible to stand for the seat.
5. He regards the sentence imposed on him as being the equivalent of a life sentence and a demonstration that there has been impermissible discrimination against him by reason of his stance against the ruling faction in his branch.

1. Mr Geddes does not appear to have had the benefit of legal advice in framing his complaint. In truth it appeared to me that he has brought this complaint because he wishes to re-agitate the political issues surrounding the ALP's selection of its candidate in Mr Geddes' branch for the 2006 election. However, insofar as the facts that I have described relate to his remedies under the Equal Opportunity Act, I understand the complainant's case to be as follows:
   • (a) The complainant says that the ALP has provided services to him within the meaning of section 42 of the Equal Opportunity Act and has discriminated against him in providing those services. The services he identifies are the services of dealing with the complaint against him under the respondent's rules and the general preparation for the hearing, and including the hearing itself.
   • (b) In addition or alternatively, he says the respondent is a club within the meaning of that term in section 60 of the Act, and that the respondent has discriminated against him in depriving him of membership, or in its unfair treatment of him has subjected him to "any other detriment"

1. Not all acts of discrimination are unlawful. To be unlawful, an act of discrimination must fall within one or other section of the Equal Opportunity Act 1995. Section 60 of the Act extends the coverage of the Act to include discrimination against club members. If this complaint is to come within s60, then the complainant must prove that the respondent is a club within the definition of that word in the Act.
2. If the complainant is successful in showing that the respondent is a club, he must then also prove that it has discriminated against him by depriving him of membership, so as to come within s60(d), or by subjecting him to any other detriment to come within s60(e). I presume that what the complainant is saying is that he has been denied membership of the Respondent, or alternatively the way in which he was disciplined, which he says was because of his political agitation within the ALP, constitutes a detriment under s60(e).
3. Therefore, the first question is whether or not the respondent is a club. A club is defined in s4 of the Act. In the context of this application it means a social, recreational, sporting or community service club, or a community service organisation -

(b) that directly or indirectly receives any financial assistance from the state or a municipal council.

1. I interpose that there is no evidence before me that either sub-sections (a) or (b) apply to the respondent. However, counsel for the respondent conceded that the respondent may well come under sub-paragraph (b) in that it receives financial assistance under the Electoral Act, and possibly from other sources. I will therefore proceed on the basis that the requirements of sub-section (b) will be able to be established if this matter proceeds to a hearing.
2. It is clear that the ALP cannot sensibly be described as a social, recreational, or sporting club. Section 60 can therefore only apply to it if the respondent can be defined as a community service club or a community service organisation.
3. There have been several Federal Court decisions about the meaning of the words "community service organisation" in income tax law. This is because a community service organisation is in some circumstances not subject to income tax, or is liable to be taxed at a lower rate. The Australian Tax Office has put out an income tax guide for non-profit organisations and the respondent referred to the definition of community service purposes in that guide as an illustration. The document reads in part as follows:

"Community service purposes are altruistic - that is, community service organisations are established and operated with regard to the wellbeing and benefit of others.

Community service organisations promote, provide or carry out activities, facilities or projects for the benefit or welfare of the community or any members who have a particular need by reason of youth, age, infirmity or disablement, poverty or social or economic services."

"Organisations that seek to advance the common interests of their members are not altruistic and so cannot be community service organisations. If an organisation's main purpose is lobbying or political, its income will not be exempt."

This approach to the characterization of community service organisations is reflected in the decision of Victorian Women Lawyers v Federal Commission of Taxation [2008] 170FCR 318.

1. Thus, the respondent argues, the respondent, being a political party registered under the Commonwealth Electoral Act 1918 and plainly having the object of promoting the election of its members to parliament, cannot be described as an altruistic organisation. It is not a community service organisation because its main purpose in existing is to lobby for the acceptance of its own political viewpoint, not to serve the community as a whole.
2. There are, however, some anti-discrimination jurisdictions in which discrimination by clubs is prohibited, and in which the definition of a club in the relevant legislation includes a political organisation. I was directed to s4 of the Sex Discrimination Act 1984 (Commonwealth), s4 of the Disability Discrimination Act 1984 (Commonwealth), the definition sections of the Queensland Anti-Discrimination Act 1991, and the West Australian Equal Opportunity Act 1984. The respondent says that the clear omission of the word 'political' from the definition of club in the Victorian legislation shows a clear desire on the part of the Victorian parliament not to extend the benefit of the Act to members, or would be members, of political organisations.
3. In further support of this analysis the respondent asks me to consider the practical consequences if the contrary was the case. If discrimination on the grounds of political activity or industrial activity was actionable against a political party, the political party could not exclude from its ranks or discipline those who held opposing political beliefs to the beliefs which were the raison d'être of that political organisation.
4. When I queried counsel for the respondent on how the conundrum she had described played itself out in those states in which political discrimination was prohibited and in which clubs were defined to include political parties, I was told that there are other elements of the definition of services in those states, which avoided the absurdity.
5. As I have said, Mr Geddes represented himself in this hearing. I allowed him to file written submissions after the conclusion of the case. In his submissions, he referred me to the Macquarie dictionary definition of a club as meaning a "group of persons organised for a social, literary, sporting or political purpose." This definition underscores the fact that a political organisation can be commonly described in the community as a club.
6. However, it also lends emphasis to the respondent's submission that the absence of the word "political" in the definition of club in the act is deliberate. Parliament has considered the question of political activity in other sections of the act - adding political belief or activity to the list of attributes in respect of which discrimination is prohibited. It is unlikely that Parliament would have simply overlooked the fact that a political party might be thought of within the community as a club. It is more likely that this type of club was specifically excluded by the use of the exclusive definition in the Act.
7. I have set out these matters in detail even though strictly speaking on the facts presented by the complainant, s60 of the Equal Opportunity Act does not in any event apply to his claim. This is because he asserted at the hearing that he was not a member of the respondent at the relevant time as his application for membership had not been properly processed, and that he had not signed the "pledge" which is a necessary condition of membership, in the relevant year.
8. Although I explained to Mr Geddes that if he was to assert he was not a member of the respondent, this might remove any rights he may otherwise have had under s60 of the Equal Opportunity Act, I am not confident that he understood that his submission on this issue undermined one of his potential grounds of complaint. I have therefore considered the application of s60 in detail notwithstanding the factual submissions he made.
9. In my view s60 has no application to the respondent. I accept the respondent's submissions that the essential nature of a political party is different to that of a community service organisation. It is because of this difference that those states that have included political parties within the reach of anti-discrimination legislation have needed to specifically include reference to political parties in their definition. I know of no Victorian authority on the application of s60 of the Victorian Equal Opportunity Act to a political party and am not prepared to extend the definition without authority.
10. It is logical that a political party should not be identified as providing a community service, because the very raison-d'etre of a political party is to advance its own interests. It exists to advance the common interests of its members, and to work to elect its own members to parliament. It may be that the manifesto of a political party is to improve the common good, but in seeking to advance the ideas contained in that manifesto the party is clearly acting to advance its own political viewpoint and interests.
11. In my view there is no further factual enquiry which could alter the characterization which I have made. Even if Mr Geddes could prove all the facts he asserts, he has no way of proving that the respondent is a club within the limited definition found in the Victorian Act.
12. Thus, Mr Geddes' claim is bound to fail unless he can establish that the respondent provided services to him within the definition of services in s42 of the Equal Opportunity Act.

Does the respondent provide services to the complainant?

1. Section 42 of the Equal Opportunity Act provides that a person must not discriminate against another person -
   • (a) by refusing to provide goods or services to the other person;
   • (b) in the terms on which goods or services are provided to the other person;
   • (c) by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her.
2. Section 42(2) provides that the above sections apply whether or not the goods or services are provided for payment. There are some exceptions to s42, but none of those exceptions are relevant in this case.
3. The Complainant is clearly not making a complaint in respect of the provision of goods to him by the Respondent. So the question is, what, if any, services does the Complainant say that the respondent provides to him?
4. Some incidents of membership of the respondent may clearly be described as services - for instance provision of food or beverages at party functions or the sale of books and magazines (these may also be described as goods provided to the complainant by the respondent). However, Mr Geddes does not complain in relation to these activities. What is it that the respondent has provided to him, or failed to provide to him, which is the subject of this complaint?
5. The word 'services' is defined in s4 of the Act. In contrast to the exclusive definition of "club" in the Act, the definition of "services" is not an exclusive definition. It is a definition which "includes, without limiting the generality of the word" the following;

(a) access to and use of any place that members of the public are permitted to enter;

(b) banking services, the provision of loans or finance, financial accommodation, credit guarantees and insurance;

(c) provision of entertainment, recreation or refreshment;

(d) services connected with transportation or travel;

(e) services of any profession, trade or business, including those of an employment agent;

(f) services provided by a government department, public authority, state owned enterprise or municipal council -

but does not include education or training in an educational institution.

1. It is clear from the authorities to which I have been referred that it is important to define exactly what the service is alleged to be, before analysing whether or not the statutory definition applies. I have found this difficult, as Mr Geddes has not been able to pinpoint precisely how his complaint comes within the definition of services under the Act.
2. He says that his complaint against the respondent is that:

"1. I was not accorded natural justice as supported by recommendations by the ALP National Appeals Tribunal Member, Sue Walpole on 8th April 2008

1. The decision was unlawful as per 1 above
2. The ALP breached their own rules and did not accord fairness or natural justice specifically under Rule 20.2 I received notification from the State organiser, not the State Secretary as prescribed under this rule
3. The ALP breached their own rules and did not accord fairness or natural justice specifically under rule 20.5.5 which states that penalties should be taken from this Rule for offences under Rule 20.5.1 not from another Rule where no evidence is offered
4. The ALP breached their own rules and did not accord fairness or natural justice specifically under rule 20.8.3. Contrary to this rule the State organiser, not the State Secretary sent the complaint well outside the requirement under the rules of 7 days
5. The ALP breached their own rules and did not accord fairness or natural justice specifically under Rule 20.9.2 which states that the parties must attend. I had advised that I would not attend until after enactment of an enquiry I had requested and its results were known. I was concerned that I would be scapegoated. I did not receive the option of another date when such flexibility was shown to other parties in other disputes.
6. The ALP breached their own rules and did not accord fairness or natural justice specifically under rule 20.10.1 requiring compliance with the rule of procedural fairness. The breach is apparent in all of 1-6 as detailed above."
7. In reproducing the above claim, I have not reproduced the complainant's references to attachments but I have read those attachments and understand them to be part of his claim.
8. From his above description of his claim, combined with the facts Mr Geddes asserted at the hearing, it seems to me that his argument must be that the services provided to him are either or both of the following -
   • (a) the offering of membership in the respondent organisation;
   • (b) the facility of settling of disputes provided through the rules of the respondent; and the making of binding decisions as to disputes between himself and other members.
9. Thus I characterise the claim as being a claim that the principles of natural justice and fairness embodied in the rules of the respondent organisation were not extended to Mr Geddes because of his political views, and that this political discrimination led to the respondent withdrawing the facility of membership from him.
10. I was referred to a discussion of the scope of the word 'services' in IW v City of Perth [1997] 191 CLR1.It is a decision which shows the importance of defining the functions which are said to be services as precisely as possible. The case concerned a claim of discrimination against a local council, which had refused an application for the planning approval for a drop-in centre designed to assist persons suffering from AIDS. A significant issue in the case was whether the local council, in processing the planning application, and in making a decision to refuse planning permission, was engaged in providing a service to the applicant.
11. Another significant question in that case, which is not directly relevant to my enquiry, but which appears to have formed a significant part of the outcome of the case , was whether the refusal of planning permission was the equivalent to the refusal of service within the framework of the antidiscrimination legislation which the Court had to consider.
12. In that case all of the Justices of the High Court made observations as to the meaning of the word services. Justices Dawson and Gaudron observed at page 23 that -

"services, a word of complete generality, should not be given a narrow construction unless that is clearly required by definition or by context"

and the following appears in the joint judgment of Brennan CJ and McHugh J at page 11 -

"The term 'services' has a wide meaning. The Macquarie Dictionary relevantly defines it to include 'an act of helpful activity'; 'the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance'; 'the organised system of apparatus, appliances, employees, etc, for supplying some accommodation required by the public'; 'the supplying or the supplier of water, gas, or the like to the public'; and 'the duty or work of public servants'.

Although the case was ultimately decided on other grounds, the majority view in IW was that the giving of planning approvals by a city council to members of the public came within the definition of services for the purpose of the relevant antidiscrimination legislation.

1. I was also referred to the case of AB v Registrar of Births, Deaths & Marriages [2006] 235 ALR147 where Heerey J held that the provision of a birth register and the facility to alter the name in a birth register was a service because it was an activity of benefit to the applicant. Once again, the respondent in that case was a branch of government, offering its services to the public at large.
2. By contrast, in Rainsford v State of Victoria [2007] 167 FCR1, Sundberg J decided that the provision of transport and accommodation to prisoners on behalf of the State was not a service because it could not be described as helpful or beneficial to the prisoners concerned. In that case, the function was that of the transport of prisoners. The prisoner claimed that in transporting him between prisons, the state provided a service. It was held that one must ask the question whether or not the function was helpful or beneficial to the relevant class of persons to which the person alleging discrimination allegedly belongs (page 17 of the judgment.) In that case, the function may well have been of benefit to society generally, but could not be said to confer a benefit on the complainant, or other members of his class.
3. Counsel for the respondent pointed out that there has been no case in which a quasi-judicial function or a disciplinary function has been held to be a service. In IW, Brennan CJ and McHugh commented on the inappropriateness of characterising a quasi-judicial role as a service. This was a minority judgment, but the majority judgments do not contain a clear statement of principle to the contrary. It is true that Gummow J observed that a council could perform a statutory function, in this case refusal of a planning application, and simultaneously provide a service. I have not had the benefit of hearing legal argument on behalf of the complainant on this issue. But it seems to me that there is a clear difference between the exercise by a Council of its statutory functions for the benefit of all of its ratepayers, and the exercise of internal disciplinary powers by a private organisation.
4. In Bandella v State of Victoria [2002] VCAT 91 Deputy President McKenzie considered whether a criminal trial could be described as a service to the accused and decided that it could not. She expressed the view that to be a service under the scheme of the Equal Opportunity act, which is directed at outlawing a refusal to provide a service, it must be a service which was capable of being refused. It also seems to me that it must be a service which the respondent is capable of withholding. Otherwise, it makes no sense to consider whether a respondent has discriminated in refusing to provide the service.
5. Further, in the Secretary- Department of Justice & Industrial Relations v The Anti-Discrimination Commissioner [2003] TASSC 27; [2003] 11 TASR 324 it was determined that the Director of Public Prosecutions did not provide a service in deciding whether or not to institute criminal proceedings.
6. The characterisation of a function as a service can be difficult, particularly given my responsibility to give a full and beneficial interpretation to the term, but not an interpretation which is strained.
7. In the case before me the role of the respondent in offering the facility of membership to the complainant is not in my view a service. Although the definition of services in the Act is not exclusive, it is notable that each of the functions referred to in the definition focus on the provision of service of a kind ordinarily provided to the public at large. If failure to offer membership, or the withholding of membership to private organisations was properly characterised as a service, then the reach of section 42 of the Act would extend to all private organisations. In my view this would be a very strained interpretation of the section and I reject it.
8. Further, the action of the respondent in providing a disciplinary process, culminating with a decision of its disputes Tribunal, is in my view not to be regarded as a service under the Act. It is not a function which confers any benefit, advantage or welfare on the complainant. It is not a facility offered to the public. The respondent is obliged under its rules to put the procedure in place - it has no discretion not to do so.
9. In any event, there is a question in this case as to whether the facility of settling disputes was an activity engaged in by this respondent. The rules under which the complainant was disciplined are the rules of the National body. The resolution to expel him was made by the National executive of the Labor Party, not this respondent.
10. The complainant has pointed out that his membership fees to the respondent include an amount for Goods & Services Tax. He cannot understand how it is that the respondent can be said to be not providing a service if GST is paid on the membership fees. As I have earlier pointed out, it may be that there are aspects of the relationship between complainant and respondent in which the respondent does in fact provide a service. The complainant drew my attention to the fact that the respondent makes sales of books and other publications, T-shirts, stickers, and organises fundraising functions.
11. However, the complainant makes no complaint about the provision of these services.
12. There is no further factual enquiry which could bear on the issue of whether or not the respondent's failure to offer membership to the complainant, or its implementation of its disciplinary processes against the complainant , constitutes a service under the Act.
13. It follows therefore that this complaint is obviously hopeless, obviously unsustainable in fact or in law, and is bound to fail - to use the language of Norman v Red Cross Society [1998] 14 BAR 243 at p247.
14. The complaint is therefore dismissed pursuant to s75 of the VCAT Act.

1. There were many issues raised by Mr Geddes which have not been directly addressed in these reasons. Mr Geddes told me that he has taken this proceeding because he wants to demonstrate that his actions in refusing to support the endorsed Labor candidate in the 2006 election was justified because that member was not of sound character. He clearly wishes to revisit the political issues which led to his expulsion.
2. He also complains at the severity of the sentence of five years disbarment, which he says is the equivalent of a life sentence to a person of his age. He believes he has been vindicated in his criticisms of the Victorian branch of the Labor Party by the investigation which took place culminating in a report of Sue Walpole. That report identified that there had been procedural flaws in the original decision to expel him from the party. He wishes to place before the Tribunal mitigating circumstances in relation to that decision and what he sees as the unfairness of the way he was dealt with in comparison to the way other members of the party have been dealt with.
3. I am, however, of the view that none of these matters can be appropriately dealt with in the proceeding before me for the reasons I have expressed.
4. I am aware that it is a very serious matter to strike out a complaint without the hearing of evidence. It deprives Mr Geddes of his chance to have this claim heard in the ordinary way and I should therefore exercise caution before making this order. I am also aware that in determining this application I should proceed as if Mr Geddes is able to establish all of the allegations which he makes at trial. However, in this case there is in my view no prospect that Mr Geddes will be able to maintain his claim under the Equal Opportunity Act even if all of the evidence which he has referred to in his written documents or referred to in his submissions to me is accepted.
5. I am conscious that the Equal Opportunity Act is remedial legislation, and therefore in constructing the Act I should give preference to the construction which would promote a purpose or object underlying the Act over a purpose or construction which would not promote the purpose or object of the Act. The purpose of the Act includes the purpose of re-enacting and extending the law relating to equal opportunity and discrimination. The objectives of the Act are to provide recognition and acceptance of everyone's right to equality of opportunity and to eliminate as far as possible discrimination against people by prohibiting discrimination on the basis of various attributes
6. In my view, however, the real dispute between the parties case centres on whether the respondent afforded natural justice to the complainant in its internal disciplinary processes. It is not a case about equality of opportunity, or the elimination of socially unacceptable discrimination. In my view it would be artificial and a strained interpretation for the issues identified by Mr Geddes in this case to be dealt with under the rubric of anti-discrimination legislation.