Gupta v State of South Australia

The applicant's complaints 5 On 13 June 2021, Mr Gupta made a complaint to the Australian Human Rights Commission (AHRC) under s 46P of the AHRC Act. He alleged that the respondent, SAPOL, had unlawfully discriminated against him on the grounds of disability under the Disability Discrimination Act 1992 (Cth) (DDA) by issuing a fine for not wearing a seatbelt properly (seatbelt complaint). 6 The applicant's complaint was terminated on 24 March 2022 without inquiry under ss 46PF(1)(b) and 46PH(1B)(a) of the AHRC Act. The Delegate of the President (Delegate) was satisfied that the complaint was misconceived in that the complaint did not fall within an area of public life covered by the DDA and that the enforcement of road safety laws by the respondent in issuing the applicant with a fine was not a service provided by the respondent to the applicant. Further, the complaint lacked substance in that there was no evidence to suggest that the respondent had either directly or indirectly discriminated against the applicant. 7 In his complaint to the AHRC, Mr Gupta also raised the same complaint in relation to the fine for driving a motor vehicle without headlights (headlights complaint). 8 In the letter from the Delegate to Mr Gupta dated 24 March 2022, the Delegate informed Mr Gupta that the headlights complaint was neither accepted nor considered such that it did not progress as part of the seatbelt complaint. 9 Since the headlights complaint was not accepted and thus not terminated by the President, this Court does not have jurisdiction under the AHRC Act to determine the application alleging unlawful discrimination in relation to that complaint. Accordingly, this judgment proceeds in respect of the seatbelt complaint only. 10 I heard this matter on 21 July 2022. At the conclusion of the hearing I refused leave and indicated I would publish reasons in due course. These are those reasons.

PRINCIPLES 11 Section 46PO(1) of the AHRC Act provides that if a complaint to the AHRC has been terminated by the President under ss 46PE, 46PF(1)(b) or 46PH, and the President has given notice to any person under s 46PH(2) in relation to the termination, then an "affected person" in relation to the complaint may make an application to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), alleging unlawful discrimination by one or more of the respondents to the terminated complaint. 12 Pursuant to s 46PO(3A) of the AHRC Act, the application must not be made unless: (a) the court concerned grants leave to make the application; or (b) the complaint was terminated under paragraph 46PH(1)(h); or (c) the complaint was terminated under paragraph 46PH(1B)(b). 13 Since the complaint was terminated by the President pursuant to ss 46PH(1)(b) and 46PH(1B)(a), the applicant is required by s 46PO(3A) to seek the Court's leave to bring his application. 14 In James v WorkPower Inc [2018] FCA 2083 at [37] Mortimer J said that: I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are - at the least - not fanciful … I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level. 15 See also Abraham J in Matthews v Markos [2019] FCA 1827 at [37] citing Mortimer J above. 16 Charlesworth J in Budini v Sunnyfield [2019] FCA 2164 at [52] cited Mortimer J in WorkPower and said that: … in a case where a respondent to a complaint alleges that the allegations have no reasonable prospects of success, the Court may be guided by the same principles informing the exercise of discretionary powers such as that conferred by r 26.01 of the Federal Court Rules. It would not serve the interests of the administration of justice to grant leave to commence an action that would be liable to be the subject of an order for summary judgment in whole or in part either because: (a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or … (b) no reasonable cause of action is disclosed.

Applicant's submissions 17 First, Mr Gupta submits that his memory loss and chronic body pain fall within the definition of "disability" pursuant to s 4 of the DDA. In the circumstances of this matter, it is unnecessary to decide that question. 18 Second, Mr Gupta relies on the objects in s 3 of the DDA: The objects of this Act are: (a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of: … (ii) the provision of goods, facilities, services and land; and (iii) existing laws; and … (b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community… 19 Mr Gupta submits that penalising him for his disability offends the objectives of the DDA, in that the DDA does not require him to provide a medical certificate. He submits that any State law that requires otherwise is inconsistent with the DDA and is invalid pursuant to s 109 of The Commonwealth of Australia Constitution Act 1900 (Cth) (The Constitution). That submission may be dismissed quickly. 20 The Australian Road Rules, which apply to vehicles and road users on roads and road related areas under the Road Traffic Act 1961 (SA) provides in reg 264(2)(b) that a driver of a motor vehicle must wear an approved seatbelt that is properly adjusted and fastened, unless the driver is exempt pursuant to reg 267. 21 Regulation 267(3A) states: (3A) A person who is in, or on, a motor vehicle is exempt from wearing a seatbelt if - (a) the person or, if the person is a passenger, the driver of the vehicle is carrying a medical certificate that states a medical practitioner believes the person should not wear a seatbelt due to a medical condition or disability that the person has; and (b) the person is complying with any conditions stated in the medical certificate; and (c) no other law of this jurisdiction states that this subrule does not apply. 22 Regulation 267(4) then states: (4) However, the person is exempt under sub- regulation rule (3) or (3A) only if the person who is carrying the certificate immediately produces the certificate when an authorised person or police officer asks to see the certificate. 23 I do not consider that the requirements in regs 267(3A) and (4) are inconsistent with Commonwealth legislation such as to amount to an invalidity pursuant to s 109 of The Constitution. The Australian Road Rules do no more than provide for a requirement to produce a medical certificate in support of an exemption from the obligation to wear a seatbelt in accordance with the Australian Road Rules where a claim for exemption is made. 24 Third, Mr Gupta refers to s 5 of the Police Act 1998 (SA) (Police Act) for the purpose of submitting that the Police Officer owed him a "service" to protect him from harm which the Police Officer failed to do by issuing the fine. 25 Section 5 of the Police Act provides that: The purpose of SA Police is to reassure and protect the community in relation to crime and disorder by the provision of services to - (a) uphold the law; and (b) preserve the peace; and (c) prevent crime; and (d) assist the public in emergency situations; and (e) co-ordinate and manage responses to emergencies; and (f) regulate road use and prevent vehicle collisions. 26 This provision and the meaning of the word "services" was considered in Patrick v State of South Australia (No. 2) [2009] SAEOT 1 where her Honour Judge Trenorden, Member Bachmann and Member Jasinski, held that the complainant was not provided with services by SAPOL. 27 Mr Gupta submits that the facts in Patrick may be distinguished from the facts in his circumstances because the harm caused to Patrick was self-inflicted. He submits that the harm he suffered was caused by the Police Officer in that the Police Officer failed to provide a service and it was that failure which was discriminatory. He submits that if the Police Officer had provided the service and not issued the fine, he would have been saved from harm. As I understand the submission, the "harm" is the fine. I do not accept that when issuing a fine to Mr Gupta the Police Officer was providing a service for the reasons I set out below. 28 Mr Gupta also relies upon the decision of Spigelman CJ, Basten JA and Handley AJA in Commissioner of Police v Mohamed [2009] NSWCA 432; 262 ALR 519 that the conduct of Police Officers with respect to a request for assistance in relation to possible criminal activity, where protection of persons or property may be required, can involve the refusal or provision of "services" for the purposes of s 19 of the Anti-Discrimination Act 1977 (NSW). He submits that the Police Officer should have offered him assistance when she became aware that his seatbelt was causing him serious harm instead of issuing the fine. 29 Fourth, Mr Gupta alleges indirect disability discrimination within the meaning of the DDA because the Police Officer required him to wear a seatbelt properly when his chronic body pain and other medical conditions prevent him from doing so. He alleges he was disadvantaged by receiving the fine and threats of further notices. 30 Section 6(1) of the DDA provides the criteria for indirect disability discrimination: (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and (b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and (c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability. 31 I do not accept that Mr Gupta has been the subject of indirect disability discrimination for the reasons in [40] below.

Respondent's submissions 32 The respondent submits that the applicant's complaint of unlawful discrimination is misconceived and that the complaint does not fall within the ambit of the DDA on the basis that the issuing of an infringement notice is not a "service" because services provided by SAPOL are intended to benefit the community at large, not the recipient of the infringement notice. 33 The respondent refers to s 3(1) of the AHRC Act which defines "unlawful discrimination" as any acts, omissions or practices that are unlawful under a prescribed series of legislation, including Part 2 of the DDA. 34 Section 24 of the DDA provides that: It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability: (a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or (b) in the terms or conditions on which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or (c) in the manner in which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person. 35 The respondent refers to Farah v Commissioner of Police of the Metropolis [1998] QB 65, 78 as authority for the principle that in fulfilling its statutory duties, in some instances, police provide services to the public. The respondent submits that there is a need to focus on the position of the person alleging discrimination to identify whether services are being provided or refused to that person in the facts and circumstances of a particular matter: Robinson v Commissioner of Police (2012) 292 ALR 702; [2012] FCA 770 [167] (Yates J); Marchenko v South Australia Police [2020] SAET 168, [32] (Dolphin P). 36 In response to the applicant's reliance on Patrick the respondent submits that the Court held in that case that SAPOL, in arresting, charging and detaining an individual, are not providing a service to that particular individual but rather to the community at large in arresting, charging and detaining them in custody. It submits that in issuing the fine, SAPOL by its officer, is acting in accordance with its' duty to enforce the road rules as part of a service to the general public, not a service for the applicant. In that context, the respondent submits the matters set out in s 5 of the Police Act are not a list of services to be provided by police to Mr Gupta but a list of functions, the performance of which by SAPOL constitute the provision of services to the South Australian community: Patrick [33], [34]. That submission is clearly correct and I accept it. 37 On that basis, the respondent submits the provisions of the DDA are not enlivened. I accept that submission. In each case it will be necessary to identify the nature of the interaction between the Police Officer and the applicant. In this case, it is abundantly clear that the Police Officer was not providing a service to Mr Gupta. 38 As an alternative submission, the respondent submits that the applicant's complaint is lacking in substance based on the fact there is no evidence that the respondent has treated the applicant any differently to another person due to his disability and the respondent has discharged its duty in accordance with the road safety laws. 39 The respondent refers to reg 264(2)(b) which provides that a driver of a motor vehicle must wear an approved seatbelt that is properly adjusted and fastened, unless the driver is exempt pursuant to reg 267. 40 The applicant admits that he was not carrying a medical certificate at the time the fine was issued and when asked to do so he could not immediately produce the medical certificate. 41 The respondent submits that on this basis, the applicant is unable to show any direct or indirect discrimination against the applicant because irrespective of whether the applicant or any person had a disability, according to the Australian Road Rules if they had not been able to produce a medical certificate, they would be issued with a fine: reg 267(3A). Such construction is consistent with the text of the regulation and I accept that submission. It follows that there is no direct or indirect disability discrimination against Mr Gupta. 42 Finally, the respondent submits that the applicant's argument is fanciful, without merit and not reasonably arguable: James v Workpower Inc, [37] and that to allow the matter to proceed would be delaying the inevitable dismissal of the applicant's complaint with the result that the parties and the Court will incur unnecessary resources and expense. 43 There is no doubt in my view that the applicant's argument is without merit and not reasonably arguable. Leave should be refused.

CONCLUSION 44 The application for leave to commence proceedings pursuant to s 46PO(3A) of the AHRC Act is refused. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan.