The applicant ticked a box to indicate that the unfavourable treatment he complained of occurred in the provision of goods, services or facilities. The letter enclosed with the form included a lot of information about the applicant's accommodation, and it is clear that the complaint was also dealt with unfavourable treatment in relation to accommodation. This is a claim of direct discrimination in the provision of goods, services and facilities, and accommodation. The complaints engage the provisions of sections 7, 8, 20 and 21 of the Discrimination Act 1991. Greater detail of the complaints is given below.

The form included a complaint of vilification on the ground of race. This claim is made under section 66 of the Discrimination Act 1991. Further, the applicant said that he had been victimised because he made a discrimination complaint in the past. This is a complaint brought under section 68 of the Discrimination Act 1991. The relevant sections of the Discrimination Act are set out in a schedule to these reasons for decision.

The applicant was notified that the complaints were closed because the Commission was satisfied that they lacked substance in a detailed letter dated 8 January 2010. The applicant was advised of his right to have the complaints referred to the Tribunal.

The proceedings started when the Commission referred the complaints to the Tribunal by letter sent on 16 March 2010 at the request of the applicant. The history of the proceedings is relevant to a consideration of whether the Tribunal has observed procedural fairness in deciding to dismiss the complaints under section 32 of the ACAT Act.

A directions hearing was held on 7 April 2010. At that hearing the complaints were adjourned generally with the agreement of the parties. It was intended that the applicant and the respondents or the respondents' representatives would meet, so that the applicant could discuss his complaints in detail with them. The Tribunal was not involved in the meeting.

The Tribunal was told that the meeting was delayed because the complainant had concerns about his accommodation that he wished to address with the respondent Commissioner for Social Housing. The Tribunal was advised that a meeting took place on 2 July 2010 and that shortly after, the applicant suffered a significant family bereavement. He could not participate in a further meeting or in any Tribunal hearing for a little while.

A directions hearing was held on 27 October 2010. The applicant asked for an adjournment because he continued to have major concerns about his accommodation that made it difficult for him to focus on the proceedings. Another meeting involving staff of the Commissioner for Housing was proposed to see whether the concerns could be resolved. The Tribunal encouraged the applicant to seek legal assistance from a community legal service. He was given information about services that might be available for him. The complaints were adjourned for further directions to 1 December 2010. The applicant did not appear at the adjourned directions hearing but the Tribunal was able to contact him and he participated by telephone. After some discussion, the directions hearing was adjourned again to 2 February, with the Tribunal proposing to issue directions that would require the complainant to particularise his complaints, file witness statements and other evidentiary material on which he relied to support the complaints.

As a result of a delay within the Tribunal the directions were not issued until the day of the next directions hearing - 2 February 2011. The directions required the applicant to provide detailed statements in relation to each of his grounds of complaint, to file any witness statements made by any person on whose evidence he wished to rely and to file any other material that he intended to rely on, together with a list of the orders that he wished the Tribunal to consider making. The directions included an explanation of what was required. Directions such as these are common place in tribunal hearings and assist to ensure that the Tribunal and each party knows the case that each other party intends to present at hearing. The complaints were listed for further directions on 6 April 2011.

On 30 March 2011, the applicant wrote to the Tribunal asking if he could have further time to file his documents and if the directions hearing listed for 6 April 2011 could be adjourned because he was unwell. His request was accepted. The time for filing documents was extended to 19 May 2011. A further directions hearing was listed for 1 June 2011.

On 1 June 2011 the applicant explained that he had been unable to prepare documents because of health difficulties, problems with his resources, ongoing housing difficulties and the lack of any legal assistance. The directions hearing was adjourned for a period of four weeks to 29 June 2011.

The Tribunal was concerned about the trouble the applicant was having preparing documents. It was difficult to work out the details of the matters about which he complained because he described his complaints in very broad and wide ranging terms. The applicant had made a comment about his preference for giving evidence and making his submissions orally. He confirmed that he would be the only person to give evidence on his behalf. I gave thought to the applicant's comments and on 8 June 2011, wrote to the parties to ask for their response to a proposal to proceed to hearing on the basis of oral evidence alone.

The issue was discussed at the directions hearing on 29 June 2011. On that day the applicant explained that he still had problems in relation to his accommodation and that there were other difficulties impacting on his ability to provide documents. The respondents consented to orders that set a date for the applicant to make an oral statement of facts and contentions and to give his evidence in relation to all his complaints.

In order to ensure procedural fairness to the respondents, orders were made to allow the respondents time, at the conclusion of the applicant's presentation of his case, to obtain and review the transcript and to then indicate whether they wished to proceed with a full hearing or to make an application (the possibility of which had been foreshadowed) under section 32 of the ACAT Act.

There was an oral hearing of the applicant's complaints on 22 July 2011. The applicant gave evidence, made a detailed statement and produced a number of documents in support of his case. The Tribunal asked him some questions and there was some limited questioning on behalf of the respondents. He was not subjected to what could be described as a rigorous cross examination of his evidence.

On 29 August 2011, the Tribunal wrote to the respondents to ask them to indicate how they proposed to proceed. The respondents' representative advised the Tribunal that he was waiting for confirmation of his instructions. A further enquiry was made on 23 September 2011. The respondents' representative wrote saying that he was expecting instructions to file applications under section 32 of the ACAT Act. On 3 October 2011, the Tribunal made orders requiring the filing of any such application, together with written submissions in support, by 28 October 2011. The documents were filed and served as required.

The applicant was given several weeks after service of the section 32 applications and submissions to prepare for the hearing. The hearing took place on 7 December 2011. The respondents' representative spoke to his written submissions supporting the section 32 applications. The applicant made oral submissions and was allowed to present more evidence in the form of documents which he relied on to support his complaints. Documents that the applicant had sent to the Tribunal after the hearing of 22 July 2011 were also accepted as part of the applicant's case.

The Tribunal made orders dismissing each complaint on 13 January 2012.

1. Sections 32(1)(a) and 32(2)(b) of the ACAT Act provide the Tribunal with a power to dismiss an application if the Tribunal considers that the application is frivolous and vexatious. This is a generic power that may be exercised in relation to various matters that come before the Tribunal under a range of authorising laws. The power can be exercised on application or by the Tribunal on its own initiative[1]. It can be described as a summary dismissal power. Its operation in relation to complaints under the Discrimination Act 1991 was considered by the Tribunal in the matter of Gindy v The Chief Minister and ACT Government & Others [2011] ACAT 67.

2. The phrase "frivolous and vexatious" can be used in the context of an action that is brought to harass or annoy a party. I accept that that particular meaning is not relevant to these complaints. I accept that Mr Harrison's purpose is not to harass or annoy anyone. I accept that he has genuinely held grievances about things that have happened in the past and, indeed, things that were occurring during the course of the proceedings in relation to his accommodation and a range of other matters.

26. The phrase is not limited in its meaning and application to such circumstances. It is a term of art that is applied in legal proceedings to describe the absence of a cause of action generally[2] and it is this broader meaning that the respondents say is relevant to Mr Harrison's complaints.

1. The approach that should be taken to applications for summary dismissal in the context of discrimination matters was considered by the Victorian Court of Appeal in State Electricity Commission Board v Rabel[3]. The principles were summarised by Senior Member Wolters of the Victorian Civil and Administrative Tribunal in Jamieson Mary v The Australian Workers Union & Another[4]. In that case, the application for dismissal was made under a section of the Victorian Civil and Administrative Tribunal Act 1998 which is broadly similar to section 32(1)(a) and 32(2)(b) of the ACAT Act. Senior Member Wolters described the principles in terms that can be re-stated as set out below, to apply equally to proceedings under section 32 before this Tribunal.
   • (i) An application can be made under section 32 at any time in the course of proceedings. The Tribunal can also consider exercising the powers in section 32 on its own initiative at any time in the course of proceedings.
   • (ii) The procedure to be followed when considering the exercise of the powers in section 32 is in the Tribunal's discretion but must, of course, be consistent with the principles of procedural fairness.
   • (iii) The Tribunal can determine whether it should exercise the powers in section 32 on the basis of statements of facts and contentions and on submissions alone, or by allowing the parties to put forward further material, including documentary and oral evidence.
   • (iv) It is a serious matter for the Tribunal, in an interlocutory proceeding to deprive a party of the chance to have their application heard in the ordinary course of a full hearing. The power should therefore be exercised with caution and consistently with the objectives set out in section 6 and the principles set out in section 7 of the ACAT Act as well as any objectives of the relevant law that authorises the substantive application.
   • (v) If the Tribunal is proceeding on its own initiative, the Tribunal must be satisfied on all the material before it that the case should be dismissed. If the Tribunal is proceeding on the basis of an application, the applicant for summary dismissal bears the onus of showing that the case should be dismissed.
   • (vi) A power to summarily dismiss or strike out an application is designed to prevent abuses of process. The applicant for summary dismissal must show, or the Tribunal when proceeding on its own initiative must be satisfied, that the complainant's case is manifestly hopeless or obviously unsustainable or that it could not, on any reasonable view, justify relief.
   • (vii) A complaint can be dismissed or struck out if it is obviously unsustainable in law or in fact.
   • (viii) If the Tribunal is satisfied that the complaint is lacking in substance in respect of any element that the complainant must prove in order to substantiate the complaint at a full hearing, then the complaint can be dismissed.
   • (ix) A distinction should be drawn between the complaint or claim itself and the evidence which is to be given in support of it. A complaint should not be dismissed or struck out as lacking in substance merely because it does not, in itself, contain the evidence supporting the complaint.
   • (x) If a party indicates that the whole of their case is contained in the material before the Tribunal, the Tribunal can determine the matter by asking whether, on all the material before it, taken at its highest, there is a question of real substance that should be resolved through a full hearing process.
   • (xi) However, if a party indicates that there is other relevant evidence they can call to support their claim and the Tribunal does not permit that evidence to be called, the Tribunal cannot determine the matter on the basis that the party's material contains the whole of their case.
   • (xii) If the material before the Tribunal shows that there is a dispute between the parties as to a relevant fact and the material does not assist the Tribunal to resolve the dispute, then it will be difficult for the Tribunal to be satisfied that the complaint is so lacking in substance that it should be dismissed or struck out.

1. In these matters the section 32 applications were considered after the applicant had presented his evidence and his case. The applicant was given every opportunity at the hearing on 22 July 2011, and again on 7 December of 2011, to provide the Tribunal with all the material that he wanted the Tribunal to take into account, either by way of his own oral evidence or by way of document.

2. All the material presented by the applicant was considered. It was taken at its highest.

3. The applicant's complaints were set out in his oral evidence and in the documents before the Tribunal, in a way that was difficult to follow. The complaints were broad ranging, overlaid by information about matters that were not relevant to these complaints and in many cases, involved general statements with no detail. The lack of clarity in the way in which the complaints are made does not necessarily mean that they cannot succeed. The Tribunal should deal with complaints on their substantial merits without requiring a complainant to provide the type of detail that one would expect to find in pleadings filed in Court proceedings. The Tribunal may need to work out what a complaint is about by considering all of the material before it. That does not absolve a complainant from the need to establish their case.

4. The applicant must establish each of the following elements, in order for his complaints of unlawful discrimination to succeed:

(1) that he was treated unfavourably by the relevant respondent;

(2) in relation to the provision of goods, services or facilities; or accommodation;

(3) because of his race, age, relationship status, disability, or his political conviction.

1. The complaints are made in relation to the applicant only. The complaints are not made or pursued on a representative basis, although during the hearings on 22 July and, particularly, on 7 December, the applicant said that there are differences in the provision of services to Ngunnawal people compared to members of the Ngarigu language group in the ACT. The applicant gave evidence about his connection to the Ngarigu group, and provided information about his family history. He made a general statement that, as a result of that connection, or rather because he was not of the Ngunnawal people, he was treated unfavourably. The respondent however presented no details of what the unfavourable treatment was, or how or when or in what context, the unfavourable treatment occurred.

1. The applicant gave evidence about difficulties with the accommodation he rents from Housing ACT. At the start of the proceedings the applicant's housing difficulties included a significant disputed debt relating to an earlier tenancy, a complaint about mould and mildew in the unit he was then living in that presented a danger to his health and an allegation that Housing ACT failed to carry out repairs and to maintain his premises in a reasonable state. The applicant spoke about other problems that arose during the course of the proceedings. His gave evidence about an interruption to his quiet enjoyment of his premises because of disturbances, property damage, and threats by a neighbour; a failure by Housing ACT to re-locate him and a failure by Housing ACT to accept his application to be included in the priority category for reallocation of housing. For the purpose of this exercise, the applicant's evidence about each of the problems was accepted. I accept also that these problems could be regarded as unfavourable or as involving unfavourable treatment of the applicant. He gave no evidence however that could demonstrate any causal connection between the problems and his race, his age, his relationship status, his health or his disability.

2. The applicant made several statements about preferential treatment in the allocation of housing to people associated with other groups. He referred to asylum seekers and to newly arrived refugees, to older people, to single women and to single women with children complaining of domestic violence. He said that people in these categories were given priority and were provided with accommodation superior to that available to him and also to other services, such as white goods; while he, with his own significant disabilities and concerns, could not obtain the same level of services. He made specific reference to the former Minister with responsibility for public housing providing brand new houses for African refugees 'over non-Aboriginal and Aboriginal people..."

3. The applicant explained the scheme for the provision of housing to Australian Aboriginals that operates in New South Wales and about the absence of any similar scheme in the ACT. He told the Tribunal about experiences of some of his family members and acquaintances in relation to housing in NSW. He indicated that if he lived in NSW and was over 55 years old, he would be automatically given priority for Aboriginal housing. There is no similar specific scheme for Aboriginal housing in the ACT. He referred to this as establishing unfavourable treatment or discrimination on the basis of both age and race.

1. I accept that the applicant experienced, and continued to experience during the course of these proceedings, significant difficulties and conflicts in relation to his accommodation. However, none of the evidence that the applicant presented about the housing difficulties could be interpreted as substantiating the applicant's complaint that the difficulties were the result of unfavourable treatment that occurred because of the applicant's race or his age or his status as a single man or his disability.

4. The applicant cannot in my view, establish the elements necessary for a claim of direct discrimination in respect of any of the respondents to succeed in relation to these matters. The complaint of discrimination in relation to the provision of accommodation on the basis of political conviction is dealt with separately below.

5. During directions hearings I raised the possibility that some of the applicant's housing concerns might constitute residential tenancies disputes that could be considered by the Tribunal in proceedings under the Residential Tenancies

Act 1997. Reference was also made to whether his complaint about the decision to classify him as a person with 'high needs' rather than 'priority' for transfer was more appropriately pursued as an application for administrative review. He was encouraged to seek legal assistance and to consider pursuing those pathways as an alternative to his discrimination proceedings. Ultimately, he did not do so. He did however participate in meetings and lodge requests for reconsideration, in order to address his housing concerns himself. By the time of the hearing on 7 December, the significant debt that it was alleged the applicant owed had been waived and he had been offered, and had accepted, a transfer to other accommodation which, on the face of it, is more suited to his needs.

1. In his oral evidence, the applicant complained about unfavourable treatment on the basis of age in relation to the use of buses (older people receive greater benefits in relation to public transport) and in relation to the provision of home help and care services. He also described an incident relating to the provision of public dental services in detail. His evidence in relation to each of the other matters was general and limited. These matters were not included in the initial complaint to the Commission and may relate to other respondents. The applicant handed up a letter showing that he has made a fresh complaint to the Commission about dental services. Even if these matters were formally before the Tribunal, the evidence given could not, taken at its highest, establish that the applicant had been treated unfavourably in relation to these particular services in a way that constitutes unlawful discrimination on the basis of a personal attribute.

Gathering of Statistics and Political Conviction

The primary focus of the applicant's case is his concern about the way in which statistics about aboriginality are collected and the use that is made of such statistics. The applicant described his views on the gathering of statistics about aboriginality as his political conviction. He complains that he has been discriminated against, victimised and vilified because of that political conviction. His concerns have several components and were at the core of his complaints against each respondent but in particular, the Minister for Aboriginal and Torres Strait Islander Affairs and the Minister for Community Services.

At the hearing on 7 December 2011, the applicant said that his major complaint about the provision of accommodation was that the application form that a person has to fill out to be registered for allocation of public housing includes the question "Are you of Aboriginal or Torres Strait Islander origin?" The question is headed with the statement "These questions are optional and will be used for statistical purposes only". Similar questions are asked in relation to the provision of many services.

The applicant complains that the asking of a question such as that on the ACT Housing form is discriminatory. He queried the use of data collected from such questions.

He said that every time he applies for a service, he is asked to indicate whether he identifies as being an Aboriginal or a Torres Strait Islander. He is concerned that that information is requested without the need for people claiming Aboriginality to provide proof of their claim. He is concerned that as a result, people who are not Aboriginal or not Australian Aboriginal claim that they are Aboriginal so that they can access a range of services. This discriminates because it can lead to a lack of sufficient services for others with more legitimate claims. It can also lead to inaccurate statistics. He is critical of the reliance on self-identification and seeks the introduction of a requirement of proof of aboriginality.

He is critical of the generic reference in questions to "Aboriginal" origin. He made the point that similar questions are not asked of any other race. During a hearing he said that refugees and asylum seekers from other countries refer to themselves as aboriginal.

The generic reference also ignores the fact that Australian Aboriginals identify as members of different clans. In relation to this issue, in a letter dated 19 October 2011 the applicant said, "we ain't Aboriginal by statistic. We all come from clans and these clans do have an identity of our own so please get it right..."

The applicant explained in his evidence that he was also concerned that information collected through statistics was not used for any clear purpose, and the mere asking of the question could lead to people being treated less favourably than others.

It was clear on examination of the forms used by Housing ACT that the question complained about by the applicant is an optional question. There was no evidence that the applicant has been, or that he would be, treated differently or less favourably than other applicants for housing if he completed the question or if he left it blank. The question does not breach the provisions of section 23 of the Discrimination Act 1991.

I agree with the applicant that it is difficult to see how statistics collected as a result of the question can be regarded as reliable, but the inclusion or the asking of the optional question on a form, in the absence of any evidence of unfavourable treatment of the applicant connected to the question, is not a basis for a complaint of discrimination. Likewise, the asking of the optional question in a generic way which does not distinguish between clans and without requiring proof of aboriginality, in the absence of evidence of less favourable treatment of the applicant in the provision of accommodation or other services as a result of the asking of the question, or of his answering of the question or indeed, of his failure to answer the question; is not a basis for a complaint of discrimination. The applicant did not provide any examples of the refusal of services or the conditional provision of services, as a result of completing the question or ignoring the question or objecting to the question.

I note that the same issue was raised by the applicant in previous proceedings under the Discrimination Act 1991, and was considered by the former Discrimination Tribunal, and the Supreme Court. In each case, the complaint was dismissed because of a lack of evidence that the applicant had been treated less favourably than other applicants for accommodation in public housing[5]. It is not necessary to consider this part of the applicant's complaint any further, but it is appropriate to comment on the applicant's characterisation of his views relating to questions about aboriginality.

It was clear that the applicant holds strong views about the appropriateness of, and the way in which, statistics concerning aboriginality are gathered. It is clear that he has held those views for a very long time. He described this as being his political conviction. The respondent's representative submitted that gathering statistics was not a political conviction. There is no definition of the phrase in the Discrimination Act 1991. The word "conviction" is used in this context in its ordinary meaning - to indicate a settled or strongly held belief. Certainly, the applicant's views can be described as a conviction. The issue is whether it is a political conviction.

Similar laws in other States and in the Northern Territory refer to "political belief" and 'political opinion" as a ground of discrimination. The phrases appear to me to have the same meaning and effect. The Victorian Anti-Discrimination Tribunal considered the meaning of the phrase "political belief" in Nevil Abolish Child Support v Telstra Corporation Limited [1997] VADT 44. The tribunal said:

It has been held that, for a belief...to be political, it must bear on government - on the role, structure, feature, purpose, obligations, duties or on some other aspect of government...In our view, a belief ...will also bear on government if it concerns the relationship between government and the governed...What is political must be determined objectively, taking into account the nature of the ...belief. In most cases the perceptions of the parties will be irrelevant.

1. In that case, the Tribunal held that a belief concerning the abolition of the Child Support Agency and the Family Court, evidenced by the complainants' name, could be characterised as a political belief. The Tribunal gave examples of other beliefs that have been acknowledged as "political" - the examples relate to beliefs that have a connection to government, or to being governed by the body politic, in common.

2. The applicant's convictions are not political in character, in that they do not relate to an aspect of government or of being governed. His convictions are more about the basis on which access to economic or social services may be determined.

3. The applicant's opinions in relation to the gathering of statistics cannot be regarded, in my view, as a political conviction for the purposes of the Discrimination Act and, for this reason also, that part of his claim or his applications that alleges discrimination on the ground of his political conviction cannot succeed.

1. The applicant complained that he has been refused services because of the complaints he has made, and because of his previous court proceedings about questions relating to aboriginality and the gathering of statistics.

2. In order to establish a complaint of victimisation under section 68 of the Discrimination Act 1991, the applicant must show that he has been subjected to some detriment by one of the respondents in these matters because he has made a discrimination complaint (or done other things in relation to a discrimination complaint).

3. The applicant confirmed his belief that he has been subject to detriment and treated differently by other people because of the earlier cases, and because of his views about the gathering of statistics. When asked if he could provide some examples of when this had occurred he said:

"Every time I lodge a complaint it seems to be a matter of statistics. Whether it's about Housing Commission or the dentist or medical centre or judicial or justice, it always goes back to statistics because I've got to argue and try to educate people on who's right and who's wrong."

1. A copy of the applicant's application to Housing ACT dated 27 November 2008 was tendered (Exhibit 6 DT 10/05). The application form included an optional question about aboriginality which the applicant had completed. There is no evidence that points to any detriment to which the applicant has been subjected by any respondent as a result of his complaints about the question or as a result of any other aspect of his complaints of discrimination. There is no issue of substance in relation to this part of the applicant's complaint that should be resolved in a full hearing.

1. The applicant ticked the box on the complaint form lodged with the Commission indicating that his complaint also related to vilification however it was not a matter he raised before the Tribunal and none of his evidence supports a complaint of vilification.

1. Taking the applicant's evidence at its highest, he is either unable to establish an essential element of each complaint he makes or there is no issue of substance raised by the complaint that should be resolved in a full hearing. The complaints are doomed to fail and should be dismissed pursuant to section 32 of the ACAT Act.

2. In coming to that conclusion I have considered the application of section 21 of the Human Rights Act 2004 in the context of these proceedings. I refer to and repeat the comments made in the matter of Gindy[6] about the relevance of the Human Rights Act 2004 to the hearing of applications brought under section 32 of the ACAT Act, in relation to discrimination complaints.

3. The right to a fair trial does not mean that the Tribunal cannot or should not exercise the section 32 dismissal power in a matter in which it is satisfied that the application is doomed to fail, or in a matter which lacks substance in respect of any essential element. Whether it is necessary or merely appropriate for the Tribunal to consider the application of the Human Rights Act 2004 in these proceedings, I am satisfied that the applicant has had every opportunity to present his case, and that an order made under section 32 of the ACAT Act dismissing the complaints does not deprive him of a right to have his matter dealt with or heard appropriately.

COMMISSIONER FOR SOCIAL HOUSING IN THE ACT AND MINISTER FOR COMMUNITY SERVICES AND MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

[2] See for example Kitt v One Steel Reinforcing Pty Ltd; In re Cameron King v Higgins [2009] ACTSC

153; Council of the Law Society v The Legal Practitioner [2011] ACAT 49

[4] [1999] VCAT 628

[5] Harrison v Commissioner for Housing [2002] ACTDT 3; Harrison v Commissioner for Housing

[2003] ACTSC 22

[6] [2011] ACAT 67 at para 27 -32