HOLLMANN v THE AUSTRALIAN CAPITAL TERRITORY AS REPRESENTED BY CANBERRA HEALTH SERVICES

2. Where the ACT Human Rights Commission determines that a complaint is unlikely to be resolved successfully through conciliation (as it so resolved in this case), a complainant may request that their complaint be referred to the ACT Civil and Administrative Tribunal (ACAT). Following such a request, the complaint was referred to ACAT on 11 July 2025.

The complaint

3. The applicant lodged his complaint with the ACT Human Rights Commission in the latter half of 2024 (the applicant was not able to provide the specific date). The essence of his complaint to the Human Rights Commission centred on the following allegations. Where dates are identified, they are necessarily non-specific because the applicant’s complaint did not contain specific dates. The applicant’s specific complaints are detailed later in this decision but his main complaints were that: (a) the applicant was unable to access dental care from the respondent other than for urgent dental treatment over a period of years, from about 2020 to 2024; (b) when urgent dental treatment was sought and provided at the Belconnen Dental Clinic in February 2024 and at the City Dental Clinic in around June 2024, the respondent did not have appropriate equipment or support to provide dental care to wheelchair users; and (c) the ACT did not have specialist disability dentists and so did not provide specialist disability dental services to the applicant.

4. In his complaint to the Human Rights Commission, the applicant’s complaint was based on the protected attribute of disability and centred on physical disability. The respondent accepted that the applicant possessed this attribute.

5. In documents filed with the Tribunal and at the hearing, the applicant disclosed that he also had an acquired brain injury and the Tribunal accepted this. The respondent indicated that it was not made aware of the applicant’s acquired brain injury through the course of its dealings with him prior to the commencement of 1 his complaint. At the hearing, the applicant contended that he had disclosed his acquired brain injury to the respondent, but could not identify any specific 2 evidence of this. It was referred to in the applicant’s complaint to the Human Rights Commission, but only in the context of it affecting his balance and causing 3 him to feel dizzy when transferring from his wheelchair.

6. In his submission to the Tribunal in Questionnaire 1, the applicant claimed that he was discriminated against on the basis of several other protected attributes under the Discrimination Act 1991 (Discrimination Act) in addition to disability, namely, employment status, irrelevant criminal record, parent, family or kinship responsibilities, physical features and race. No evidence was tendered to support his claim to possess these attributes.

7. At the hearing, the Tribunal questioned the applicant as to whether he possessed 4 these protected attributes. In the case of some of them, he claimed that he had added these to his complaint to the Tribunal on the basis that he believed that he had been perceived by the respondent to possess some of them, for example, that he was perceived to be unemployed, to have a criminal record, to have family responsibilities and perceived to possess Indigenous heritage, and that these affected the behaviour of the respondent towards him. With the minor exception of a claim of the use of some allegedly racist language which was ultimately not pressed or fully tested, none of these protected attributes were pressed in any way

1 Transcript of hearing dated 12 December 2025, page 12, lines 32-35 and page 45, lines 4-8 2 Transcript of hearing dated 12 December 2025, page 53, lines 35-39 and page 54, lines 4-44 3 Applicant’s complaint to the ACT Human Rights Commission, page 1 4 Transcript of hearing dated 12 December 2025, page 22, lines 6-15; page 25, lines 32-34; page 26, lines 18-21 and page 27, lines 1-18 in the applicant’s submissions. Other than his perception, he provided no evidence to ground a discrimination claim on the basis of these protected attributes. In reply, the respondent contended that these were unfounded allegations and denied that any discrimination on the basis of these perceived attributes had taken place.

8. Courts and tribunals must reach a conclusion with a comfortable degree of satisfaction based on sufficiently robust evidence rather than inexact proof, 5 indefinite testimony or indirect reference. Given the lack of sufficiently robust evidence supporting these claims, I have not made any findings of discrimination based on these later-identified protected attributes.

9. In his claim before the Human Rights Commission, the applicant sought to be able to access routine and urgent dental health care as a wheelchair user requiring the ability to access a hoist to safely move into the treatment chair.

10. To the Tribunal, the applicant made different claims and sought that the respondent obtain the “advice of a mutually agreed Special Needs Dentist to review my Oral Health Needs and treatment or lack of thus far and to provide an urgent report and treatment plan and start treatment and to cover the cost of this treatment”. He also sought an award of $40,000, comprising $20,000 for remedial 6 dental treatments and $20,000 for pain and suffering. The applicant provided no evidence or submissions justifying how these amounts were arrived at. Given my findings on the claim, I did not find it necessary to seek or obtain submissions quantifying these amounts.

Evidence

11. The evidence before the Tribunal comprised: (a) Witness statement of Dr Jo Morris, Canberra Hospital General Manager, dated 21 November 2025 and attachments. (b) Witness statement of Mr Chris Tarbuck, Executive Group Manager, Canberra Health Services, dated 21 November 2025 and attachments.

5 De Domenico v Marshall [1999] ACTSC 1 6 Applicant’s Discrimination Questionnaire 7 (c) An undated seven-page document prepared by the applicant, headed ‘Statement and Timeline’. This was accompanied by several other documents: (i) A letter from the applicant’s mother agreeing to give evidence at the hearing. (ii) A plan of the Belconnen Community Health Centre Dental Treatment Area hand-drawn by the applicant. (iii) Copies of the respondent’s witness statements and attachments, containing handwritten annotations by the applicant. (iv) Copies of a selection of the respondent's policy documents: Adult Dental Service Information Sheet; Consumer Feedback Management Policy; Public Interest Disclosure Guidelines; Policy on Diplomatic Agents and interaction between the Mental Health Act and the Vienna Convention; Occupational Violence Procedure and Occupational Violence Policy. The purpose of tendering these policy documents was not made clear. They were not referred to by the applicant in his statement or submissions. (d) At the hearing, evidence was provided by Mr Tarbuck, by Dr Morris, and by the applicant’s mother.

12. There were substantial problems with the applicant’s evidence. In his statement he noted that his brain injuries sometimes make it difficult for him to interpret questions and to draft correspondence. Such challenges are a feature of many discrimination cases before courts and tribunals, including this tribunal. ACAT routinely makes a range of adjustments to ameliorate this. ACAT has developed a series of discrimination questionnaires, available on its website, which are designed to help the parties to set out their case effectively before a hearing. The member usually directs the parties to complete these questionnaires after the initial directions hearing. ACAT also makes directions which provide additional time for the parties to prepare and lodge their evidence and submissions and to respond to those of other parties, and to obtain further time to prepare their case when needed. It also includes adjustments at the hearing itself, such as allowing additional time for parties to process and respond to evidence, checking with the applicant about their understanding of the proceedings and the taking of regular breaks.

13. There is, nonetheless, a need for a reasonable degree of precision in pleading 7 discrimination cases. ACAT has regularly identified in its annual reviews that most parties in this jurisdiction would benefit from free expert assistance with the preparation and presentation of their case, which could reduce costs which are 8 otherwise falling to respondent parties and to the tribunal. A fundamental problem with the applicant’s case was that it lacked the necessary degree of precision required and this ultimately had implications for the success of his case. His complaint contained numerous allegations and complaints about the services of ACT Health but they lacked the requisite level of exactitude and several were shown to have no factual basis. Furthermore, unfortunately, the applicant was unable to relate his allegations to the provisions of the Discrimination Act. Until the hearing, he was under a misapprehension that he was making a claim under 9 the Disability Discrimination Act 1992 (Cth). His submissions simply highlighted his perceptions about the shortcomings in the services provided to him. He did not relate these deficiencies directly to the elements of unlawful discrimination under the Discrimination Act. This necessarily had significant consequences for the success of his claim.

Factual background — claims and responses

14. The applicant’s key claims were that: (a) After arriving in the ACT “approximately 5-6 years ago”, he visited the Belconnen Community Health Centre and was put onto a waitlist. (b) He claimed that he was not given an “emergency voucher” and that he was later told (by whom was not specified) that “they don’t like giving them out to the disabled”. (c) He claimed that staff questioned his Aboriginal heritage, used racially discriminatory terms and suggested that he try the Winnunga Aboriginal

7 Sievwright v State of Victoria [2012] FCA 118 at [166], [171], [174] and [178] and Walker v State of Victoria [2011] FCA 258 at [194] 8 See for example, ACAT, Annual Review 2022-23, page 61; ACAT, Annual Review 2021-22, page 39 9 Transcript of hearing dated 12 December 2025, page 9, line 38 and page 50, lines 30-32 Health Service. He did not use that health service because they apparently do not have equipment to treat wheelchair users. (d) He claimed that he was required to show ID including his Disability Pension card upon visiting sites of the respondent for treatment. (e) He claimed that his requirement for wheelchair accessibility caused him to wait longer than a person without such a requirement. (f) The applicant claimed in his statement that on multiple occasions he sought dental treatment and was placed on a waiting list, referring to ‘a year wasted’. After receiving treatment from an emergency visit, he was apparently told by an emergency doctor that he should be on a ‘special needs wait list’. (g) He claimed that he discovered that the ‘special needs wait list’ had no special needs dentists and that his waiting caused him harm to his teeth. (h) The applicant claimed that the CHS’ City, Canberra Hospital, Woden, Belconnen, Gungahlin and Tuggeranong sites do not have a wheelchair accessible chair and that no hoist or transfer equipment is available, or that 10 staff are unable to locate or use that equipment. (i) He made strong claims about one incident at the City Health Centre, without specifying the date or the names of those involved. He claimed that the dentist providing him with service “got furious when I asked for a hoist. Then he berated and abused me that I dare ask if he knew how to use one. He refused to allow me to book any more appointments.” (j) He requested, and was not provided with, copies of his dental records. He contended that this was part of a pattern of victimisation against him.

15. In its response and in the witness statements of Dr Morris and Mr Tarbuck, CHS responded to each of these contentions specifically and succinctly: (a) The applicant has attended dental services since 2020 through appointments with the respondent or its partnered private providers on twenty occasions, comprising one in 2020, one in 2021, eight in 2022, five in 2023 and five

10 Applicant’s Discrimination Questionnaire 1, page 8 11 in 2024. The applicant did not file any evidence contesting this. I accepted this evidence. (b) The respondent contended that the applicant’s allegations about the use of racial epithets or other slurs by the respondent’s staff lacked details of names, dates or times and were unfounded and not supported other than by 12 his bare assertions. Counsel for the respondent denied that these occurred and indicated that it was highly likely that if an incident like this had occurred, there would be severe consequences for the relevant staff 13 member. I agree, and weighing up the evidence presented, I preferred the respondent’s account. (c) With respect to the allegation that the applicant was required to show identification to receive treatment, the respondent explained that provision of 100 points of identification was part of standard CHS policy and patient identification procedures and to confirm eligibility and entitlement for service. It is also required to ensure that the correct services are provided to 14 patients and to support risk management and patient safety. (d) The General Manager of the Canberra Hospital explained the position with respect to the applicant’s contentions about a ‘special needs wait list’ and 15 associated claims. The General Manager explained that there is no ‘special needs waitlist’, but there is a special needs ‘workqueue’ to assist with recalling patients. In terms of nomenclature, she indicated that, as at November 2025, work was underway to change the name of the CHS Dental Special Needs Group to Additional Needs, in the context that the speciality Special Needs will undergo a name change Australia-wide. (e) The General Manager further explained that, as at November 2025, there were no qualified special needs dentists operating in the ACT, but that these

11 Witness statement of Dr Jo Morris dated 21 November 2025 at [4]; Respondent’s written submissions dated 21 November 2025 at [17] 12 Respondent’s written submissions dated 21 November 2025 at [14]-[15]; Transcript of hearing dated 12 December 2025, page 62, lines 11-29 13 Transcript of hearing dated 12 December 2025, page 62, lines 33-42 14 Witness statement of Dr Jo Morris dated 21 November 2025 at [20]; Transcript of hearing dated 12 December 2025, page 44, lines 11-22 15 Witness statement of Dr Jo Morris dated 21 November 2025 at [16] were rare; as at 31 December 2024, there were 29 special needs dentists 16 registered in Australia, with none registered in the ACT. (f) The respondent contended that all ACT community dental clinics have suitable access and mobile hoists which they are able to access for moving 17 dental clients in and out of wheelchairs when required. Dental staff 18 complete annual mandatory on-site hoist training. The respondent noted that it had acknowledged that in July 2024 at the Civic Health Centre, a staff member was unable to assist the applicant to transfer using the hoist as they had not undertaken the required annual hoist training which had taken place earlier that year (in February 2024) as they were not rostered to work that day. A request was subsequently made in July 2024 for training to be arranged for that staff member and this was done later in the same 19 month. (g) Furthermore, the respondent explained that it is not always necessary to move a patient using a wheelchair out of their wheelchair to access dental services in CHS sites. The headrests on the dental chairs in CHS sites are modifiable and can be manoeuvred to accommodate a patient remaining in 20 their chair for the provision of dental services. At the hearing, the applicant conceded that on the occasion that he was not able to use the hoist, he left the site in anger or frustration and it is possible that he did not wait to be offered the alternate solution of use of the modifiable headrest while 21 remaining in his wheelchair. (h) In relation to accessibility of sites, the respondent’s Executive Group Manager, Mr Chris Tarbuck, explained that upon being informed of this complaint, the respondent engaged a consultant to undertake onsite compliance inspections of its facilities. The inspection confirmed compliance with access requirements under the National Construction Code

16 Witness statement of Dr Jo Morris dated 21 November 2025 at [18] 17 Respondent’s written submissions dated 21 November 2025 at page 3 18 Witness statement of Dr Jo Morris dated 21 November 2025 at [13] 19 Witness statement of Dr Jo Morris dated 21 November 2025 at [14] 20 Transcript of hearing dated 12 December 2025, page 31, line 43 to page 32, line 32 21 Transcript of hearing dated 12 December 2025, page 15, line 19 22 and, relevantly, the Design for Access and Mobility standard. The respondent confirmed in its submissions in reply and at the hearing that all of its sites are accessible and comply, and that all community dental health clinics have suitable access and mobile hoists which are available to assist 23 patients in and out of wheelchairs for dental services. (i) Furthermore, Mr Tarbuck explained that as part of the respondent’s Disability Action and Inclusion Plan and Disability Health Strategy Action Plan, the respondent undertook a disability access audit of all ACT Health 24 Facilities in 2023. Access was found to be compliant at the Belconnen, Phillip, City and Gungahlin health centres. Access to dental chairs at the Belconnen and Gungahlin community health centres were found to be compliant. At the hearing, the applicant pointed to a drawing of the site he had prepared for his case and insisted that he was not able to access rooms at the Belconnen site when he had visited it, due to the tight space available to manoeuvre his wheelchair and enter the dental suite. The respondent displayed a video showing a person pushing a wheelchair into the relevant space with ample room to manoeuvre. The applicant conceded that he must 25 have been mistaken about his contention. (j) The respondent indicated that access to dental chairs at the Phillip and City Community Health Centres is not currently compliant, but that a project is underway to rectify these issues and is due to be completed in the first

22 Witness statement of Mr Chris Tarbuck dated 21 November 2025 at [3] and Attachment A thereto. Helpfully, photographs of all the relevant sites, identifying the site and its compliance status, were attached to his statement. 23 Respondent’s Discrimination Questionnaire 1, page 8 and Transcript of hearing dated 12 December 2025, page 30, line 13 to page 31, line 36. The respondent explained that the access to dental chairs at the Phillip and City Community Health Centres had been assessed and were not currently compliant due to door widths at those centres, but that a project was currently underway to rectify these issues and is due for completion in the first quarter of 2026: Witness statement of Mr Chris Tarbuck dated 21 November 2025 at [8]. In any case, it was clarified at the hearing that this was not relevant to the present case as the applicant’s wheelchair would still have been able to access those sites, despite the non-compliance: Transcript of hearing dated 12 December 2025, page 33, line 19 to page 34, line 45 24 Witness statement of Mr Chris Tarbuck dated 21 November 2025 at [5] 25 Transcript of hearing dated 12 December 2025, page 37, line 39 to page 38, line 43 and page 54, line 4 26 quarter of 2026. In evidence at the hearing, Mr Tarbuck clarified that although the access at these sites was not fully compliant, this did not necessarily mean that they were not accessible by a standard-sized 27 wheelchair like the applicant’s. In any case, the accessibility of these two sites was not relevant to the applicant’s case because he had not been 28 directly affected or impeded by it. Furthermore, counsel for the respondent noted that Canberra Health Services provides services across the whole Territory and if the applicant’s access at a particular site had been 29 in issue, CHS would have referred him to an accessible site. (k) A mobile hoist is available at all four community health centres (Belconnen, City, Phillip and Gungahlin) with dental chairs also providing the ability for patients to be treated in their wheelchair. Staff are required to be trained 30 to operate the mobile hoists, and their training is regularly reviewed. (l) The respondent denied the applicant’s assertion that a dentist at the City Health Centre “got furious when I asked for a hoist”. With respect to the applicant, on the basis of all of the evidence before me, I do not think it likely that a dentist displayed aggression as described and do not find that it occurred. (m) In relation to access to his personal health records, an email from the respondent to the applicant dated 23 June 2025 was submitted in evidence as an attachment to Dr Morris’ witness statement. That email explained the ways in which those records could be provided to the applicant and asked the applicant to indicate how he would like those provided to him. The applicant did not respond to the email or otherwise make contact to advise of how he would like to receive those records.

26 Witness statement of Mr Chris Tarbuck dated 21 November 2025 at [8]; Transcript of hearing dated 12 December 2025, page 34, lines 18-28 27 Transcript of hearing dated 12 December 2025, page 34, lines 34-39 28 Transcript of hearing dated 12 December 2025, page 40, lines 26-47 and page 56, lines 7-18 29 Transcript of hearing dated 12 December 2025, page 34, lines and page 56, line 39 to page 57, line 2 30 Witness statement of Mr Chris Tarbuck dated 21 November 2025 at [9] (n) The respondent explained that in August 2022 the applicant was provided 31 a warning letter about his behaviour. More recently, on 25 March 2025, he was provided with a further letter stating that, due to the applicant’s behaviour, the respondent’s dental services were being withdrawn, 32 including all community dental services and the Deakin Dental Practice. This stemmed from the taking out of a Workplace Protection Order by the respondent against the applicant due to his behaviour towards its staff 33 following multiple reports of occupational violence. The letter stated that the applicant can still seek emergency or urgent care at the respondent’s 34 emergency departments or walk-in centres.

The legislative framework

16. In the ACT, discrimination matters of this kind are regulated by ACT laws – principally, the Discrimination Act and the Human Rights Commission Act 2005 (HRC Act), supplemented by the common law. Section 7 of the Discrimination Act provides that the Act applies to discrimination on the ground of a number of 35 “protected attributes”, including, relevantly, disability.

17. Section 8 of the Discrimination Act provides that discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.

18. ‘Direct discrimination’ occurs if a person “treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected 36 attributes.” That is, for direct discrimination, a complainant must show that the

31 Witness statement of Dr Jo Morris dated 21 November 2025 at [5] and Attachment A thereto 32 Witness statement of Dr Jo Morris dated 21 November 2025 at [6] and Attachment B thereto 33 Transcript of hearing dated 12 December 2025, page 3, lines 36-44. At the hearing, counsel for the respondent indicated that many of the respondent’s staff had made complaints about the applicant’s conduct towards them. In its submissions, the respondent indicated that eight occupational violence incidents had been reported by CHS Dental staff since 2021: Respondent written submissions dated 21 November 2025 at [21]. The Deakin Dental Practice withdrew from participation in the CHS Dental Referral Scheme (for all patients) in 2025 citing the risk of occupational violence stemming from the applicant’s behaviour: Witness statement of Dr Jo Morris dated 21 November 2025 at [11] 34 Witness statement of Dr Jo Morris dated 21 November 2025 at [8] and Attachment B thereto 35 Discrimination Act s 7(1)(e). Disability is defined in section 5AA of the Act to mean, inter alia, “a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour”. 36 Discrimination Act s 8(2) protected attribute was the true basis or real reason for the unfavourable treatment.

19. ‘Indirect discrimination’ occurs if a person “imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging 37 the other person because the other person has 1 or more protected attributes.” However, subsection 8(4) of the Discrimination Act provides that “a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.” Under subsection 8(5): In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include— (a) the nature and extent of any disadvantage that results from imposing the condition or requirement; and (b) the feasibility of overcoming or mitigating the disadvantage; and (c) whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposes to impose, the condition or requirement.

20. Part 3 of the Discrimination Act sets out the forms of behaviour which constitute unlawful discrimination. Section 20 of the Act — “Goods, services and facilities” — provides that: It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person— (a) by refusing to provide those goods or services or make those facilities available to the other person; or (b) in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or (c) in the way in which the provider provides those goods or services or makes those facilities available to the other person.

21. The definition of “services” in the Dictionary at the end of the Act makes clear that it includes services provided by a government or government authority.

22. Section 53CA of the HRC Act specifies the onus in establishing a discrimination complaint before ACAT, and subsection 53CA(2) makes clear that the applicant bears that onus:

37 Discrimination Act s 8(3) 53CA Onus of establishing complaint about discrimination etc (1) This section applies to a discrimination complaint, referred to the ACAT under this division, about discrimination by a person against another person by— (a) treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person (direct discrimination); or (b) imposing, or proposing to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because of a protected attribute of the other person (other than a condition or requirement that is reasonable in the circumstances) (indirect discrimination). (2) It is a rebuttable presumption that discrimination has occurred if the complainant— (a) establishes that— (i) for a complaint about direct discrimination—the treatment or proposed treatment is unfavourable; and (ii) for a complaint about indirect discrimination—the condition or requirement has, or is likely to have, an effect of disadvantaging the other person; and (b) presents evidence that would enable the ACAT to decide, in the absence of any other explanation— (i) for a complaint about direct discrimination—that the treatment or proposed treatment is because of a protected attribute of the other person; or (ii) for a complaint about indirect discrimination—that the effect of disadvantaging the other person is because of a protected attribute of the other person. (3) The presumption under subsection (2) is rebutted if the person complained about establishes that— (a) for a complaint about direct discrimination—the treatment is not because of a protected attribute of the other person; or (b) for a complaint about indirect discrimination—the effect of disadvantaging a person is not because of a protected attribute of the other person. Note The onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see s 70). (4) In this section: protected attribute means a protected attribute under the Discrimination Act 1991. Did discrimination occur within the meaning of the Discrimination Act?

23. As has been noted elsewhere, the statutory framework for discrimination 38 complaints is complex.

24. This Tribunal has previously noted that in most discrimination cases before it, the complainant is unrepresented, while institutional respondents are represented by 39 solicitors and counsel. This was also the case in this matter. The applicant was self-represented and untrained in the law, while the respondent was represented by solicitors and counsel. The applicant’s difficulty in articulating his case both in his written and oral submissions, in the terms required by the legislation, was apparent and understandable.

25. Nonetheless, the onus is on the applicant to establish his claims and this must be 40 done with a degree of precision. The applicant did not do this. The strength of the evidence necessary to meet the standard will vary according to the nature of what is sought to be proved. In this case, some of the applicant’s allegations were serious and this must be borne in mind when assessing the strength of the 41 evidence adduced in support of his claims.

26. To establish that direct discrimination occurred under the Act, in this matter, the applicant would need to show that because of the applicant’s disability, the respondent: (a) refused to provide services or make facilities available to the applicant (subsection 20(a)); (b) discriminated against the applicant in the terms or conditions on which the respondent provided the services to the applicant (subsection 20(b)); or

38 ACT Law Reform Advisory Council, Review of the Discrimination Act 1991 (ACT: Final Report, 2015), pages 8-10 39 Elbashir v Canberra Institute of Technology (Discrimination) [2024] ACAT 10 at [29]; Complainant 512022 v The Australian Capital Territory as represented by Canberra Health Services [2023] ACAT 66 at [35], citing, Pikula-Carroll v ACT Corrective Services [2023] ACAT 33 at [37] 40 Complainant 201707 v The Australian Capital Territory [2019] ACAT 1 at [80], citing Waters and Others v Public Transport Corporation (1992) 173 CLR 349 at 404–405 41 Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2 per Dixon J; Evidence Act 1995 (Cth) s 140 (c) discriminated against the applicant in the way in which it provided the services or made its facilities available to the applicant (subsection 20(c)).

27. To establish indirect discrimination, the applicant would need to show that the respondent imposed (or proposed to impose) a condition or requirement on the applicant in one of the above circumstances that had the effect of disadvantaging them because of one or more of their protected attributes, where it was not reasonable to impose that condition in the circumstances.

28. In Waters v Public Transport Corporation [1991] HCA 49 at [21], Dawson and Toohey JJ explained the distinction between direct and indirect discrimination in the following terms: A distinction is often drawn between two forms of discrimination, namely "direct" or "disparate treatment" discrimination and "indirect" or "adverse impact" discrimination. Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such "equal" treatment is that the former is in fact treated less favourably than the latter. The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon black workers as opposed to white workers: Griggs v Duke Power Co. [1971] USSC 46; (1971) 401 US 424. Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.

29. It is sometimes difficult for applicants to identify whether their complaint relates to direct or indirect discrimination. In this case, the applicant submitted that his 42 claim related both to direct and indirect discrimination. In its submissions, the respondent noted that the substance of the complaint referred to the Tribunal would qualify as coming within indirect discrimination, were the complaint able 43 to be substantiated by evidence. At the hearing, the respondent contended that,

42 Applicant’s Discrimination Questionnaire 1 43 Respondent written submissions dated 21 November 2025 at [15] were there evidence of the applicant’s numerous claims, it would hypothetically be possible to argue some as constituting direct discrimination and others as 44 indirect discrimination.

30. In the event, it was not necessary to determine this. As I have noted earlier in these reasons, the majority of the allegations foundered because they were not supported by rationally probative evidence. Some were found to be incorrect, and others were supported only by the applicant’s account which was uncorroborated by any documentary or contemporaneous evidence. These were rebutted by the evidence of the respondent, specifically site photographs, expert reports and sworn evidence containing significantly more specific detail than that provided by the applicant, and detailed evidence of strategies, training programs and other practices. Weighing up all of the evidence provided, the Tribunal prefers the evidence of the respondent.

31. Some of the respondent’s actions were simply the implementation of its policies and procedures, grounded in clinical safety, security or governance considerations and could not be argued to comprise discrimination towards the applicant. For example, the respondent explained that the requirement for patients to provide 100 points of ID to receive CHS Dental services, is in place for identification and eligibility purposes, and to support risk management and patient safety. I am unable to see how this constitutes discrimination under the Discrimination Act in the instant circumstances.

32. Were it necessary to decide whether any of the respondent’s acts or omissions constituted discrimination, the Tribunal finds that none of its relevant acts or omissions were motivated by discrimination, either in whole or in part. Specifically, in the case of the instance in July 2024 where a staff member indicated that she was not able to move the applicant from his wheelchair into the hoist, the Tribunal accepts the respondent’s evidence that this was an isolated — albeit regrettable — instance, and not a systemic failure. It was swiftly rectified with the appropriate training. The refusal to move the applicant was not motivated (“because” of, in the language of section 8) by discrimination on the ground of

44 Transcript of hearing dated 12 December 2025, page 57, lines 15-25 his disability, but more likely due to concern not to inadvertently cause harm to 45 the applicant, for example through misuse of the hoist. If I am wrong and it is considered that this event could give rise to discrimination, I find that the respondent’s refusal to use the hoist was in any case reasonable in the circumstances (within the meaning of section 8(4) of the Act), particularly given the stated risk of further harm to the applicant through a failed use of the hoist, and given that the alternate solution of the modifiable headrest existed, through which the applicant could remain in his wheelchair and not require the use of the hoist.

Was there victimisation within the meaning of the Discrimination Act?

33. Several of the applicant’s allegations seemed to be part of a complaint that the respondent victimised him. These claims were specifically denied by the respondent. His arguments included, for example, that the respondent would not provide him with copies of his medical and other records. However, the claim was not supported by rationally probative evidence. The respondent filed evidence that it had communicated with the applicant about his request, offering 46 on multiple occasions to provide him with the requested information.

34. The applicant’s submissions did not address the specific provisions of the Discrimination Act concerning victimisation. Claims of victimisation under the Discrimination Act are taken very seriously and accordingly, such claims must be clearly articulated and made out, supported by rationally probative evidence. To the extent that any formal claim of victimisation is made by this complaint, I do not find it to be made out.

35. At the hearing, the respondent noted that where a disability is not obvious or overt, such as the applicant’s acquired brain injury, it is incumbent on the holder of that disability to make that clear in their dealings with other parties as relevant. The respondent indicated that in light of the applicant’s disclosure of his acquired brain injury, and his acknowledgement that that injury may have affected some of his interactions with CHS, the respondent indicated that the door was not

45 Transcript of hearing dated 12 December 2025, page 12, line 44 to page 13, line 12 46 For example, witness statement of Dr Jo Morris dated 21 November 2025 at [21] closed to discussions between the parties about a way forward for provision of dental services in the future and potential re-consideration of the Workplace 47 Protection Order. The Tribunal encouraged the applicant to consider taking up 48 that offer.

Conclusion

36. For a discrimination complaint to be substantiated, it must be set out clearly, proved to a proper standard, and based on proper evidentiary material. The 49 50 Tribunal must “feel an actual persuasion” or a “comfortable satisfaction” that the events complained of took place, and of the unlawful discrimination. The applicant presented as a forthright witness, who gave evidence to the best of his recollection and ability. However, without intending any disrespect, his statement, timeline of events and submissions lacked specific dates and during the hearing the applicant was unable to identify specific dates of when matters occurred and specific details of what actually occurred. It is possible that his memory had been affected by the passage of time since the events he was seeking to recollect, or by other factors. By contrast, the witnesses for the respondent all provided clear and specific evidence and the respondent’s contentions were supported by precise documentary evidence, such as photos, which is clearly more precise than, and preferable to, drawings. For these reasons, the Tribunal found the evidence of the respondent to be more persuasive.

37. For the reasons outlined above, the applicant’s case did not meet the required standard of proof, and the applicant in this case has not made out a successful claim of discrimination under the Discrimination Act. While a person with a disability may feel hurt or perceive something as adverse towards them, that does not necessarily make it discriminatory conduct within the meaning of the Discrimination Act. The discrimination complaint in this case did not meet the standards required under the Act or the minimum evidentiary requirements for a presumption to arise that direct or indirect discrimination occurred.

47 Transcript of hearing dated 12 December 2025, page 12, lines 12-26; page 45, lines 20-26 and page 58, lines 21-31 48 Transcript of hearing dated 12 December 2025, page 65, lines 31-37 49 Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 per Dixon J 50 Briginshaw v Briginshaw (1938) 60 CLR 336 at 350 per Rich J

38. Further, on the evidence available, I have not found any grounds for concluding that the respondent’s acts or omissions are reasonably explicable by discrimination as the motivation or cause. The application is dismissed.

……………………………… Senior Member J Kalokerinos

Date of hearing: 12 December 2025 Applicant: In person Counsel for the Respondent: Mr Whitfield Solicitors for the Respondent: ACT Government Solicitor