Department of Police, Fire and Emergency Management (Respondent)

Pursuant to s 72(1) of the Anti-Discrimination Act 1998, the complaint lapses.

Anti-Discrimination Act 1998; ss 65, 64, 72;

Tasmanian Civil and Administrative Tribunal Act 2020; ss 74, 75.

State of Tasmania v Anti-Discrimination Tribunal and Ors [2009] TASSC 48;

Elliot v Hobart City Council [2024] TASCAT 203;

Khalafallah v Tasmanian Civil and Administrative Tribunal [2023] TASSC 8;

Assal v Department of Health, Housing Community Services [1992] EOC 92;

Nagasinghe v Worthington [1994] FCA 1387 - [1994] FCA 175.

The complainant's name has been de-identified for publication.

1. The complainant has applied to the Tasmanian Civil and Administrative Tribunal (the Tribunal) to review a determination of the Anti-Discrimination Commissioner (the ADC) rejecting his complaint against the respondents.
2. The application is made pursuant to s 65(2) and (3) of the Anti-Discrimination Act 1998 (the ADA).
3. As the application for the review of the rejection of the complaint was dated 26 February 2025 the Tribunal has jurisdiction to deal with this application as it was in writing and was received within 28 days of the complainant receiving the ADC's decision dated 18 February 2025 to reject his complaint.

1. On 10 January 2025 the ADC received a complaint from the complainant in which he alleged that the respondents had directly discriminated against him on the basis of disability, irrelevant criminal record and irrelevant medical record. He also alleged that they had committed offensive, humiliating, intimidating, insulting or ridiculing conduct towards him on the basis of his disability. He further alleged that there had been incitement of hatred on the basis of disability and also victimisation.
2. The allegations against the State of Tasmania - Department of Health North West Regional Hospital (NWRH) related to several occasions when the complaint was not admitted or allowed access to the NWRH, and on an occasion where he was not admitted, but was later involuntarily detained at the hospital. He further alleged that he disagreed with medication he was and was not prescribed and that he did not consent to some medical treatment being administered to him.
3. The allegations the complainant made against Tasmania Police were that he had been arrested and charged on several occasions, including being charged with failure to comply with the direction of a police officer to leave and not return to the NWRH on 8 November 2024. This resulted in him being charged with 'trespass'. On 9 November 2024 he was charged with remaining at the same hospital without consent, and with an additional charge of 'possess thing used for administration of a controlled drug (smoking device)'.
4. On 13 April 2024 the complainant was arrested and charged with an alleged breach of bail conditions. He alleged that the police officers who were involved had not activated their body worn cameras, laughed and joked about his human rights and disability, including that he does not have a schizoaffective disorder and was not suicidal.
5. After a consideration of the complaint by an Assessment Decision and Reasons for Decision dated 18 February 2025, the ADC rejected the complaint pursuant to ss 64(1)(a), (b), and (g) of the ADA. The ADC found that the complaints were misconceived or lacking in substance, did not relate to discrimination or prohibited conduct, and some of the complainant's allegations could be more effectively dealt with by a State authority.

1. Section 72 of the ADA indicates the consequences upon reviewing the rejection (or dismissal) of a complaint.
2. Specifically with regard to the review of rejection, if I am satisfied that the ADC made the correct decision in rejecting the complaint, the complaint will lapse. Section 72 also provides that if on reviewing the rejection of the complaint I am not satisfied that the ADC made the correct decision, I am to refer the complaint back to the ADC for investigation.
3. It is clear that my powers to review the rejection of this complaint are also governed by the Tribunal's review jurisdiction under the Tasmanian Civil and Administrative Tribunal Act 2020 (the TASCAT Act), refer to s 74(1) and s 75 of the TASCAT Act.
4. The law relating to the Tribunal's role in determining the review of a rejection and dismissal of a complaint pursuant to s 72 of the ADA, has been authoritatively stated by the Supreme Court to be a comprehensive merits review. This review process is not confined to the material which was before the ADC - see Porter J in the State of Tasmania v Anti-Discrimination Tribunal and ors [2009] TASSC 48 at [27]- [29].
5. Of particular relevance at [47] of this decision, Porter J stated:

Thus, when s72 speaks of the Tribunal being satisfied or not that the Commissioner "made a correct decision", it means that the question is whether the decision was the correct one on the material before the Tribunal. The extent of such material is to be governed by relevance. That is the interpretation which accords with the remedial nature of the legislation and which better promotes its objects.

1. In accordance with Tribunal processes, an initial directions conference was listed in the Tribunal before a Deputy Registrar on 8 April 2025.
2. By 8 April 2025 the Tribunal had been advised that Tasmania Police did not wish to appear or have any other involvement in the review of rejection process subsequent to them being advised of their opportunity to do so on 25 March 2025.
3. On 17 April 2025 the Secretary of the Department of Health indicated that the Department of Health (NWRH) did not wish to appear or have any other involvement in the review of the rejection process.
4. At this directions conference the complainant indicated that he would prefer to put his submissions in writing and that he would do so within a fortnight of 8 April 2025.
5. On Monday 14 April 2025 at 9:03am the Tribunal received the complainant's written submissions. In response to a request from the Tribunal on 14 April 2025 as to whether or not the complaint wished to file anything further or provide any other submissions in relation to his application, he simply responded with "no, other than body worn evidence that was not reviewed".
6. Subsequent to this contact from the complainant, the matter was referred to me for determination on the material before the Tribunal by that time.

1. As stated, the ADC clearly rejected the complainant's complaint against both respondents on three bases pursuant to s 64(1) of the ADA.
2. The first was on the basis of s 64(1)(a) and related to the complaints being misconceived or lacking in substance. These words were considered by Brett J in Khalafallah v Tasmanian Civil and Administrative Tribunal [2023] TASSC 8. In this decision, his Honour referred to the comments by Sir Ronald Wilson in his role as President of the Human Rights and Equal Opportunity Commission in Assal v Department of Health, Housing Community Services [1992] EOC 92 where at [409] he stated:

The claim which presents no more than a remote possibility of merit or which does no more than hint at a just claim would ordinarily, I think, be found to be lacking in substance.

3. Brett J also referred to the decision of von Doussa J in the Federal Court decision of Nagasinghe v Worthington [1994] FCA 1387 - [1994] FCA 175. In this decision, von Doussa J agreed with Sir Ronald Wilson's formulations and restated it at [11] as "...whether there was material before the Inquiry Commissioner which indicated a real possibility of there being some connection between..." the allegation and the relevant act.
4. In Khalafallah v Tasmanian Civil and Administrative Tribunal (supra), Brett J also referenced the decision of Porter J in State of Tasmania v Anti-Discrimination Tribunal and Ors (supra), in which Porter J stated at [13]:

The exercise on which the Commissioner is embarked is that of a screening process, so that it is only complaints which appear to have such substance as to require them to be dealt with by conciliation, or if that is inappropriate for any reason set out in the ADA, s 78(1), to be the subject of an inquiry by the Tribunal. A complaint may be rejected at the initial stage for any reason set out in s 64(1). Of the matters set out in s 64(1)(a) three relate "to the insufficiency or to the absence of merit of the factual basis" whilst "misconceived" means "founded upon a wrong idea as to the facts." Langley v Niland (1981) 2 NSWLR 104 at [107].

5. The second basis of the rejection of the complainant's complaint was pursuant to s 65(1)(b) of the ADA which indicated that his complaint did not relate to discrimination or prohibited conduct.
6. As was stated by Deputy President Grueber in Elliot v Hobart City Council [2024] TASCAT 203 at [26]:

The phrase "does not relate to discrimination", s 64(1)(b) requires consideration of whether the matters complained of might amount to discrimination under the Act. The focus of s 64(1)(b) is on the complainant's case. It involves consideration of whether the complaint displays an insufficient connection to discrimination rather than a determination of whether discrimination has or has not occurred. It cannot mean a final determination that the conduct complained of amounts in fact and in law to discrimination. That is a matter for the Tribunal on inquiry. The functions of the Commissioner are listed in s 6 of the Act. They include to investigate and seek to resolve complaints, but not to conduct an inquiry.

7. The final basis of the ADC's rejection of the complaint as against the Department of Health pursuant to s 64(1)(g) of the ADA was that in the ADC's opinion, his allegations could be more effectively or conveniently dealt with by a State authority or Commonwealth statutory authority, in this case being the Health Complaints Commission (Tas).
8. With regard to all of the allegations against the Department of Health, I agree with the ADC's assessment decision in which it was indicated that whether the complainant was or was not admitted to the NWRH and was or was not provided with prescribed medication, all appear to be decisions made relating to medical matters and opinions reached about his need to be admitted to hospital or the need for him to have medications prescribed to him.
9. These types of decisions are made for all people presenting to hospital. It cannot therefore be said that this is less favourable treatment to the complainant because of his attributes. Additionally, and as correctly stated by the ADC, in the ADC's opinion the Health Complaints Commission can more efficiently and conveniently deal with these issues whether relating to medical assessments, and the prescription or not of medication etc.
10. With regard to Tasmania Police, I also agree with the ADC's comments that Tasmania Police's dealing with the complainant did not occur due to his attribute of disability nor his criminal nor medical record, but because of his behaviours in refusing to leave the NWRH and breaching his bail conditions.
11. Similarly, whether or not the police failed to activate their body worn cameras is not a discrimination issue in itself. There was no evidence that the actions taken by Tasmania Police had anything to do with the complainant's disability and/or medical/criminal records.
12. With regard to the allegation of police laughing or joking at him about not having schizophrenia nor being suicidal, I agree with the ADC that there was insufficient detail as to when this occurred, if it did occur.
13. Having considered all of the material before me, I find that the ADC made the correct decision to reject the complainant's complaints against both the Department of Health (NWRH) and Tasmania Police.

1. In accordance with s 72(1) of the ADA, I find that the ADC made the correct decision in rejecting the complaint and that the complaint lapses.

1. The complainant's complaint lapses pursuant to s 72(1) of the Anti-Discrimination Act 1998.