The respondent, a member of Autism Mixer's Committee, told the Tribunal that the applicant was not expelled because of his disability but because of his conduct which had caused discomfort to another member. The respondent further submitted that the applicant was removed as a member in accordance with the Committee's By-Laws which established a "three strike rule" for breach of the rules. The applicant argued that he was improperly expelled according to the By-Laws as he did not accept that the second warning was justified, and because he had been given no opportunity to provide his response to the complaint made against him.

This decision considers who the correct respondents are, and which provisions of the Equal Opportunity Act 1984 (EO Act) are relevant to the applicant's complaint.

• The applicant's complaint of unlawful discrimination on the ground of his disability is not established;
• Neither Mr Healy nor Autism Mixer are appropriate respondents to a complaint made in respect of s 72 of the EO Act.

Equal opportunity - Complaint alleging that a person acted in contravention of the Act - Unlawful discrimination on ground of disability - Discrimination against a member of an association

Equal Opportunity Act 1984 ss 5, 66, 72, 76, 95A, 95B

Loxton v Fischer [2022] SACAT 117

Made under the Equal Opportunity Act 1984 s 96(2)

1. This is the determination of a complaint referred to the Tribunal by the Commissioner for Equal Opportunity (the Commissioner), on 21 December 2022. The Commissioner had received a complaint on 5 October 2022 from Heath Loxton alleging unlawful discrimination by an association on the ground of his disability, contrary to ss 66 and 72 of the Equal Opportunity Act 1984 (the EO Act).
2. The Commissioner declined the complaint as misconceived and lacking in substance pursuant to s 95A(1)(a) of the EO Act, but on Mr Loxton's request, referred the complaint to the Tribunal pursuant to s 95B(1)(c) of the EO Act.
3. A directions hearing was conducted by the Tribunal on 1 February 2023 and the respondents were determined to be Mr Healy and Autism Mixer.
4. The Commissioner in her referral of the complaint to the Tribunal states that Mr Loxton complained that he was subject to discrimination on the ground of a disability by Mr Healy, who Mr Loxton asserts represents Autism Mixer, a social club for persons on the autism spectrum. Mr Loxton complained that after attending an Autism Mixer event on 15 December 2021, Mr Healy told him he was no longer welcome to attend future club events. Mr Loxton complained that this ban represented discrimination on the ground of his disability of Autism, as he had apparently failed to pick up on a social cue at the event as a result of that disability.
5. The Commissioner informed the Tribunal that Mr Healy had responded denying there was any unlawful discrimination against Mr Loxton on the ground of his disability, but that the Autism Mixer Committee had decided to remove him from the group because of his failure to comply with the Autism Mixer By-Laws, as he had been warned three times concerning his behaviour which was inconsistent with those By-Laws.
6. The Commissioner rejected Mr Loxton's complaint, having formed the view that Mr Loxton was banned from the group because of his behaviour, rather than his diagnosis of Autism.

1. At this hearing neither Mr Loxton nor Mr Healy was legally represented, and it appeared they had not obtained any legal advice prior to the hearing. A number of legal issues became apparent in the course of the hearing but were not able to be effectively addressed at the hearing in these circumstances.
2. Apart from the substance of Mr Loxton's complaint, it was apparent there was an issue as to the identification of the respondent, and, depending on that determination, the relevant section of the EO Act that might be relevant to Mr Loxton's complaint. These considerations may impact on the jurisdiction of the Tribunal to address Mr Loxton's complaint.
3. I raised some aspects of these concerns at the hearing, and have considered these matters since the hearing and in the absence of any further submission from either Mr Loxton or Mr Healy on these matters. Given these are relatively complex matters, and in the absence of legal advice or representation, I considered it appropriate to proceed with my decision on these matters without calling the matter on again for further submissions from Mr Loxton or Mr Healy.
4. I shall consider the evidence relating to the substance of Mr Loxton's complaint before addressing these issues.
5. At the hearing, Mr Loxton gave evidence in support of his complaint. Mr Healy also provided some evidence, as did Mr Bull, Ms O'Brien and Mr Tisato, all members of the Committee of Autism Mixer. It appeared at the commencement of the hearing that Mr Bull, Ms O'Brien and Mr Tisato would be giving evidence in support of Mr Healy's position, and accordingly a witness order was made in relation to each of them, and they gave their evidence independently. No witness statements were provided prior to the hearing.

1. Mr Loxton told the Tribunal he had made his complaint against Mr Healy because he understood Mr Healy was an employee of Autism SA, and he had managed the membership applications for Autism Mixer, the association he had joined and against which he also made his complaint.
2. Mr Loxton said he had joined Autism Mixer in about 2020 and had attended a number of its events. These events included the Christmas party on 15 December 2021 in the Botanic Gardens. Mr Loxton said that at the Christmas party he had interacted with a number of other members and all seemed to go well.
3. However, about a week later he had received correspondence from Mr Healy saying he was no longer welcome to Autism Mixer events and had been expelled as a member, as he had upset another member at the Christmas party. The letter had stated this was his "third warning" and so he was expelled pursuant to the Autism Mixer By-Laws.
4. Mr Loxton said he had then asked for more details about the complaint. He said he had not been aware of any problems at the party, and he had no opportunity to appeal or give his side of the story.
5. Mr Loxton told the Tribunal he had been diagnosed with Asperger Syndrome, and had difficulty in "reading" social cues. He said he understood the allegation was that he had upset another Autism Mixer member (Ms E) at the picnic. He said that he had only had a brief interaction with Ms E, exchanging small talk for perhaps two periods of 10 minutes. He said he had not been aware of any problem with this interaction, and Ms E had not told him there was any difficulty or to leave her alone.
6. Mr Loxton said he was told it was because of the complaint Ms E had made to Mr Healy that he was expelled. He said he was not asked for any explanation or response, and he had been unaware of any problem and believed he had not behaved in an offensive or threatening manner to justify any complaint.
7. Mr Loxton said he knew Ms Ehad blocked him on Facebook, but he had not pursued her and had not tried to find her mobile phone number. He said he did not recall asking her to friend him on Facebook.
8. Mr Loxton said this was the core of his complaint. He said that because he was not aware anything untoward had occurred in his interactions with Ms E, it must have been that he had been unaware of non-verbal cues from Ms E indicating she was uncomfortable with him. Mr Loxton said that it was well known that it was a feature of Asperger Syndrome that those with the Syndrome were often unable to pick up on non-verbal cues. He submitted that he was removed as a member of Autism Mixer because of his disability.
9. Mr Loxton told the Tribunal he was not seeking monetary compensation from Mr Healy or Autism Mixer, but rather wanted to be readmitted as a member. He said he had enjoyed and valued his membership and his interaction with other members, and he had felt humiliated and frustrated in his removal from membership.
10. Mr Loxton also said his expulsion had not been consistent with Autism Mixer's By-Laws, as he had not had three warnings.
11. Mr Loxton agreed a "first warning" had properly been issued against him by Becky O'Brien, the Autism Mixer Facebook administrator and member of the Committee, on 12 July 2020. He also said he did not regard this "warning" as discrimination on the ground of disability. This warning related to his ongoing insistence on using the Autism Mixer Facebook page to promote a separate Autism social group of which he was a convener. Mr Loxton agreed he "got a bit carried away", and "deserved" the warning.
12. However, a "second warning" had been issued by Ms O'Brien on 13 September 2020. Mr Loxton said this had not been warranted. He said he had sent Ms O'Brien a private email asking if she could post an invitation for him on the Autism Mixer site, and she responded by issuing a second warning. Mr Loxton said this was unwarranted, as he had not posted anything.
13. Mr Loxton told the Tribunal that the Autism Mixer Committee members had access to various accounts relating to his conduct in other environments and circumstances which presented him negatively. He said this material was all gossip, and he had never been asked for his response or explanation of these matters, and he believed others were perpetuating rumours about him, and it was these rumours to which the Committee members were responding when they voted to expel him as a member of Autism Mixer. He said this was clear from the Committee's meeting minutes.
14. Mr Loxton said the crux of the issue was that he had been discriminated against as a result of his disability as he had been expelled because of his difficulty in interacting socially with others. However, Mr Loxton said he could manage social interaction, but he found it difficult to pick up on non-verbal cues. Someone was upset at his failure to do so, and this had led to his expulsion.
15. Mr Loxton said that he had been diagnosed as on the autism spectrum, and this condition was the likely cause of him being unaware he had upset someone. He said he did try to learn to recognise the needs of other people, and he had not been behaving maliciously and was sorry if he had caused another member discomfort. He said he did respect boundaries now, and accepted all the rules of Autism Mixer.
16. Mr Loxton said he believed he should have been asked for his side of the story, and if this had happened the Committee would have recognised that Ms E's concerns resulted from his failure to recognise her discomfort, not from his actual conduct.
17. In addition, Mr Loxton said that he had not breached three rules or received three warnings, as the second warning should not be taken into account, as he had not posted anything in breach of the first warning Ms O'Brien had given him and which he accepted: rather, he had simply sought permission to post the notice about his function.

1. Mr Healy told the Tribunal he was a member of Autism Mixer's Committee, and he had been involved in the decision to expel Mr Loxton. He said Mr Loxton had broken the rules of Autism Mixer on three occasions, and so was expelled by the Committee.
2. Mr Healy provided the Tribunal with some written submissions and a number of text message communications between himself and Mr Loxton; Ms O'Brien and Mr Loxton; Mr Tisato and Mr Loxton, and Mr Bull and Mr Loxton. He also provided the text message communication from Ms E setting out her complaint and concerns relating to Mr Loxton.
3. Mr Healy states that Mr Loxton became a member of Autism Mixer in June 2020, and "he started being pushy with wanting to advertise his own Autism Adults social group which he had set up". Mr Healy said that it was Mr Loxton's insistence on advertising his group's activities on the Autism Mixer Facebook page which led to the first and second "warnings", along with his "pushy" attitude, and failure to respect decisions and boundaries, or to accept "no" for an answer. Autism Mixer's rules required that only Autism Mixer activities could be advertised on its Facebook page.
4. Further, he told the Tribunal that it was a fundamental rule of Autism Mixer that if a member felt unsafe they should report this to a Committee member, and action would be taken to protect that member. Ms E, an Autism Mixer member, had reported to him that she felt unsafe and uncomfortable with Mr Loxton at the Christmas party picnic, and had also been harassed by him after the picnic, and so he called a Committee meeting to discuss this concern. Mr Healy said the Committee members all agreed that Ms E should be supported as a vulnerable member, and a decision was made to expel Mr Loxton as a member because of his conduct toward Ms E, taking into account his previous conduct and rule breaches.
5. Ms E's communication with Mr Healy concerning her complaint was provided to the Tribunal. She states as follows:

... I don't feel comfortable hanging out with Heath. He's had issues with some of my friends and he's banned from GAMES club for reasons. I thought it might be ok if he's behaving fine but he keeps seeking me out, asking questions and looking me up on facebook. It was starting to scare me. > > ... when he asked me if I wanted to friend him on facebook and I said "nah I'm good" or something like that, he tried to contact me later anyway. > > If he doesn't do anything bad though there's no reason to do anything. I'm sorry for causing drama, I just get really anxious over things.

6. Mr Healy told the Tribunal Mr Loxton was not expelled because of his disability, but because of his conduct, which had caused discomfort to another member. He said all members of Autism Mixer are autistic.
7. Mr Healy agreed the Committee did not provide Mr Loxton with any opportunity to explain his conduct at the Christmas picnic, both because it accepted Ms E's complaint and considered she needed protection as a vulnerable member, and because nothing in the By-Laws required such an approach. He said that because this was the third time he had been in breach of the rules, Mr Loxton was expelled.
8. Mr Healy told the Tribunal that Autism Mixer was not incorporated, but was just a Facebook group which organised social events for its members. He said the first "committee" of Autism Mixer had drawn up its By-Laws in 2018, and these were occasionally updated by the Committee or at annual general meetings. He said Autism Mixer now had an appeal procedure, which had been developed since Mr Loxton's expulsion, and he had been invited to appeal but he had not done so. Mr Healy said he was not the "leader" of Autism Mixer, which was a cooperative group.

1. Ms O'Brien told the Tribunal she was a member of Autism Mixer and a Committee member.
2. She told the Tribunal Autism Mixer had been established in about 2018 - 2019. She said it had grown out of discussions following attendance at workshops arranged by Autism SA. She had attended some of these workshops and had realised from discussions with other attendees that people often wanted different forms of interaction to those offered by Autism SA, in particular informal social interaction.
3. Ms O'Brien said she had been involved in setting up a Facebook group to facilitate this sort of social interaction. She said she is an administrator of the Autism Mixer Facebook page, responsible for posting and moderating posts to the page to ensure the posts on the page are consistent with the purpose of the group. She said the Facebook group is private, but anyone can join, so long as they are over 18 years of age, live in South Australia, and are on the autism spectrum. When members join, they agree to operate according to the group rules, which are "pinned" on the Facebook page.
4. Ms O'Brien said that Autism Mixer organised social events, generally monthly, and she would post a notice relating to the proposed event, setting out its details and the arrangements. Each event would generally have two "hosts", responsible for the arrangements of the event.
5. Ms O'Brien said that Mr Loxton had joined Autism Mixer in about 2019. She did not meet him in person for some time. She said that even before participating in any Autism Mixer events Mr Loxton had been very pushy in posting advertisements on the Autism Mixer site concerning activities of his own separate social group. She said such advertisements were against Autism Mixer's rules, which did not allow "cross promotion", but she had initially permitted this. However, as this continued she had raised it with Mr Loxton, and he agreed to stop making the posts. However, she said he continued to be persistent and kept trying to "trick" or persuade her into allowing the posts relating to his interests or activities, and eventually she told him that if he did continue to persist, he would be "kicked out", and not to ask again. Mr Loxton agreed to this. She said this was the "first warning", and the correspondence concerning this (in texts) was provided to the Tribunal.
6. However, Ms O'Brien said, Mr Loxton almost immediately again sought to post another item concerning a non-Autism Mixer event. He sought to justify this, but Ms O'Brien told him she would not negotiate further and refused to permit the post. She said this was the "second warning". She said he exhibited no apology or changed behaviour, and she considered his behaviour to be disrespectful to her, pushy, and rude.
7. Ms O'Brien said there had been considerable discussion of Mr Loxton's conduct at the Autism Mixer Committee. She said he was regarded as "very pushy", and other members felt uncomfortable with this and felt harassed by him.
8. Ms O'Brien said she was the host of the Christmas picnic. She said that at some stage of the afternoon she was sitting on a rug talking to Ms E and Mr Loxton came and joined them. She said it was apparent to her that Ms E was not comfortable talking to Mr Loxton, and Ms E left the area and later left the picnic. Ms O'Brien had not heard any of the conversation Mr Loxton had with Ms E, but she said she was aware that Ms E appeared uncomfortable and was not engaging with him at all. Ms E later complained to Ms O'Brien about Mr Loxton's conduct and said she had felt harassed by him. Concerns about the matters Ms E raised meant that a Committee meeting was convened to discuss the complaint.
9. Ms O'Brien said that other Committee members also had long experience of Mr Loxton's persistence and pushy behaviour and regarded this as a failure to recognise and respect boundaries, including personal boundaries, and the Committee members took the view his continued membership of the group put other members at risk of discomfort, and there was a general feeling that Mr Loxton was "not a good fit" for Autism Mixer.
10. Ms O'Brien said that Mr Loxton's inappropriate conduct toward Ms E represented his third "breach" of the rules, and so justified his expulsion from the group. She said members were not lightly expelled, but she said that the Committee was concerned to do what was best for the group overall, and if he was not a "good fit', this would not benefit anyone.

1. Mr Tisato said he was a Committee member of Autism Mixer, and also an administrator of the Facebook page.
2. Mr Tisato said he contacted Mr Loxton on 18 January 2022, after the expulsion, because an Autism Mixer member had come to him with a complaint concerning Mr Loxton. He sent a text to Mr Loxton asking him not to contact Autism Mixer members. Mr Tisato said he had never had any dealings personally with Mr Loxton prior to this and had not met him. He said Mr Loxton had apologised about the contact with the member, but Mr Tisato had wanted to make sure Mr Loxton understood the complaint was about respecting personal boundaries.
3. Mr Tisato said he was a member of the Committee when it met to consider Ms E's complaint and voted to expel him. He said he had seen Ms E's written complaint but had not been a witness to the event. He said there had been rumours and negative comments concerning Mr Loxton's conduct. Mr Tisato said his view was that Mr Loxton did not fit in with the group, and he thought the group should be able to focus on its social aspect, not an ongoing conflict with Mr Loxton. He said it was important all members felt safe, and it was this which had motivated his vote for Mr Loxton's expulsion.

1. Mr Bull said he had been a member of Autism Mixer's Committee for about 12 months. He said he was also a member of another social group for people with autism, which met for social events, and he had met Mr Loxton through this other group, and they had mutual friends.
2. Mr Bull said he had not attended the Christmas picnic, but had seen Ms E's complaint. As a member of the Committee, he had been part of the decision making concerning the complaint. He said the decision to expel Mr Loxton was based on protecting vulnerable members of the group, and the group considered it could not tolerate harassing behaviour which made other members uncomfortable and to feel unsafe.
3. Mr Bull said that he regarded Mr Loxton as pushy, autocratic, and not considerate of other people's needs, and he had seen this in operation in the other autism social group, and he knew a number of others who were uncomfortable with Mr Loxton. On this basis he considered Mr Loxton not to be a good fit for Autism Mixer.

1. In considering a complaint pursuant to the EO Act, the Tribunal must consider if the complaint discloses conduct which may constitute unlawful discrimination within the terms of the EO Act.
2. The EO Act makes only some discriminatory conduct unlawful, and only if the asserted discrimination occurs in the course of certain prescribed circumstances. Mr Loxton's allegations are of discrimination on the ground of his disability, which is a ground for unlawful discrimination under the EO Act. He asserts that this discrimination was by an association, and his complaint was made against Mr Healy, and Autism Mixer was joined as a respondent to the complaint.
3. It is only where all the elements required by the EO Act are established by Mr Loxton, that is, that discriminatory acts occurred; the discrimination was on the ground of his disability; and that the discrimination on that basis was perpetrated by an association, that his claim will be established.
4. Mr Loxton's complaint is that, because of his disability, which makes it difficult for him to recognise when he is causing discomfort to others by his behaviour, Mr Healy and Autism Mixer expelled him as a member of the association Autism Mixer. His complaint is that he was treated unfavourably (by being expelled from Autism Mixer) on the ground of his disability, namely autism, and this discrimination occurred because of the actions of Mr Healy, a member of Autism Mixer's Committee, and Autism Mixer.
5. Accordingly, there are a number of matters which must be addressed in determining Mr Loxton's complaint:
   • Does he have a disability within the meaning of the EO Act?
   • Did an association discriminate against Mr Loxton on the ground of his disability by expelling him from the association or subjecting him to other detriment?
   • Did Mr Healy discriminate against him on the ground of his disability by expelling him from the association or subjecting him to other detriment?
   • Was the action taken by Mr Healy and Autism Mixer made on the basis of Mr Loxton's disability, namely autism, or on some other basis?

Identity of the respondent and the legislative framework

1. The complaint referred to the Tribunal by the Commissioner was against Mr Healy. At a directions hearing on 1 February 2023, Autism Mixer was added as a respondent, but the reasons for this are not stated in the directions. At this hearing Mr Loxton said this had been agreed at the directions hearing.
2. At this hearing Mr Healy told the Tribunal he was not in any sense "the leader" of Autism Mixer, but agreed he was a member of its Committee. He said he had agreed at the directions hearing he was happy to be nominated as respondent "on behalf of" Autism Mixer.
3. He also gave evidence concerning the nature and status of Autism Mixer, as did Ms O'Brien, another member of the Committee. They said that Autism Mixer is not an incorporated body, but was a closed Facebook group for people with autism, through which social events for its members were organised. Autism Mixer has rules which had been drawn up by the original committee, and modified from time to time; a Committee which met occasionally and kept minutes of its meetings; and has "administrators" for its Facebook account (Ms O'Brien and Mr Tisato) who monitor and moderate material posted on the Facebook page so it is consistent with the Autism Mixer Rules.
4. I accept this evidence. It is clear from that evidence that Autism Mixer is not an incorporated association.
5. An unincorporated association has no status in law, and has no separate legal existence from its members: it cannot act on its own account as it has no legal personality or status. It cannot enter into contracts, sue or be sued. It is not subject to legal regulations related to "associations". An unincorporated association is not an "association" in law at all: it is not a legal entity separate from its members. It is its members who are exposed to legal liability if any legal action is brought in relation to actions taken purportedly in the name of the "association". An unincorporated association is merely a collection of people acting together, who may choose to manage their arrangements by setting "rules", but these will apply only as among themselves.
6. I am satisfied that as Autism Mixer is not an incorporated association, no legal action can be taken against it as it does not exist as a legal entity, so no complaint can be formally made against it. It cannot be a respondent in this matter. Accordingly, I will direct that Autism Mixer be removed as a respondent in this matter.
7. A legal complaint may be made against members of Autism Mixer, jointly or severally. In this matter the complaint has been made against Mr Healy, another member of Autism Mixer. As an individual member of Autism Mixer, a complaint may be brought against Mr Healy.
8. However, this raises an issue of the applicability of the EO Act to this complaint.
9. The Commissioner referred Mr Loxton's complaint to the Tribunal at his request, having formally declined his complaint which had alleged discrimination on the ground of disability in the area of associations, contrary to ss 66 and 72 of the EO Act. The Commissioner in her referral to the Tribunal states as follows:

I do not consider that there is a causal link between the Complainant's treatment and his disability. In my view, the Complainant was banned from the club because of his behaviour, rather than due to his diagnosis of Autism.

10. The Commissioner's rejection of Mr Loxton's complaint, and her referral to the Tribunal, relied on s 72 of the EO Act.
11. Section 72 of the EO Act is as follows:

72 - Discrimination by associations > > (1) It is unlawful for an association to discriminate - > > (a) ... > > (2) Against a member of an association on the ground of disability - > > (i) ... > > (ii) ...

(iii) by expelling that member from the association or subjecting him or her to other detriment.

1. "Association" is not defined in the EO Act. However, since s 72 of the EO Act is concerned to impose a legal obligation on associations, it must be taken to be referring to incorporated associations: that is, bodies with an established legal personality, capable of taking responsibility for its own actions and being held responsible in law for those actions.
2. Autism Mixer has no obligations pursuant to s 72 of the EO Act as it is not an "association" in the legal sense with which s 72 is concerned. But nor does s 72 of the EO Act impose any legal obligation on Mr Healy, as he is not "an association" either: he is an individual member of an unincorporated association.
3. Section 72 of the EO Act does not provide a relevant basis for Mr Loxton's complaint. It appears however this was not a relevant factor in the Commissioner's rejection of his complaint.
4. Before Mr Loxton's complaint can be further considered it must be determined if there is any other section of the EO Act that could be relevant to his complaint.
5. In another matter concerning a separate complaint made by Mr Loxton (Loxton v Fischer [2022] SACAT 117, 2022/SA002587), the Tribunal considered that although

s 72 of the EO Act was not relevant (for the same reasons as I have found here), s 76 might be of relevance. 6. Section 76 addresses discrimination in the provision of goods and services, whether or not the goods or services are provided for payment, and includes services encompassing access to or use of a place or facilities that members of the public are permitted to enter or use, and entertainment, recreation or refreshment (see s 5 of the EO Act). 7. Section 76 makes it unlawful for a person who offers or provides services to discriminate against another on the ground of disability by refusing or failing to provide or perform those services, or in the terms or conditions on which or in the manner in which the services are performed. 8. A complaint alleging discrimination contrary to s 76 could be made against Mr Healy, as he is "a person". However, preliminary issues also arise in this context. Did Mr Healy offer or provide services to which the EO Act applies to Mr Loxton? Were any such services (opportunities to engage in social events with other Autism Mixer members) services to which the EO Act applies, such as use of a place or facilities that members of the public are permitted to enter or use, or entertainment, recreation or refreshment? 9. Mr Healy told the Tribunal he was not the "leader" of Autism Mixer, which was a group of people who made arrangements for social opportunities for its members. He was one of a number of members of the Committee of Autism Mixer. It was Mr Healy who received the complaint from Ms E, and it appears he may have convened the Committee meeting to discuss it. It was he who initially communicated to Mr Loxton that he had been expelled from membership of Autism Mixer, but this followed minuted discussion and a vote within the Committee. It was not a decision solely made by Mr Healy. Mr Loxton said that Mr Healy determined the applications for membership of Autism Mixer, but Ms O'Brien said this was determined according to the rules of Autism Mixer. 10. It appears to me difficult to conclude that Mr Healy is a person who offers or provides services to which the EO Act applies, as an individual member of an informal Committee which enables social arrangements for its loosely connected members. However, I make no finding concerning this matter at this point. 11. The "services" in issue appear to be the opportunity to engage and participate in social activities organised by some members of Autism Mixer (the hosts), and attended by other members of Autism Mixer. While this may well constitute "services" in the broad general sense referred to in the EO Act, and they may involve the use of a place or facilities that members of the public are permitted to enter or use (such as the Botanic Gardens where the Christmas picnic was heard, or a cinema), it is not the use of the place or facilities which is the issue here, but rather participation and engagement with the other members of Autism Mixer. Even if an understanding of "services" was extrapolated to include this notion of participation and engagement, this engagement is not open to members of the public: it is only open to members of Autism Mixer. In my view it is difficult to conclude that s 76 of the EO Act could be applicable to Mr Loxton's complaint. 12. However, at this point I make no finding concerning the application of s 76 of the EO Act to Mr Loxton's complaint, and I note again that I have heard no specific submissions concerning this matter. 13. However, these considerations illustrate some of the difficulties in determining this complaint. It appears these matters, including who is the proper respondent to Mr Loxton's complaint, and accordingly, under what relevant provision of the EO Act could his complaint be made, were not considered by Commissioner during her consideration of the complaint prior to rejection of the complaint and referral to the Tribunal. Such considerations are essential prior to referral, especially where parties are unrepresented. If such consideration had occurred it seems unlikely Mr Healy would have been agreeable to expose himself alone to the possibility of legal liability, and it may be that Mr Loxton might have pursued his complaint differently.

1. Mr Loxton provided the Tribunal with a medical assessment which indicated he had been diagnosed as on the autism spectrum. In addition, I note that the other members of Autism Mixer had accepted that he was on the autism spectrum as it had accepted him as a member. However, Mr Loxton has not provided the Tribunal with any other evidence of the nature of his disability or its impact on his behaviour or functioning.
2. Disability is defined by the EO Act as including a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, and a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour (see s 5(f) and (g) of the EO Act).
3. I accept that Mr Loxton has a disability within the meaning of the EO Act.
4. Mr Loxton's evidence was that he had been expelled as a member for Autism Mixer because he had failed to recognise that his interaction with Ms E at the Christmas party had caused her distress or made her uncomfortable, and had therefore acted inappropriately in his dealing with her. He told the Tribunal any inappropriate behaviour on his part was a consequence of his autism, which in his case meant he failed to recognise non-verbal cues in social interactions, with the consequence that if a person felt uncomfortable with his conduct or presence, but did not articulate this, he did not realise there was any issue in the interaction. He submitted then that to expel him because Ms E was upset at his failure to recognise her discomfort and act accordingly, was discrimination on the ground of his disability.
5. Mr Loxton also argued that he was improperly expelled according to Autism Mixer's By-Laws because, he asserted, he had not breached the rules three times, as he did not accept that the second warning was justified or involved a breach of the Rules; and that in any event he had been given no opportunity to provide his response to Ms E's complaint.
6. The evidence of Mr Healy and the other Committee members of Autism Mixer was that Mr Loxton had been expelled because he had made Ms E uncomfortable, because he had breached rules of Autism Mixer three times, and because he "wasn't the right fit" with other Autism Mixer members.
7. I am not satisfied on basis of the evidence before me that Mr Loxton was expelled as a member of Autism Mixer as a result of an act of discrimination based on his disability. On the basis of the evidence and submissions before me I am satisfied that Mr Loxton's expulsion as a member of Autism Mixer was essentially because of other members' view that he did not "fit in" well with the Autism Mixer membership. The decision was based on his conduct and behaviour, not his disability.
8. The evidence before me points to two matters relevant to the decision to expel Mr Loxton from membership. The first is Mr Loxton's "fitting in" at Autism Mixer, demonstrated by his behaviour initially in his dispute with Ms O'Brien concerning his postings on the Facebook page. It seems from the texts provided that Mr Loxton did appreciate that "no cross postings", or promotion of other groups on the Facebook page, was a rule, and also that his ongoing requests to make his posts was irritating to Ms O'Brien, who resisted his requests and kept reiterating the rule, but nevertheless he persisted with his requests. The texts suggest that, even when he had apparently accepted Ms O'Brien's decision, shortly thereafter he started again: Mr Loxton states that the nature of this proposed post was different, but I am satisfied it was the same point. There was no evidence or submission that this "pushy" conduct, and inability to accept the application of the rules by the administrator, Ms O'Brien, resulted from Mr Loxton's autism, but it does demonstrate a reluctance to take no for an answer, and a preparedness to push the limits, not recognising or accepting rules and boundaries. The Autism Mixer Committee members who gave evidence all remarked on this characteristic, and considered it a difficult, disruptive and inappropriate attitude and behaviour.
9. The minutes of the Autism Mixer Committee meetings show there was ongoing discussion concerning Mr Loxton's conduct, and some discomfort about his membership. This included reference to some rumours and gossip concerning his conduct as a member of other organisations. The Committee also discussed the complaint from Ms E that she did not feel comfortable with him as member, and her complaint also included reference to his behaviour elsewhere, and toward her friends. All this suggests that Mr Loxton was expelled because he did not fit in with the other members, who felt uncomfortable with him for one reason or another (regardless of whether that response was appropriate or justified).
10. I am satisfied that this response, shared by a number of members, was not based on Mr Loxton's disability, but on his perceived conduct.
11. However, a second issue is that both Mr Loxton and Mr Healy and the Committee members referred to the expulsion in terms of compliance with Autism Mixer rules. Mr Loxton, as well as asserting that the expulsion was based on discriminatory treatment, asserted that his expulsion was contrary to the Autism Mixer By-Laws. His argument in this respect was that establishment of Ms E's complaint did not represent a "third strike", because the "second strike": was not justified. His submission in this respect was that the expulsion was not effective because it was not consistent with Autism Mixer's By-Laws. This argument has no connection with the EO Act, but nevertheless was inextricably mixed in with the evidence and submissions concerning the EO Act complaint.
12. Having heard the evidence and submissions, it appears to me that Mr Loxton's conduct did come within the "three strike rule" to which the Autism Mixer Committee members referred.
13. However, those By-Laws and their application by the Committee also appear significantly problematical: the Committee in its consideration of Ms E's complaint referred to and appeared to rely on unsubstantiated rumours of Mr Loxton's conduct elsewhere as relevant to his conduct to Ms E, and indeed, Ms E's complaint refers to this (his conduct with her friend, and his expulsion from the Games Club); and there appears to be no understanding by the Committee members of the significance of obtaining a response from Mr Loxton to the complaint before acting on it. Indeed, at the hearing all the committee members said they did not believe it was necessary to obtain a response to the complaint from Mr Loxton, as the By-Laws did not require it, and they considered it more important to "protect" Ms E (described as a "vulnerable member") than to seek his explanation or response to her complaint.
14. Where a decision is to be made that affects a person's rights, interests or legitimate expectations, the common law recognises there is a duty to accord the person who will be affected a "right to be heard". This is known as procedural fairness or natural justice. Even though Autism Mixer is a private unincorporated association, the requirements of procedural fairness are likely to apply when it makes decisions concerning its members, especially in relation to expulsion. In a matter such as this, the "right to be heard" would mean seeking Mr Loxton's response to or explanation in respect of Ms E's complaint. It does not mean that Autism Mixer could not expel him, but that it should have considered his version of the events before it acted on the complaint to his detriment. In addition, basic principles of fairness in decision making mean that Autism Mixer should not act on rumour or unsubstantiated gossip or allegations, and should have put the complaint to Mr Loxton for his response before making its decision.
15. Nevertheless, despite these deficiencies in process, I am not satisfied that failure to grant Mr Loxton procedural fairness was as a result of his disability. Seeking a response from Mr Loxton may not have led to any different conclusion: that is, he may still have been expelled. It was not a fair process, but nor was it an unlawfully discriminatory process.

1. On the basis of the evidence and submissions before me I am satisfied that Mr Loxton's complaint of unlawful discrimination on the ground of his disability is not established.
2. Given the complexities of addressing this complaint within the context of the EO Act, it is difficult to neatly set out my conclusions on all aspects of this matter. Because of my conclusion that the evidence does not support Mr Loxton's complaint, that he was expelled from Autism Mixer because of his disability, I strictly do not need to make findings on other issues.
3. However, I am satisfied that neither Mr Healy nor Autism Mixer are appropriate respondents to a complaint made in respect of s 72 of the EO Act.
4. I make no finding as to whether Mr Healy could be a respondent to any complaint relating to s 76 of the EO Act, or as to whether s 76 could be relevant to Mr Loxton's complaint. I have expressed some preliminary views on this matter above, but note I did not raise this at the hearing nor receive any submissions concerning this matter. Nor was it apparently considered by the Commissioner.
5. I am satisfied in any event that Mr Loxton was not subject to unlawful discrimination on the ground of his disability.