McGeary v Match Group

1. The Tribunal's powers to review the dismissal of the complainant's complaint arise under s 72 of the ADA.
2. Section 72(1) of the ADA provides that if upon reviewing the dismissal of the complaint, the Tribunal is satisfied that the ADC made the correct decision in dismissing the complaint, the complaint lapses. Section 72(3) provides that if, on review the dismissal of the complaint, the Tribunal is not satisfied that the Commissioner made a correct decision in dismissing the complaint, the Tribunal is to deal with the complaint as if it were an inquiry under Division 4 of the ADA.
3. It is clear that the Tribunal's powers to review the dismissal of this complaint are also governed by the Tribunal's review jurisdiction under the Tasmanian Civil & Administrative Tribunal Act 2020 (the TASCAT Act), refer ss 74(1) and 75 of the TASCAT Act.
4. It has been authoritively stated by the Supreme Court of Tasmania that the review process pursuant to s 72 of the ADA is a comprehensive merits review. This review process is not confined to the material which was before the ADC. So much was stated by Porter J in State of Tasmania v Anti Discrimination Tribunal and other [2009] TASSC 48 at [27] - [29]. Of particular relevance at [47] of this decision, Porter J stated:

... Thus, when s 72 speaks of the Tribunal being satisfied of not that the Commissioner has made a correct decision", it means that the question is whether the decision was the correct one of the material before the Tribunal. The extent of such material is to be governed by relevance. That is interpretation which accords with the remedial nature of the legislation which better promotes its objects.

1. An initial telephone directions conference occurred on 15 May 2025.
2. From that time until 29 May 2025, when a further telephone directions conference occurred, the Match Group had not responded to Tribunal efforts to contact them to advise of the review process, and seeking their advice as to whether or not they wished to participate in it.
3. The outcome of the telephone conference was the complainant's review application was listed before me on 23 June 2025.
4. At this directions conference the nature of the review process was indicated to the complainant who clearly understood this advice. The outcome of the directions conference was that the complainant would provide written submissions in response to the dismissal of his complaint within 14 days.
5. On 7 July 2025, the Tribunal received the complainant's written submissions in relation to his review application.

1. The ADC rejected the complainant's complaint against the respondents on two 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 at [22], 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. At para [23] in Brett J's decision in Khalafallah his Honour reference the decision of Von Doussa J in the Federal Court decision of Nagasinghe v Worthington [1994] FCA 1387; [1994] 53 FCR 175 in which Von Doussa J agreed with President Sir Ronald Wilson's formulation and re-stated it as:

[W]hether there was any material before the Inquiry Commissioner which indicates any real possibility of there being some connection between the allegation and the relevant Act.

4. With regard to the word 'misconceived', in Langley v Niland [1981] 2 NSWLR 104 at [107], it was stated whilst 'misconceived' means 'founded upon a wrong idea as to the facts'.
5. The second basis of the dismissal 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. It is incumbent upon a complainant to prove a link or nexus between the respondent's alleged conduct and the claimed attribute, in this case an irrelevant criminal record.
8. So much was clearly stated in Chairperson Webster's decision (as he then was) in Shayne Arkley v CatholicCare Tas and Andrea Witt [2017] TASADT 3 referencing the Federal Court decision in Ebber v Human Rights and Equal Opportunity Commissioner [1995] FCA 134; [1995] 129 ALR 455 at [468], and the Federal Circuit Court of Australia decision in Jin v South Australia [2016] FCCA 986 at [56]. At paragraph [45] of Arkley he stated:

This is, Mr Arkley, in order to defeat an application for summary dismissal, needs to have sufficient material by way of evidence to establish there is a sufficient nexus or link between the respondents' behaviour and Mr Arkley's attribute, namely age. Although Mr Arkley holds the belief there is a nexus between his treatment at the hands of the respondents and his age, there is no evidence which directly supports that link or from which that nexus can be inferred. Accordingly the ADC was correct in dismissing this complaint.

The statutory provision relevant to this review

1. The relevant statutory provisions in relation to direct discrimination are set out in ss 14 and 16 of the ADA as follows:

As was stated in Cain v The Australian Red Cross Society [2009] TASADT 3 at [403]:

(1) Discrimination to which this Act applies is direct or indirect discrimination on the grounds of any prescribed attribute.

(2) Direct discrimination takes place if a person treats another person on the basis of any prescribed attribute, imputed prescribed attribute or a characteristic imputed to that attribute less favourably than a person without that attribute or characteristic.

(3) For direct discrimination to take place, it is not necessary -

(a) that the prescribed attribute be the sole or dominant ground for the unfavourable treatment; or

(b) that the person who discriminates regards the treatment as unfavourable; or

(c) that the person who discriminates has any particular motive in discriminating.

Discrimination on the grounds of an attribute (s 16)

Relevantly, s 16 prescribes that a person must not discriminate against another person on the ground of any of the following attributes:

Irrelevant criminal record is defined in s 3 of the ADA and relevantly for the purposes of this review at (i) states:

(i) the circumstances relating to the offence for which the person was convicted are not directly relevant to the situation in which the discrimination arises;

The relevant area of activity is defined in s 22 of the ADA and states:

(1) Subject to the exceptions and exemptions specified in Part 5 , this Act applies to discrimination and prohibited conduct, other than inciting hatred, by or against a person engaged in, or undertaking any, activity in connection with any of the following:

...

1. The ADC correctly stated that in order to show direct discrimination under s 14 of the ADA, the complainant must establish he was treated less favourably because of his asserted attribute of irrelevant criminal record, than a person without that attribute. Citing Cain v The Australian Red Cross Society [2009] TASADT 3, the ADC correctly stated that it must be considered whether the irrelevant criminal record is a true and genuine reason for the alleged treatment of the complainant by the respondent.
2. Although it was agreed that the complainant had been banned by the Match Group Inc. from both the Hinge and Tinder Apps, and that being banned from those dating apps may be less favourable treatment, the question was whether or not the complainant's criminal record is relevant or irrelevant to the circumstances in which the alleged discrimination arises.
3. In its decision to dismiss the complainant's complaint, the ADC cited clear evidence that on 7 December 2021, the complainant was convicted of one count of using a carriage service to access child exploitation material and one count of child abuse material obtained or accessed using a carriage service. Having been convicted of a sex crime under the Criminal Code Act 1924 the complainant's name was also placed on the Community Protection Offender Register in accordance with the Community Protection (Offenders Reporting) Act 2005, for a period of three years.
4. The ADC obtained this information from the Comments on Passing Sentence of Porter AJ in The Queen v Alex McGeary delivered on 7 December 2021.
5. The ADC found that at the time the complainant's accounts were banned from the Hinge and Tinder Apps in September 2024, the complainant's name remained on Community Protection Offender Register.
6. As was indicated in Porter AJ Comments on Passing sentence, the complainant's name was placed on that register because, in accordance with legislation, his Honour could not be satisfied that there was no risk of him reoffending.
7. The ADC specifically referenced that the reasons for keeping police informed as to the whereabouts of a person whose name is on the register is to effectively monitor offenders, protect children, and mitigate the risk of the serious harm caused to children and the community by sexual offending.
8. The ADC also noted that Australia has adopted an industry developed code of practice for dating apps to protect users from harm and abuse. The ADC cited research by the Australian Institute of Criminology about how online dating platforms are being exploited by predators that facilitate child exploitation and abuse, and that many users have been subject to online or in person sexual violence facilitated via dating apps.
9. The ADC stated that taking all of this material into account, the view had been formed that the complainant's criminal record was a relevant risk factor and the circumstances of his conviction are directly relevant to the situation in which the discrimination arises. In other words, the ADC stated the complainant does have a relevant, not an irrelevant, criminal record.
10. The complainant's contradictory position to that stated by the ADC was detailed in the material he had provided to the ADC before he sought this review. It was focused in his written submissions provided to the Tribunal on 7 July 2025.

1. In his written submission the complainant stated that the ADC's decision is invalid as the discrimination failed to meet the definition of 'relevance'.
2. He asserted a number of circumstances which he alleged showed a lack of direct relevance of the offences he was convicted of. These were:
   • His inclusion on the sex offenders register does not make the circumstances relating to the offence direct. "My charges were in no way involved with Tinder, Hinge, or any other Match Group platform".
   • The asserted risk of sexual violence, risk to protect children or parent using these apps, the possibility of children using these apps were all not matters making the circumstances relating to the offence directly related to those apps.
   • The Match Group's terms and condition seeking to mitigate risks again did not make the circumstances relating to the offence directly related to those apps (the complainant asserted a similar argument in relation to the relevant code of practice referenced by the ADC).
3. Within his written submissions under the heading 'Further Arguments', the complainant asserted that by upholding a ban from dating apps based on speculative safety concerns, this is effectively overruling the judgement of the Supreme Court which had full knowledge of his conviction, and a power to impose restrictions on his use of online platforms if it deemed him a risk.
4. Under this heading, the complainant also asserted that the ADC's comment on page 6 of the investigation reasons, where it was stated:

The apps provide services enabling people to meet either online or in person and where sexual activity may be contemplated. There is a possible risk of sexual violence to people who use the services, demonstrated a bias on that issue by the ADC, and shows discriminatory behaviours on the part of the ADC as his offences were entirely non violent [sic] and entirely non contact [sic].

5. The complainant asserts that as his offences were entirely nonviolent and entirely noncontact, the suggestion of a risk of sexual violence by the ADC was demonstrating bias on that issue and shows discriminatory behaviours on the part of the ADC.
6. The complainant's written submissions also went on to make comments concerning the ADC's failure to consider the causes of recidivism and in some way a failure to meet a nonspecific duty of care.

1. As the respondents have not provided any material to the Tribunal as part of this review of dismissal application, I have only been able to consider the materials they provided to the ADC whilst the complaint was being investigated by the ADC.

1. It is clear that s16 of the ADA prohibits discrimination on the basis of an attribute. To establish discrimination, the complainant must be able to show that there is a sufficient nexus or link between the respondent's behaviours and one of the s 16 attributes.
2. The existence of a criminal record is not of itself an attribute to which discrimination is prohibited. It is only an irrelevant criminal record within the meaning of the ADA.
3. In its decision, the ADC identified that the definition of 'irrelevant criminal record' in s 3(i) applied, that being that the circumstances relating to the offence for which the person was convicted are not directly relevant to the situation in which the discrimination arises.
4. The ADC correctly noted that an assessment of whether a criminal record may amount to an attribute of an 'irrelevant criminal record' requires consideration of both the circumstances relating to the offence for which the complainant was convicted, as well as the situation in which the alleged discrimination arises.
5. In summary, the complainant's submissions are that the ADC was incorrect in determining that his criminal record was not an irrelevant criminal record and thus that he had not identified the connection between the respondent's actions in cancelling his Hinge and Tinder memberships, and an attribute required pursuant to s 16 of the ADA.
6. Having considered the ADC's decision, along with the submissions provided by the complainant and the respondent, I am satisfied that the ADC was correct in its findings that the circumstances in which the offence for which the complainant was convicted arose were directly relevant to the situation in which the discrimination arises and was thus correct to dismiss his complaint.
7. Although the complainant has put forward a number of circumstances which he asserts that the circumstances of his offending do not directly relate to the situation in which the discrimination arises, I do not accept any of them as demonstrating that the ADC was not correct in determining that the complainant did not have any relevant criminal record.
8. There was clear evidence that the complainant had been convicted on his own plea of guilty to sex crimes arising from his use of the internet. Although there was evidence before Porter J that the complainant fell into a group of offenders at low risk for contact sexual offending, and there is a moderate to low risk of him committing further offending similar to this; and that this risk is modifiable with treatment; the sentenced imposed by Porter J of a home detention order for six months along with conditions, and further that his name be placed on the Community Protection Offender Register for a period of three years from 7 December 2021, all have direct relevance to him being banned by the respondent from Hinge and Tinder Apps.
9. These apps are internet based, and the complainant's offending involved his use of the internet.
10. This relevance is also clearly supported by the respondent's reliance on its terms of use (relevant to both the Hinge and Tinder Apps). It is clearly indicated in these terms of use that an account is not authorised to be created or used unless it can be represented and warranted that the individual has "not committed, been convicted of, or pled no contest to a felony or indictable offence (or crime of similar severity), a sex crime....". It is further stated that use of the respective services of Hinge and Tinder is prohibited unless "you are not required to register as a sex offender with any state, federal or local offender registry".
11. On any assessment of the complainant's conviction, these were sex crimes, and at the time of his banning from Hinge and Tinder in the September period of 2024 his name remained on the Community Protection Offenders Register.
12. In my view, the ADC's noting of the Australian Industry Adopted Code of Practice for Dating Apps to protect users from harm and abuse, which followed research by the Australian Institute of Criminology about how online dating platforms are being exploited by online predators to facilitate child exploitation and abuse, and that many users have been subject to online or personal sexual violence facilitated by dating apps, was also an important consideration by the ADC.
13. The complainant's pleading guilty to offences involving the use of internet carriage services to access and possess child abuse material are directly relevant to the respondent's decisions not to allow him to open, maintain, or operate a Hinge or Tinder account.
14. For all of these reasons, I agree with the ADC's assessment and decision that the complainant's conviction for internet based sex offences to which he pleaded guilty and the consequent placement of his name on the Community Protection Offenders Register, are criminal proceedings which are directly relevant to the circumstances relating to the offence for which the person was convicted, and also relevant to the situation in which the discrimination arises.
15. Consequently, I find that the ADC made the correct decision in dismissing the complaint and as a consequent of s 71(2) of the Act, the complaint lapses.

1. Pursuant to s 71(2) of the Act, the complaint lapses.