Complainant's final written submissions 14 July 2025

Pursuant to s 99(1) of the Anti-Discrimination Act 1998 the complainant's complaint against the respondent is dismissed.

Direct discrimination - Indirect discrimination - prohibited conduct - Victimisation - Attributes - Gender.

Anti-Discrimination Act 1998; ss 3, 15, 16, 17, 18, 22, 79, 89, 99, 104.

Anti-Discrimination Commissioner v White [2023] TASSC 26;

Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349;

Lindisfarne R & SLA Sub-Branch and Citizen's Club Inc & Anor v Buchanan [2004] TASSC 73;

Briginshaw v Briginshaw (1938) CLR 336; [1938] HCA 34;

Cain v The Australian Red Cross Society [2009] TASADT 3;

Durston v Anti-Discrimination Tribunal (No 2) [2018] TASSC 48;

Lucy Orchard v Frayne Higgins [2020] TASADT 11;

Maree Summers v Department of Education & Ors [2019] TASADT 8;

Makkar v Australian Dispatch Company Pty Ltd t/as 131 008 Hobart ("ADCCO") and Carroll; Singh v Australian Dispatch Company Pty Ltd t/as 131 008 Hobart ("ADCCO") and Carroll [2020] TASADT 9;

Drummond v Telstra Corporation Limited (Anti-Discrimination) [2008] VCAT 2630;

Evershed v The City of Geraldton (1995) EOC 92-745;

Costello v Tasmania Police [2012] TASADT 9;

Kelly v Pensalfini [2019] TASSC 2.

1. On 6 September 2023, the complainant made allegations of indirect discrimination and prohibited conduct against the respondent to the Anti-Discrimination Commissioner (ADC).
2. On 13 May 2024, the ADC referred the complainant's complaints of indirect discrimination and prohibited conduct to the Tribunal for inquiry.
3. The complainant alleged that the respondent had indirectly discriminated against her and displayed conduct that was offensive, humiliating, intimidating, insulting or ridiculing pursuant to s 15 and s 17(1)(a) of the Anti-Discrimination Act 1998 (the ADA) on the basis of the complainant's gender - s 16(e) in the area of the provision of facilities, goods and services - s 22(1)(c).
4. These are my reasons for my decision to find the complainant's complaint against the respondent unsubstantiated.

1. From approximately May of 2022 the complainant became a member of a Launceston gymnasium which at that time was trading as KFM.
2. Subsequently, although the entity operating this gym remained the same, its name changed to the Launceston Institute of Fitness and Training ("LIFT"). The complainant continued to be a member of this gym after this rebranding.
3. On 7 February 2023, the complainant obtained a Police Family Violence Order (PFVO) against her then partner JG. At this time JG was also a member and training at LIFT as was his new partner EW.
4. On or about 8 February 2023, for reasons set out subsequently in this decision, the complainant suspended but did not cancel her membership of LIFT and commenced training at another venue. This membership suspension took effect from 16 February 2023.
5. On 30 May 2023, purportedly arising out of restraint order proceedings in the Magistrates Court of Tasmania, the complainant and EW executed an undertaking setting out the times at which they would train at the LIFT gym so they would not have any contact with each other at the times specified in the undertaking.
6. On or about 8 June 2023, the complainant revived her suspended membership at LIFT and recommenced training thereat.
7. Although there were at least two admitted breaches by the complainant of the undertaking with EW of 30 May 2023, a copy of which had been provided to LIFT, the substantive issues basing the complainant's complaint occurred from Sunday 6 August 2023 to Thursday 10 August 2023, the details of which are set out subsequently in this decision.
8. On 10 August 2023, Mr Adrian Finch of the respondent, in a conversation with the complainant, advised her that as a consequence of her conduct and that of her mother, MF, which had occurred on 8 August 2023 and involved EW, the respondent had taken the decision to suspend the complainant's membership of LIFT.
9. Without any further contact with the respondent, the complainant lodged her complaint with the ADC on 6 September 2023.

1. From the time of the ADC's referral of the complaint to the Tribunal on 13 May 2024 and the inquiry hearing on Wednesday 11 June 2025, a series of directions conferences were held to facilitate the preparation of the complaint for inquiry hearing, particularly that both parties clarified and provided indications of the evidence they intended to adduce at the inquiry hearing.
2. At the conclusion of the inquiry hearing on 11 June 2025 directions were made for the complainant to provide written closing submissions for the respondent to provide written closing submissions and for the complainant to provide any response to the respondent's written closing submissions, should she so desire.
3. On 25 June 2025, the complainant's written submissions were received. The respondent's written submissions were received by on 9 July 2025.
4. On 14 July 2025, the complainant's final closing submissions in response were received.

1. The complainant gave evidence under affirmation with a series of documents being tendered through her. These included the complaint and the outline of her evidence in chief.
2. The complainant was articulate and gave clear evidence in support to her complaint.
3. She was subjected to extensive cross-examination by the respondent's counsel. Of particular relevance to the current complaint was the complainant's regular response to questions in cross-examination regarding her suspension from the respondent in August 2023 and that it was her firm view that this was based on her gender, her clearly being female. She also considered her suspension and the non-suspension of JG and also EW to be unfair.
4. Under cross-examination she conceded that had both JG and EW been suspended on 10 August 2023 as she had been, she would not have made her complaint to the ADC.
5. She confirmed that the outcomes she desired if her complaint was substantiated were those indicated in her email of 4 June 2025. In relation to her claim for compensation she confirmed she had no evidence to support such a compensation claim, simply being reliant on the Tribunal to formulate a compensatory amount if the Tribunal found the complaint substantiated, and considered that compensation was an appropriate order to make.

1. MF, the complainant's mother, gave evidence that she had joined LIFT on 1 August 2023 to support and provide safety to her daughter. She also gave evidence in relation to the incident in the carpark at LIFT on 8 August 2023 which involved her dealings with EW.
2. In cross-examination MF was somewhat argumentative, indicating she did not consider her dealings with EW on 8 August 2023 to have any relevance to the complainant's complaint.

1. AC gave evidence under affirmation, confirming the contents of her statement to the ADC.
2. AC's evidence was led by the complainant to support the gender basis of her discrimination complaint, as purportedly similar behaviours had also occurred towards AC and involved a Mr Brian Finch at KFM Gym - before it was rebranded to LIFT.
3. AC was extensively cross-examination by counsel for the respondent.
4. It was clear during AC's evidence that the issues she had relating to her own domestic violence PFVO situation, although clearly being of serious concern and consequence to her, were matters which were dealt with by Competitive Edge, which at that time was an organisation AC was being a sponsored by. This was not KFM which later became the named respondent LIFT.

1. Mr Adrian Finch gave evidence under affirmation for the respondent.
2. Significant documentation was also tendered through him by consent.
3. It was apparent during this evidence that Mr Finch was frustrated by the complainant's regular assertion that her gender, being female, was the reason for his decision to suspend her membership of LIFT on 10 August 2023. Mr Finch was not shaken in his evidence that it was not the complainant's gender, but rather the following matters which he considered in his decision to suspend the complainant's membership of LIFT on that day:
   • The events of 6 August 2023 involving the complainant's covert filming of JG, leading to him being arrested for a breach of the PFVO.
   • The actions of MF in her dealings with EW in the carpark at LIFT on 8 August 2023.
   • Other reports of the complainant's alleged inappropriate behaviours from both EW, and other gym members, including police officers, amounting to breaches of the terms and conditions of her LIFT membership subsequent to her return to LIFT in June 2023.
4. Mr Finch also emphatically asserted that after 10 August 2023 the complainant did not seek to argue that her suspension should be lifted, or propose any other alternative plan to enable her to continue to be a member of LIFT before she made her complaint to the ADC in early September 2023.
5. Mr Finch made the point that LIFT was a business, and it did not wish to exclude members of LIFT if workable solutions could be found to enable all involved parties, even those involved in family violence and other difficult personal or domestic situations, to continue to be members of LIFT and to be able to train thereat.

1. In the referral report pursuant to s 79 of the ADA, the ADC indicated the complaint had been accepted because it disclosed possible:

indirect discrimination (s 15) on the basis of gender (s 16(e)) in connection with the provision of goods and services (s 22(1)(c));

conduct that is offensive, humiliating, intimidating, insulting or ridiculing of the complainant on the basis of gender (s 16(e)), in connection with the provision of goods and services (s 22(1)(c)), in breach of s 17(1) of the ADA.

1. On the authority of Anti-Discrimination Commissioner v White [2023] TASSC 26, a decision of Marshall AJ, it is not a requirement of the ADA for a complainant to explicitly identify the form of discrimination or prohibited conduct they allege to have experienced, nor the specific provisions of the ADA. That is a question for the Tribunal to determine based on the facts and evidence before it in the inquiry.
2. In the complainant's and respondent's closing submissions, reference was made by them to allegations of victimisation pursuant to s 18 of the ADA (it should be noted that both parties incorrectly referenced s 104 in their written submissions when dealing with this aspect).
3. Because of these assertions and the evidence before the Tribunal following the inquiry hearing, I have also considered victimisation in this decision.

Direct discrimination v indirect discrimination

1. In Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, which was applied in Lindisfarne R & SLA Sub-Branch and Citizen's Club Inc & Anor v Buchanan [2004] TASSC 73, it was held that direct and indirect discrimination are mutually exclusive forms of discrimination, that is, discrimination can be direct or indirect but not both.
2. In Waters v Public Transport Corporation, the High Court stated at [17]:

Within the Australian legal system, it is usual for anti-discrimination legislation to ban discriminatory practices in terms which deal separately with treatment which differentiates by reason of some irrelevant or impermissible consideration and with practices which, although not overtly differentiating on that basis, have the same or substantially the same effect.

3. Justices Dawson and Toohey in the Waters v Public Transport Corporation (supra) specifically stated as follows at [21]:

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 treated less favourably than the latter...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.

4. In light of these authorities and based on the complainant's submissions and the evidence before me, only indirect discrimination, prohibited conduct as alleged, and victimisation have been considered in this decision.
5. It is also apparent from the complainant's closing submissions that she also alleges, by virtue of the respondent's alleged discriminatory behaviours, that there has been a breach by the respondent of s 104 of the ADA.

1. It is clear that the onus is on the complainant to prove her allegations according to the civil standard, that is on the balance of probability.
2. This is consistent approach of the Tribunal which has followed the principles set out in Briginshaw v Briginshaw (1938) CLR 336 [1938] HCA 34 per Dixon J:

The seriousness of an allegation made, the inherent livelihood of occurrence of a given description, or the gravity of the consequence flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved.

1. The Act prohibits discrimination on the grounds of any prescribed attribute. A prescribed attribute is defined in s 3 of the Act as an attribute specified in s 16 of the Act. Gender is a prescribed attribute (s 16(e)).

1. In Cain v The Australian Red Cross Society [2009] TASADT 3 the former Tribunal held at [57], the elements of indirect discrimination were as follows:
   1. The imposition of a condition, requirement or practice.
   2. The condition, requirement or practice is unreasonable in all the circumstances.
   3. It has the effect of disadvantaging a complainant.
   4. The complainant is disadvantaged as a member of a group of people who share or are believed to share a prescribed attribute more than a person who is not a member of that group.
2. In Cain v The Australian Red Cross Society (supra) when dealing with the imposition of a condition, requirement, or practice, the Tribunal stated at [58], [59] and [60]:

The words "condition, requirement, or practice" have a broad meaning. In the employment context it has been considered that the words cover any form of qualification or requisite demanded by an employer of his employee: Australian Iron Ore and Steel Pty Ltd v Banovic [1989] HCA 56, (1989) 168 CLR 165 per Dawson J at page 185. > > The first step is to identify with precision the actual condition, requirement or practice (see Australian Iron Ore and Steel Pty Ltd v Banovic at page 185).....The question of whether the requirement was imposed by a respondent by the High Court in New South Wales v Amery [2006] HCA 14. The case involved a number of casual teachers who claimed indirect discrimination due to differences in their pay compared to permanent teachers. Most of the casual teachers had applied to be permanent teachers but placed a geographical caveat on their placement mainly due to family reasons. The majority of the judges found that there was no requirement or condition imposed by the Department on the casual teachers (see joint judgement Gummow, Hayne and Crennan JJ at paras 63-82 and Callinan J at paras 205-208).

3. When dealing with the legal principles relating to unreasonable in all the circumstances at [67] - [68] it was stated:

The principles relating to unreasonableness are well settled and there is no dispute about those principles and the correct approach to be taken by the Tribunal in assessing whether the deferral policy applied to Mr Cain by the Red Cross was unreasonable (see Mr Cain's Submissions in Reply, para 5.4). > > The central principles are conveniently summarised in the Full Court Federal Court decision of Catholic Education v Clarke [2004] FCAFC 197; [2004] 138 FCR 121 per Sackville and Stone JJ at pp145-146: > > "(i) The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances; Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission [1997] FCA 1311; [1997] 80 FCR 78 at 111, per Sackville J (with whom Davies and Beaumont JJ agreed), and the authorities cited there; > > (ii) The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other: Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; [1989] 23 FCR 251 at 263, per Bowen CJ and Gummow J; Walters [sic] v Public Transport Commission at 395-396, per Dawson and Toohey JJ; at 383, per Deane J. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Commonwealth v Human Rights and Equal Opportunity Commission [1995] FCA 1067; [1995] 63 FCR 74 at 82-83, per Lockhart J; > > (iii) The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles at 263. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Australian Medical Council v Wilson [1996] FCA 1618; [1996] 68 FCR 46 at 61-62, per Heerey J; Commonwealth Bank v HREOC at 112-113, per Sackville J; and > > (iv) The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator's objectives without recourse to the requirement condition: Waters v Public Transport Corporation at 395, per Dawson and Toohey JJ (with whom Deane J agreed on this point, at 383-384). However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable: Commonwealth Bank v HREOC at 88, per Beaumont J; Victoria v Schou [2004] VSCA 71; [2004] 8 VR 120 at [26], per Phillips JA."

Conduct that is offensive, humiliating, intimidating, insulting or ridiculing

1. Section 17(1) of the ADA relevantly provides:

17. Prohibition of certain conduct and sexual harassment > > (1) A person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute referred to in section 16(e), (a), (b), (c), (d), (ea), (eb) and (k), (f), (fa), (g), (h), (i) or (j) in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed.

2. In the decision of Brett J in Durston v Anti-Discrimination Tribunal (No 2) [2018] TASSC 48 at [63] his Honour stated:

Section 17(1) is also a provision which prohibits conduct. By its terms, it is apparent that the provision has an extremely wide ambit of operation. Some aspects of this are as follows:

(a) The scope of conduct is unlimited. It encompasses "any conduct", which falls within the description contained in this section. However, the section will almost always be concerned with conduct that involves communication in one form or another. It follows that the section has the capacity to burden the implied freedom of restricting communications in a wide variety of circumstances.

(b) Read literally, the words "offends, humiliates, intimidates, insults or ridicules", are vague terms which have the potential to encompass a broad range of subjective emotions and feelings. The emotional response will vary from one person to another. However, judicial interpretation of the words "offend, insult, humiliate or intimidate", in respect of similar, but not identical provisions under s 18C of the Racial Discrimination Act 1975 (Commonwealth) suggest that the operation of the section is more restricted than the literal meaning of the words would suggest. In Eatock v Bolt [2011] FCA 1103, 197 FCR 261 Bromberg J endorsed judicial statements which require the conduct caught by s 18C to have "profound and serious effects and not to be likened to mere slights." Creek v. Carins Post Pty Ltd [2011] FCA 1107, 120 FCR 243 at [16] [Kiefel J]: Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16 at [70] (French J as he then was), Jones v Scully [2002] FCA 1080, 2002 (120 FCR 243 at 102 Healy J.)

1. Thus, applying the principles enunciated in Durston (supra), as the operation of s 17 is more restricted than its literal meaning of the words set out therein, this requires the complaint of conduct to have profound and serious effects and not to be likened to mere slights.

(1) A person must not victimise another person because that other person -

(a) made, or intends to make, a complaint under this Act; or

(b) gave, or intends to give, evidence or information in connection with any proceedings under this Act; or

(c) alleged, or intends to allege, that any person has committed an act which would amount to a contravention of this Act; or

(d) refused or intends to refuse to do anything that would amount to a contravention of this Act; or

(e) has done anything in relation to any person under or by reference to this Act.

(2) Victimisation takes place if a person subjects, or threatens to subject, another person or an associate of that other person to any detriment.

1. In the decision Lucy Orchard v Frayne Higgins [2020] TASADT 11, Tribunal Member Cuthbertson SC (as she then was), undertook a detailed review of the law relating to victimisation pursuant to the Act.
2. At [277] - [287] of Lucy Orchard v Frayne Higgins Tribunal Member Cuthbertson clearly stated the law as follows:

In order to establish that victimisation has occurred, a complainant must show that any actual or threatened detriment experienced by them, or an associate of theirs, was because of one or more of the matters referred to in s.18(1) of the Act. These matters are commonly referred to as "protected conduct". If such victimisation is as a result of some other matter, it is not prohibited by s.18 of the Act: von Stalheim v Anti-Discrimination Tribunal and Attorney-General for the State of Tasmania [2007] TASSC 9, Evans J at [15]. > > What is required to establish that there is a sufficient causal link between the protected conduct set out in ss.18(1)(a)-(e) of the Act and the detriment that a person says they have been subjected to (or threatened to be subjected to) has been considered in the context of like legislation in other jurisdictions but has not been the subject of appellate consideration in Tasmania. To establish the relevant causal connection, it must first be shown that the person who is alleged to have engaged in the victimisation knows of the protected conduct: Vidler v Queensland and Williams [2010] QCAT 579 at [10]. A causal connection will be established where the conduct complained of was a real, genuine or true reason for subjecting a person to a detriment: see discussion in Chi v Technical and Further Education Commission (No. 3) [2009] NSWADT 271 at [65]- [72]. Such an approach is consistent with the causal link required to be established in respect of allegations of direct discrimination under s.14 of the Act. > > The ordinary civil standard of proof applies in respect of the proof of victimisation claims. Proving a causal link can be difficult and in the absence of direct evidence of that link, a complainant often has to rely on the drawing of inferences. > > The question of whether a person has been subjected to or threatened to be subjected to a detriment is to be determined objectively and not subjectively. It is not sufficient for a complainant to allege they have suffered a consequence they describe as a detriment: "the loss, damage or injury suffered by a complainant must be something which a reasonable person would consider to be a detriment": Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41]. > > In this case, the protected conduct relied upon by the complainant is pursuant to s.18(1)(c), that is the complainant has alleged, or intends to allege, that any person has committed an act that would amount to a contravention of this Act. This provision has not been given particular attention in this jurisdiction. > > A similar provision under s.50(1) of the Anti-Discrimination Act 1977 (NSW) provides that it is unlawful for a person to subject another person to any detriment in any circumstances on the ground that the person victimised has alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act. This provision was considered by the NSW Court of Appeal in Chi v Technical and Further Education Commission [2012] NSWCA 421. Mr Chi was a student at TAFE who made various complaints concerning his treatment and the teaching he received. He made a number of complaints regarding those issues by letter including complaining of receiving unfair marks, suffering a long period of discrimination and harassment from his teacher and in turn his head teacher. At first, the Appeal Panel held that Mr Chi was obliged to prove that he had alleged or in effect intended to allege a breach of the Act and that his letter fell short of doing so. Mr Chi appealed. The Court of Appeal decision focused on the extent to which the complaint made by Mr Chi identified discrimination on the basis of race. In a combined assessment of the language used by Mr Chi in his complaint and the possibility of the conduct alleged amounting to discrimination on the basis of race, the Court of Appeal concluded that the complaints made did not allege acts of the kind referred to in s.50(1)(c) of the Act. > > Mr Chi sought special leave in the High Court. That application for special leave was refused on the basis that it did not raise any question of principle and turns substantially on what facts were communicated by the applicant in his complaint. The High Court determined that the email correspondence relied upon did not "overcome the absence of an allegation of racial discrimination": Chi v Technical Further Education Commission [2013] HCATrans 146. > > In Finch v Heat Group Pty Ltd [2010] VSCA 256, the Victorian Court of Appeal considered a claim made under s.97 of the now repealed Equal Opportunity Act 1995 (Vic) which provided as follows: > > 97(1) A person victimises another person if the person subjects or threatens to subject the other person to any detriment because the other person - > > .... > > (h) has alleged that any person has contravened a provision of Part 3, 5 and 6 unless the allegation is false and was not made in good faith...or because the person believes that the other person...has done or intends to do any of those things. > > (2) It is sufficient for sub-section (1)(f) if the allegation states the act or omission that would constitute the contravention without actually stating that this Act, or a provision of this Act, has been contravened." > > Ms Finch had complained about her treatment by her employers in an email, including complaining that she was questioned excessively about her maternity leave and how long she expected to take off time from work. She further stated that she felt she was being bullied and intimidated leading to stress and anxiety. She referenced that being pregnant was the happiest time of her life and a reason to be joyous - "I just wish to be treated equally, as are others and to continue to perform my role, without being caused undue stress...". The Tribunal had held that there was no evidence that the complainant had alleged or had intended to allege any contravention of the Act in her correspondence with her employer. It was argued on appeal that a fair reading of the email was that it contained allegations of contraventions of the Act or statements that show an intention to make such allegations. > > Despite the terms of s.97(2), the Court of Appeal endorsed the reasoning of the Victorian Civil and Administrative Tribunal stating at [10] that it was > > "faintly arguable that, on a fair reading, this email contains allegations of acts or omissions constituting contraventions of the Act. That is to say, it could perhaps be argued that Ms Finch was alleging that she had been discriminated against by reason of her pregnancy. On balance however, we do not think that is a reasonable construction of the email as a whole. [sic] > > The Court of Appeal did not accept that the Tribunal erred in law by holding that it was necessary that any allegation of contravention identified the attribute relied upon: at [18].

104. Obligation of organisations > > (1) An organisation is to ensure that -

(a) its members, officers, employees and agents are made aware of the discrimination and prohibited conduct to which this Act relates; and

(b) the terms of an order made under section 89 relating to that organisation are brought to the notice of those of its members, officers, employees and agents whose duties are such that they may engage in conduct of the kind to which the order relates; and

(c) no member, officer, employee or agent of the organisation engages in, repeats or continues such conduct.

(2) An organisation is to take reasonable steps to ensure that no member, officer, employee or agent of the organisation engages in discrimination or prohibited conduct.

(3) An organisation that does not comply with this section is liable for any contravention of this Act committed by any of its members, officers, employees and agents.

1. Section 104 of the ADA only becomes relevant in the event of a finding that the respondent has engaged in discrimination or prohibited conduct. If such a finding is made, the onus shifts to the respondent to prove that it has discharged its obligations to take reasonable steps and to ensure that its employees do not repeat the discrimination or prohibited conduct - see Maree Summers v Department of Education [2019] TASADT 8; Makkar v Australian Dispatch Company Pty Ltd [2020] TASADT 9.

1. The area of activity asserted by the complainant as applying to her complaint is that of the provision of facilities, goods and services as set out in s 22(1)(c) of the ADA.
2. There is no dispute that the circumstances in which the alleged discriminatory conduct occurred was within an area of activity being the operation of a commercial gymnasium and I so find.

1. My consideration of the evidence presented during the inquiry hearing leads me to the conclusion that the complainant has not discharged her onus of establishing to the requisite standard, on the balance of probabilities, that the respondent in its dealing with her in 2023 through her membership at the respondent has breached the complained of provisions of the ADA.
2. Although the complainant presented as an articulate individual who had clearly been involved in a difficult domestic violence situation, I am not persuaded that the evidence adduced during the inquiry provides the connection or nexus between the respondent's complained of conduct and the complainant's attribute of gender, her identifying as female.
3. It was clear to me that the complainant considered the respondent's decision to suspend, not cancel, her membership of LIFT on 10 August 2023 to be unfair to her. That is not enough for me to be satisfied the respondent's actions were undertaken because of her gender.
4. In Drummond v Telstra Corporation Limited (Anti-Discrimination) [2008] VCAT 2630 at [57] - [58] Deputy President McNamara stated:

... Most people in one form or another possess most of the attributes. It is a frequent experience in this list that people who feel they have been unjustly dealt with, whether in employment or other contexts, identify as what they see as unfair treatment in their possession of one or more attributes, leaping to the allegation then that they have been the victims of direct discrimination. > > If this mode of argument were acceptable every instance of unfair dismissal for instance would also be an instance of direct discrimination because every unjustly or allegedly unjustly dismissed employee possesses certain attributes. Logically no complaint of direct discrimination can be proven other than frivolous and lacking in substance unless to use the words of s 8(2)(b) of the Act, the attribute is a 'substantial reason' for the detrimental treatment.

5. In Evershed v The City of Geraldton (1995) EOC 92-745 at p. 78-564, it was stated:

In the absence of direct evidence, the complainant could use inferences drawn from the primary facts to establish the causal link between a person's characteristics and the alleged discrimination so that it appears that the discriminatory conduct occurred by reason of that characteristic. Discrimination however cannot be inferred "when more probable and innocent explanations are open on the evidence" (see for example Alone v The State Housing Commission HomeWest citing Finwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147.

6. Although the attribute is different, the nature of the complaint in this case is similar to that which was dealt with by the Tribunal in Costello v Tasmania Police [2012] TASADT 9. In that case the Tribunal said at [37]:

... The complainant asserts that he possesses certain attributes. In this case those relate to his sexual orientation and disabilities. He is, essentially, dissatisfied with his treatment at the hands of the respondent. He has formed the view that the basis of the respondent's conduct and decision making in this regard is based upon those attributes. At base he asks that an inference should be drawn that the Act has been transgressed because of the existence of an attribute and his dissatisfaction with the respondent's actions and decisions. There is no evidence to support that conclusion that there is any link between the two. The purpose of an inquiry is not to give the complainant an opportunity to "fish" for evidence that might provide the required nexus.

7. In the case of Kelly v Pensalfini [2019] TASSC 2, Porter AJ when considering direct discrimination at [34] observed:

... Questions of motive and intention may assist in the resolution of the question as to whether something was done on the ground of an attribute, but the question is - why was the aggrieved person treated as he or she was?

8. I accept the evidence of Mr Finch as to his reasoning for suspending the complainant's membership of LIFT on 10 August 2025 as not being because of the complainant's gender. I find that this decision was based on:
   • The complainant's breach of the gym's terms and conditions relating to her filming of JG without his consent or knowledge on 6 August 2023.
   • The complaints from EW about the complainant's attendances at the gym at times outside the agreements in the undertaking.
   • The evidence of at least two admitted, and possibly more, breaches by the complainant of the Magistrates Court undertaking with EW and of other inappropriate behaviours by the complainant being brought to his attention by other LIFT members, including some who were police officers.
   • The actions of the complainant's mother towards EW on 8 August 2023 noting the complainant's mother's evidence that she had joined the gym on 1 August 2023 to provide support and safety to the complainant.
   • The gym's desires not to become involved in the resolution of family violence or other issues between respective members of the gym, but rather to ensure the safety of all members of the gym, and if possible, to find solutions to accommodate all members' desires to continue to train at LIFT.
9. This latter matter was supported by the clear evidence of Finch that it was because of the complainant's behaviours that her membership was suspended - not cancelled, and that she did not take any action to seek an amelioration of the suspension essentially by providing an alternative training regime to avoid ongoing conflict or contact with JG and EW, but rather lodged the ADC complaint.
10. This evidence provides a more probable explanation for the complainant's suspension rather than because she was female.
11. The events occurring between 6 August 2023 and 10 August 2023, when considered collectively, were a reasonable basis for Mr Finch make his decision to suspend the complainant's gym membership.
12. The complainant attempted to discredit Mr Finch's evidence of his reliance on LIFT's terms and conditions of membership to base one of his reasons for the complainant's membership suspension, that being, the complainant's filming of JG in the gym on 6 August 2023. The complainant attempted to draw a comparison between her filming of JG at this time with EW's filming of MF involving the events occurring in the LIFT carpark on 8 August 2023, which the complainant asserted had not been actioned by LIFT.
13. I accept Mr Finch's evidence that these two events are dissimilar. The evidence was clear that the complainant deliberately and covertly filmed JG in the gym on 6 August 2023 to enable that footage to be utilised as evidence to support a complaint that JG had breached the PFVO between them. EW's filming of MF in the carpark on 6 August 2023 was, on the other hand, clearly undertaken out of EW's concern and uncertainty about what was about to happen to her when MF approached her in a clearly agitated state, and leaving her car in a position blocking any avenue of escape by EW.
14. I am emboldened in this finding, given the evidence of the complainant relating to an occurrence in the LIFT toilets in February 2023. This evidence was of the complainant following EW into those toilets with her mobile phone set to audio record, again to covertly record what was to transpire. I do not accept the complainant's evidence that this was not done intentionally nor that it was done for her own protection. The evidence was clear that the complainant was aware EW was in the toilet, and she went into that area with her telephone set to record so that she could record a conversation she had initiated with EW.
15. On all of the evidence, I do not consider the actions of Mr Finch in suspending the complainant's membership of LIFT on 10 August 2023 were unreasonable, based on an objective consideration of his reasoning, and the evidence provided which supported that decision. The complainant was not indirectly discriminated against by the respondent because of her attribute of gender.
16. Although the complainant may have been offended, humiliated, intimidated, insulted, or ridiculed by the decision to suspend her LIFT membership on 10 August 2023, this was not a decision based on her attribute of gender.
17. With regard to this aspect, it is also noteworthy that in her dealings with Mr Finch on 10 August 2023 when her LIFT membership was suspended, the complainant made no effort to approach Mr Finch to discuss or renegotiate different terms to enable her to continue to be a LIFT member before she initiated her complaint with the ADC.
18. Although her suspension may have caused a detriment to her, she had ample opportunity to potentially ameliorate the consequences of that suspension but chose not to.
19. With regard to the complainant's allegations that the respondent victimised her, there is no cogent evidence that at any time before the complaint of 6 September 2023 the respondent was aware that the complainant intended this course of action or was otherwise aware of it. Nor was there any evidence of any of the other protected conduct referred to in s 18 of the ADA.
20. I am not satisfied on all of the evidence that the respondent has victimised the complainant.
21. Having found that there has been no discrimination under the ADA by the respondent, following the approach adopted by the Tribunal in its decisions of Maree Summers v Department of Education [2019] TASADT 8 and Makkar v Australian Dispatch Company Pty Ltd [2020] TASADT 9, I do not need to consider the application of s 104 of the ADA.

1. Having found the complaint unsubstantiated, I also do not need to consider the orders sought by the complainant pursuant to s 89 of the ADA.

1. Pursuant to s 99(1) of the Anti-Discrimination Act 1998 the complainant's complaint against the respondent is dismissed.