Phillips v Andrews (Human Rights) [2018] VCAT 1714

1. The respondent's application dated 5 October 2018 for summary dismissal is refused.

1. The respondent, Mr Andrews, seeks an order that Mr Phillips' claim of unlawful discrimination be summarily dismissed. The order is sought pursuant to s 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), which provides that the Tribunal may make an order summarily dismissing or striking out all of a proceeding that, in its opinion, is frivolous, vexatious, misconceived or lacking in substance or otherwise an abuse of process.
2. Mr Andrews relies on two alternative grounds:
   • (a) that the conduct of Mr Andrews in denying Mr Phillips entry to the County Court of Victoria did not involve the provision of goods and services within the meaning of s 4 of the Equal Opportunity Act 2010 (Vic) (EO Act); and
   • (b) that Mr Andrews has a complete defence to Mr Phillips' claims because any discrimination (which Mr Andrews denies) was "necessary to comply with or authorised by a provision of" another Act, and thus permitted under s 75 of the EO Act.
3. Mr Andrews' application will be refused. In relation to the first ground, in the absence of evidence about the circumstances of Mr Phillips' denial of entry to the Court, I cannot be satisfied to the requisite degree that the nature of Mr Andrews' engagement with Mr Phillips did not involve the provision of 'services' by Mr Andrews. In relation to the second ground, in my view, the Acts relied on by Mr Andrews do not absolve Mr Andrews from discrimination of the kind alleged.
4. Before setting out my reasons, I wish to emphasise that my findings in this application should not be taken as suggesting that Mr Andrews' conduct was in any way discriminatory or otherwise in breach of the EO Act, or in fact amounted to the giving of services. Those matters can only be finally determined once both Mr Phillips and Mr Andrews have had an opportunity to adduce evidence about what occurred when Mr Phillips attended the County Court of Victoria on 19 March 2018, and any other relevant matters.

1. I have been greatly assisted in considering this application by the thorough written submissions filed and served by Ms Richardson on behalf of Mr Andrews. I have borrowed liberally from those submissions in these reasons, particularly in relation to the background to this application and the law relating to applications for summary dismissal.
2. Mr Phillips' application is dated 9 May 2018 and relevantly asserts:

I have been unfairly discriminated against as Lee Andrews refused to allow entry for my assistance animals. On 19 March 2018 Lee Andrews as the apparent senior Protective Services Officer would not allow Rishi and Goethe entry to the County Court of Victoria despite my having a hearing. he [sic] is mental illness blind.

1. Mr Andrews submits, and I agree, that the basis of Mr Phillips' claim appears to be that, in relation to the alleged incident at the County Court of Victoria on 19 March 2018, Mr Andrews:
   • (a) subjected Mr Phillips to discrimination in the provision of goods and services, contrary to s 44 of the EO Act; and
   • (b) failed to make reasonable adjustments for Mr Phillips in the provision of 'services', contrary to s 45 of the EO Act.
2. At a directions hearing on 29 August 2018, I requested that the legal representative for Mr Andrews, and the legal representative for the respondent in a related proceeding (H197/2018), provide Mr Phillips with a short summary of the information generally required in particulars of claim. This occurred by way of correspondence dated 29 August 2018 and 30 August 2018 respectively.
3. Despite this and despite being given an extension of time to file particulars of claim, Mr Phillips has so far failed to provide any meaningful statement of the background and details of his claim. I propose to make orders shortly in both proceedings to address these deficiencies in the proceedings and bring both matters to a final hearing at the earliest available dates.
4. In the meantime, for the purposes of this application, Mr Andrews accepts that Mr Phillips has a disability in the relevant sense and that he prevented Mr Phillips from entering the County Court of Victoria with two un-muzzled German Shepherd dogs (the dogs). He says that he did so:
   • (a) in the performance of his law enforcement duties under the Victoria Police Act 2013 (Vic) (VP Act) and the Court Security Act 1980 (Vic) (Court Security Act); and
   • (b) in circumstances in which the Applicant was unable to produce any satisfactory evidence demonstrating that the dogs were assistance animals within the meaning of the Disability Discrimination Act 1992 (Cth) (DDA).
5. Mr Andrews notes that, although he does not accept that the dogs are assistance animals within the meaning of the DDA, his application for summary dismissal does not turn on whether or not this is so.

Principles on applications for summary dismissal

1. As Mr Andrews has submitted, the principles concerning applications for summary dismissal pursuant to s 75 of the VCAT Act are well established.[1] In Norman v Australian Red Cross Society, the Tribunal stated:

For a summary dismissal application to succeed, the proceeding must be obviously hopeless, obviously unsustainable in fact or law, or can on no reasonable view justify relief. This will include, but is not limited to, a case where the Respondent can show a defence sufficient to warrant the summary termination of the proceeding.[2]

(T)he power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.[3]

1. A proceeding is 'misconceived' if it involves a 'misunderstanding of legal principle' and is "lacking in substance" or if it is based on an 'untenable proposition of law or fact'.[4] Notably, however, the Tribunal should not order summary dismissal in circumstances where the outcome of the case might depend upon findings of fact based on contested evidence.[5]
2. Mr Andrews accepted that the bar for summary dismissal under s 75 of the VCAT Act is high.

1. As set out above, it appears that the basis of Mr Phillips' claim are ss 44 and 45 of the EO Act. Section 44 relevantly provides that a person must not discriminate against another person:
   • (a) by refusing to provide goods or services to the other person; or
   • (b) in the terms on which goods or services are provided to the other person; or
   • (c) by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her.
2. Section 45 requires a service to make reasonable adjustments in the provision of a 'service' to people with disabilities.
3. Section 4 of the EO Act defines 'services' to include, 'without limiting the generality of the word', relevantly:

(a) access to and use of any place that members of the public are permitted to enter;

(f) services provided by a government department, public authority, State owned enterprise or municipal council.

1. Mr Andrews is a Protective Services Officer (PSO) appointed by the Chief Commissioner of Police.[6] As a PSO, he is a 'sworn' member of Victoria Police who has taken an oath of office under s 50 of the VP Act. The functions of a PSO are set out in s 37 of the VP Act. This section provides:

The functions of a protective services officer are to provide services for the protection of -

(a) persons holding certain official or public offices;

1. PSOs who have taken the oath of service have, in the performance of their statutory functions, the same 'duties and functions of a constable at common law'.[7]

1. Mr Andrews submits that he was, at all relevant times, performing law enforcement duties and functions under the VP Act in providing for the protection of persons holding certain official or public offices (namely, Judges of the County Court of Victoria) and certain places of public importance (namely, the County Court of Victoria). He further submits that, taking the alleged conduct at its highest, it is not and cannot properly be characterised as 'services' provided to Mr Phillips by him.
2. Mr Andrews relies primarily on three recent decisions of the Tribunal, namely:
   • (a) Kyriakidis v State of Victoria (Human Rights List) [2014] VCAT 1039 (Kyriakidis);
   • (b) Djime v Kearnes (Human Rights) [2015] VCAT 941 (Djime); and
   • (c) Whittingham v Yeo (Human Rights) [2016] VCAT 2096 (Whittingham).

1. Mr Kyriakidis had been arrested by police and taken to the Moonee Ponds Police Station. He alleged that he was unwell at the time and had been held in police custody and interviewed for some hours without any medical or other attention. His complaint was that he was subjected to discrimination by a member of Victoria Police on the basis of his disability in the provision of 'services'. Mr Kyriakidis sought to characterise his arrest and interview, among other things, as 'services' within the meaning of the then Equal Opportunity Act 1995 (which was in the same terms as the current EO Act).
2. The Tribunal rejected Mr Kyriakidis' characterisation of these activities as 'services':

In the present case, in light of the above authorities, it is not possible to construe the activities complained of by the applicant as "services" being provided to him, and I respectfully agree with the conclusions on this point in these cases. However, even approaching the term "services" in its everyday meaning, it does not seem possible to characterise police activities, as complained of by the applicant as fitting into this definition, even as they may be services to the community at large.[8]

1. Member Duggan applied Rainsford v Victoria (Rainsford)[9], in which the Federal Court found that, in determining whether a particular act was a 'service', the relevant question was whether the act involves 'helpful or beneficial activity' to the relevant class of persons to which the person alleging discrimination belongs.[10]
2. On the other hand, referring to authorities relying on Farah v Commissioner of Police of the Metropolis,[11] (in which the police were found to have discriminated in their provision of 'services' to Ms Farah, who was a victim of crime) the Member noted that there may be circumstances in which the police do provide 'services' in the relevant sense. This includes where the person is entitled to protection by police.

1. Mr Djime alleged that members of Victoria Police had subjected him to numerous instances of racial discrimination in their dealings with him, including by stopping and questioning him at a railway station, allegedly removing him from the premises after he refused to leave, and in relation to a search that members of Victoria Police had conducted of Mr Djime's store.[12]
2. The respondents applied formost of the allegations to be summarily dismissed on various bases, including that the conduct alleged did not constitute the provision of services within the meaning of the EO Act. The respondents acknowledged that some of the allegations should go to a full hearing. Following a thorough and comprehensive review of the authorities, Member Dea determined to dismiss 21 of the 27 allegations.
3. Member Dea's reasons include a distillation of the applicable principles, which, she introduces as follows:

Although many of the decisions discussed above are not binding on this tribunal, I consider they are persuasive. I have considered whether a service within the meaning of the EO Act is provided in the course of dealings between an applicant and police having regard to the following summary of general principles.[13]

1. I agree, with respect, that the decisions discussed by Member Dea, while not binding, are persuasive. And as I can neither usefully add to nor improve the learned Member's summary, I set it out in full, adding emphasis to passages of particular relevance in this case:
   • Conduct which is helpful or beneficial for the individual is likely to be a service where it is consistent with the interests or welfare of the individual;
   • The fact that the conduct might arise in the exercise of a statutory power or in the performance of a statutory duty might assist in identifying the nature of the conduct and whether it falls within the meaning of a service but those matters are not determinative;
   • There is a distinction to be drawn between the services police provide to the community at large when undertaking duties such as preventing criminal conduct and an arresting officer's dealings with an alleged offender;
   • Police functions which are associated with the prevention and detection of crime when they intervene in situations where there is a disturbance of the peace or where an offence has been, or may be, committed are services provided to the public at large and individuals who may suffer injury or harm are likely to be services under the EO Act. In those circumstances, the service might include other functions such as protecting persons from injury or death and restoring and maintaining peace and good order;
   • Police provide a service when they respond to a specific request for assistance, such as when an emergency call is made. When police attend following a request for assistance, a service may be provided to a person who is being asked to leave or move on or take some other action which is intended to defuse the circumstances which led to the police attendance rather than because it is suspected that an offence has been committed;
   • Depending on the particular circumstances, after an alleged offender has been arrested and passed into police custody, police may have a public duty to provide services by way of protecting the person from injury or death and protecting property from damage;
   • Services are not provided when police investigate an alleged offence, question an alleged offender, arrest an alleged offender, deal with a bail application, decide whether or not to lay charges, decide whether or not to prosecute charges and decide how a matter will proceed in court;
   • Services are not provided when police serve summonses and execute search warrants and take other steps in respect of the laying of charges and their prosecution;
   • During the course of dealing with a situation or event, police may at some points in time provide a service to an individual but the conduct may cease to be a service. That might occur if police: take action to investigate a possible offence; deal with an alleged offender; deal with other unlawful conduct; act to enforce the law; or otherwise intervene to maintain peace and order; and
   • Whether in particular circumstances a service is being offered will require consideration of the conduct of police within the particular factual context.

1. Mr Whittingham complained that Victoria Police had subjected him to unlawful discrimination in the provision of goods and services by, among other things, investigating him and prosecuting him in relation to various charges of obtaining financial advantage by deception. Mr Whittingham claimed that he had been subjected to discrimination on grounds of marital status and sex, because his proffered defence for the criminal charges (adopting his wife's name) was not accepted by police.
2. Mr Andrews submitted that, in striking out the claim, the Tribunal in Whittingham accepted that:

(a) a 'service' must confer a benefit or advantage on the complainant;[14]

(b) conduct taken to uphold the law are not 'services' provided to an alleged perpetrator of the crime.[15]

1. He further submitted that, like Kyriakidis, Djime, Whittingham and Rainsford, in preventing Mr Phillips from entering the County Court of Victoria with his dogs, Mr Andrews did not confer any type of benefit or advantage upon Mr Phillips. He continued:

Self-evidently, preventing the Applicant from entering the County Court with the dogs was not a 'service' the Respondent provided to the Applicant insofar as no benefit or advantage was conferred upon him. To the extent that any 'service' was provided, it was provided to the community at large, in ensuring public safety and preserving the peace.

1. In my view, analysing the conduct solely from the perspective of whether it confers a benefit or advantage, is too simplistic and overlooks the inherently dynamic and shifting nature of human interaction. Clearly, as Member Dea in Djime observed, conduct which is helpful or beneficial for the individual is likely to be a service where it is consistent with the interests or welfare of the individual. But it does not follow that conduct that is not helpful and beneficial cannot be part of a broader interaction that amounts to the provision of 'services' within the meaning of the EO Act. In my judgment, none of Kyriakidis, Djime, Whittingham and Rainsford say otherwise.
2. For example, a refusal to provide a service could hardly be described as 'helpful or beneficial', but has long been recognised as amenable to legislation proscribing discrimination in the provision of services. The NSW Court of Appeal recognised this in Commissioner of Police v Mohammed, in finding that:

[T]here is no difficulty in identifying police services, for the purposes of s 19 of the Anti-Discrimination Act, by reference to the services actually provided (or refused) to the complainant or those on whose behalf she complains. Indeed, the fact that an authority is required to provide a public service implies that the service is to be provided without discrimination across all sectors of the community. To withdraw such a service from a particular group on the basis of a characteristic protected under human rights law is not to default on any obligation to the public at large, but in relation to members of that group. There is no reason why members who suffer individually as a result of such conduct should not have a basis for complaint under appropriate legislation, including the Anti-Discrimination Act.[16]

1. In her summary in Djime above, Member Dea referred to when a service may be provided to a person who is being asked to leave or move on or take some other action which is intended to defuse the circumstances. Again, being asked to leave or move on, is unlikely to be beneficial to the individual who is the subject of the request. This proposition in Member Dea's summary relied in part on the decision of the NSW Administrative Decisions Tribunal in Whitfield v State of NSW (NSW Police Force) [2011] NSWADT 265, and the appeal from that decision in State of NSW (NSW Police Force) v Whitfield [2012] NSWADTAP 27.
2. In that case, police had been called to retirement village to deal with a disturbance involving Mr Whitfield, who was a resident under a share arrangement with the lessee of a unit. Mr Whitfield alleged that the police officer responding to the disturbance demanded that he move out. In accepting that it was open to the Tribunal to conclude that the officer was engaged in the provision of a service, the Appeal Panel held:

In these circumstances, we do not consider that a strict distinction should be drawn as between the people seeking assistance, the person said to be the cause of trouble, and others with an interest. In cases of this kind, in our view it is reasonable to regard all affected as recipients of services though the exact nature of the service rendered may vary between them.[17]

1. Similarly, Member Dea referred in her summary to cases involving circumstances where, during the course of dealing with a situation or event, police may at some points in time provide a service to an individual, but the conduct may cease to be a service. The case before the Member provided a useful example.
2. Mr Djime made a total of seven discrete allegations arising from events which the learned Member summarised under the heading 'The lease dispute - 18 September 2013'. In commencing her analysis of question of whether the circumstances involved the provision of a service, the Member stated:

There is no dispute that both Mr Djime and Mr A Besanko called for the police to attend the premises and that, when they first attended, the police officers were speaking with the people present to understand what was occurring. That is all conduct consistent with the provision of a service to Mr Djime and others.[18]

1. After summarising the arguments on both sides, the Member held that:

While I accept that the dealings between the police and Mr Djime up until he was asked to leave the premises might amount to a service and ought to be the subject of a full hearing, the events that follow that point in time cannot be characterised as falling within the meaning of a service under the EO Act. While up to that point in time it might be said that the police were trying to restore the peace and status quo by having Mr Djime leave the premises so the matter could be discussed outside, once the spray was produced and Mr Djime perceived he was to be restrained and possibly arrested, he could not be said to have been receiving a service.[19]

1. Turning to the circumstances of this case, in my view based on the discussion in the authorities referred to above, there can be no doubt that a person in the position of Mr Andrews in engaging with members of the public seeking to enter to County Court of Victoria, will from time to time be providing a service within the meaning of the EO Act. Indeed, s37 of the VP Act set out above, expressly provides that one of the functions of a PSO is to 'provide services for the protection of...the general public in certain places' (emphasis added).
2. Mr Andrews' presence at the court is thus in pursuance of (among other things) his function of 'providing services for the protection of...the general public in certain places' under s 37 of the VP Act. And at the point of his approach to the entry of the County Court of Victoria with his dogs, Mr Phillips is a member of the public. Further, in making the approach, Mr Phillips is seeking 'access to and the use of [a] place that members of the public are permitted to enter'.[20] In that sense, at least at the point of entry, Mr Phillips expectation of being given a service within the meaning of the EO Act, coincided with Mr Andrews function of providing a service to members of the general public under s 37 of the VP Act.
3. The effect of Mr Andrews' argument is that, regardless of how the engagement of Mr Phillips and Mr Andrews then unfolded, I can be satisfied that Mr Andrews was at no time providing a service to Mr Phillips within the meaning of the EO Act. In my view, in the absence of any evidence about these matters, I cannot be so satisfied.
4. For example, there could have been aspects of Mr Andrews' request of Mr Phillips for evidence demonstrating that the dogs were assistance animals, that were arguably part of the provision of services by Mr Andrews facilitating Mr Phillips' entry to the court. Similarly, depending on the point at which Mr Phillips was directed to leave or not enter the court, it may be open to Mr Phillips to argue that the direction amounted to a refusal to provide a service, analogous to the circumstances in Commissioner of Police v Mohammed.[21]
5. As Member Dea said in Djime, whether in particular circumstances a service is being offered will require consideration of the conduct of police (or, in this case, Mr Andrews) within the particular factual context. Here, the factual context is entirely absent. Further, as Mr Andrews accepts, the bar for summary dismissal under s 75 of the VCAT Act is high. In those circumstances, and without evidence of the factual context, Mr Andrews' application for summary dismissal on this first ground must fail.

Complete defence - Mr Andrews had statutory authority

1. Mr Andrews denies that he discriminated against Mr Phillips. Mr Andrews submits that, notwithstanding that denial, a further basis upon which the Mr Phillips' application ought be struck out arises under s 75 of the EO Act, which provides a complete defence to discrimination where the discrimination 'is necessary to comply with, or is authorised by', a provision of an Act. In this regard, Mr Andrews relies on both the VP Act and the Court Security Act as authorising him to act as he did.
2. Section 75 of the EO Act says:

(1) A person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of:

(b) an enactment, other than an enactment under this Act.

(2) For the purpose of subsection (1), it is not necessary that the provision refer to discrimination, as long as it authorises or necessitates the relevant conduct that would otherwise constitute discrimination.

(3) Sections 50(3) and 63(1) prevail over this section to the extent of any inconsistency between them.

1. Section 13(1) of the EO Act provides that discrimination is not prohibited if a general exception, such as s75, applies. Section 13(2) says that such an exception is a defence to discrimination, and the person seeking to rely on the exception has the burden of proving that it applies.
2. In relation to the VP Act, Mr Andrews argues that, in preventing the dogs from entering the County Court of Victoria, the Respondent was performing his duty as a PSO under s 37 of the VP Act to:
   • (a) preserve the peace; and/or
   • (b) provide for the protection of public officers, being Judges of the County Court of Victoria; and/or
   • (c) provide for the protection of a place of public importance, being the County Court of Victoria.
3. In relation to the Court Security Act, Mr Andrews points to the fact that he is an authorized officer' within the meaning of the Court Security Act and that, under s 3 of that Act, authorized officers may:
   • (a) give to a person who wishes to enter court premises, or is on the court premises, a reasonable direction to do or not do a thing for the purpose of maintaining or restoring the security, good order or management of the court premises (s 3(2A)(a));
   • (b) escort a person to or from court premises if that person has consented to being escorted by the authorized officer (s 3(2A)(b));
   • (c) in the course of escorting a person to or from court premises, give a reasonable direction to another person to do or not do a thing, for the purpose of maintaining the safety of the person or the authorized officer (s 3(2A)(c)). Persons subject to directions must comply with that direction (s 3(2B));
   • (d) use reasonable force to, among other things:
     1. enforce a direction given to the person under subsection (2A) (s 3(4)(b));
     2. prohibit a person from entering, or remove a person from, court premises under sub-section (5) or (9) (s 3(4)(c));
   • (e) remove the person from the court premises if, when asked, a person does not submit to a demand under sub-section (1), comply with a direction under sub-section (2A) or a requirement under sub-section (3), prohibit the person from entering the court premises, or if the person is on the court premises (s 3(5));
   • (f) refuse a person entry to the court premises or remove a person from the court premises if the authorized person believes on reasonable grounds that the person is likely to affect adversely the security, good order or management of the court premises (s 3(9)).
4. In my view, Mr Andrews' reliance on these provisions is misconceived. It in substance amounts to arguing that, wherever a person is acting pursuant to a statutory authority, they are absolved from compliance with the EO Act. That is not the proper construction of s 75 of the EO Act, whether viewed through the lens of the s 32 of the Charter[22] or based on general principles of statutory construction.
5. As the authorities on which Mr Andrews purports to rely make clear, it is not enough merely to show that the conduct complained of was performed pursuant to a statutory power. Conduct is excepted only if the discrimination is required, or permitted expressly, or by necessary implication, by a statute. That is, the conduct must not only be permitted by the other Act, it must be (either expressly or by necessary implication) permitted to discriminate.
6. Judge Ginnane (as he then was) considered the scope of s 75 of the EO Act in Aitken & Ors v The State of Victoria - Department of Education & Early Childhood Development.[23] His Honour held (emphasis added):

"As previously noted, equal opportunity and discrimination legislation are beneficial legislation. Construing exceptions, or exemptions contained in them narrowly, may promote their purpose. However, that is not always the case. The purpose of exceptions in such legislation varies. They may have been included to provide the practical balance between competing public interests. They may, for instance, except conduct from the prohibitions contained in the legislation, in order to protect other important human rights that the equal opportunity, or discrimination legislation does not address or protect. In such circumstances, it would not be appropriate to read the exceptions narrowly. Rather both the principal enactment and the exception to it, should, in those circumstances, be given their ordinary meanings.

The statutory authority exceptions in the Equal Opportunity Acts serve a different purpose than the exceptions I have discussed in the previous paragraph. They reflect the power of Parliament to legislate so as to authorise conduct that is discriminatory. However, the common law principles of statutory interpretation require a clear expression of intent to interfere with human rights. Section 32(1) of the Charter adds to the strength of that common law principle.

The word "authorise" means to give authority or legal power to; to empower (to do something); to give authority for; formally sanction an act or proceeding.

The Tribunal, and its predecessors, have consistently adopted the interpretation of the statutory authority exception described in Wojcik v Roads Corporation, i.e. that the conduct is excepted if required, or permitted expressly, or by necessary implication by a statute.

The ordinary meaning of the statutory authority exception in the Equal Opportunity Acts extends to conduct permitted by an Act. Section 32(1) of the Charter, which is applicable to conduct after 1 January 2008, does not require that that ordinary meaning be departed from. Conduct expressly permitted by a statute is within the ordinary meaning of the exception. The express permission of conduct must also include within the permission, conduct necessary to enable the permitted conduct to occur."[24]

1. Thus, in Kuyken v Chief Commissioner of Police,[25] Garde J affirmed the decision of the Tribunal[26] in which Member Grainger held that s 75 of the EO Act permitted the Chief Commissioner of Police to impose grooming standards on sworn members that, for male members, included the banning of goatees. The relevant Act[27] gave the Chief Commissioner the power to determine standards of grooming that may "differ based on sex, gender identity, physical features or religious belief or activity".
2. And in Rein v Australian Health Practitioner Regulation Agency (Human Rights) [2016] VCAT 1065, Member Dea determined that s 75 of the EO Act permitted the Nursing and Midwifery Board of Australia to refuse to register the applicant as a nurse, because of a disability (a mental disease or disorder) that the Board presumed she had. In that case, the relevant Act[28] expressly empowered the Board to decide that a person was not suitable for registration based on its assessment of how the person's impairment would affect the person's capacity to practice safely.
3. In my view, there is nothing in the provisions of either the VP Act or the Court Security Act that either expressly or by necessary implication, permits Mr Andrews to discriminate contrary to the EO Act, in the exercise of the powers conferred by those Acts set out above. Mr Andrews does not point to any such provision, beyond identifying the source of the power. Accordingly, Mr Andrews' application for summary dismissal on this second ground must also fail.

[1] See, for example, State Electricity Commission of Victoria v Rabel (1998) 2 VR 102; Norman v Australian Red Cross Society (1998) 14 VAR 243

[2] Norman v Australian Red Cross Society (1998) 14 VAR 243, 247 - 248

[3] Fancourt v Mercantile Credits Ltd (1983) HCA 25; (1983) 154 CLR 87, 99

[4] Pizza Fellas v Eat Now Pty Ltd [2017] VCAT 692 [18]

[5] Chan v Kostakis [2003] VCAT 951 [9]; Owners Corporation v Hickory Group Pty Ltd [2015] VCAT 1683 [12]

[6] Victoria Police Act 2013 (Vic) s 38

[7] Victoria Police Act 2013 (Vic) s 52(1)

[8] Kyriakidis v State of Victoria [2014] VCAT 1039 at [21]

[9] [2007] FCA 1059; (2007) 167 FCR 1

[10] Rainsford v Victoria [2007] FCA 1059; (2007) 167 FCR 1, 17 [73]; Kyriakidis v State of Victoria [2014] VCAT 1039 at [19]

[11] [1998] QB 65

[12] Djime v Kearnes (Human Rights) [2015] VCAT 941

[14] Whittingham v Yeo (Human Rights) [2016] VCAT 2096 at [66]

[15] Whittingham v Yeo (Human Rights) [2016] VCAT 2096 at [67]

[16] Commissioner of Police v Mohamed [2009] NSWCA 432 at [35]- [36]

[17] State of NSW (NSW Police Force) v Whitfield [2012] NSWADTAP 27 at [45]

[20] Definition of 'services in s 4 of the EO Act

[21] Commissioner of Police v Mohamed [2009] NSWCA 432

[22] Charter of Human Rights and Responsibilities Act 2006 (Vic); see the discussion in Rein v Australian Health Practitioner Regulation Agency (Human Rights) [2016] VCAT 1065 at [17]- [22]

[23] [2012] VCAT 1547

[24] At paragraphs [539] - [543] - citations omitted

[25] [2015] VSC 204 at [75]- [78]

[26] Kuyken v Lay (Human Rights) [2013] VCAT 1972

[27] Police Regulation Act 1958 (Vic)

[28] Health Practitioner National Law (Victoria) Act 2009 (Vic)