Shari v Chief Commissioner of Victoria Police (Human Rights) [2025] VCAT 443

Under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the application is dismissed.

1. In January 2024, Kevin Shari made two applications to the Human Rights List at VCAT, alleging that the respondent, initially an individual police officer and then Victoria Police, had discriminated against him, authorised or assisted discrimination and victimised him in the area of local government and on the basis of his race, gender or gender identity. The second application included claims of racial and religious vilification. These two applications were consolidated into the one before me now.
2. At a directions hearing at VCAT on 5 March 2024, Mr Shari sought to amend his application and an order was made on that day as follows:

The references in the application form to racial and religious vilification and to authorising and assisting discrimination are withdrawn, as requested by the applicant at the hearing.

1. The claims in the application related to charges that were heard in the Magistrates' Court on 13 June 2023. In 2022, a Final Personal Safety Intervention Order (PSIO) had been made, which prohibited the applicant from sending emails about a former coworker to her workplace or causing another person to do so. The hearing on 13 June 2023 was about two charges that Mr Shari had contravened the order. According to the respondent's record of events,[1] Mr Shari pleaded guilty to one charge, and the Magistrate adjourned the hearing without conviction on Mr Shari undertaking to be of good behaviour. The other charge was withdrawn.
2. Later in 2023, Mr Shari alleged that his former coworker and a police officer and others had committed perjury. He commenced proceedings in the County Court about what he alleged was the failure of Victoria Police to investigate complaints he had made about his former coworker, the granting of the PSIO and the conduct of the criminal proceedings for contravention of the PSIO. Mr Shari sought to have the court investigate the actions of the police officer and 'hold him accountable for his negligence, defamation and perjury for the unfounded accusation on my criminal record and appropriate compensation for the damages incurred'.[2] Ultimately, the Court set aside the orders of the Magistrate and the charge against Mr Shari was dismissed. No other orders were made.
3. Mr Shari made a complaint to Victoria Police, seeking to have a charge or charges of perjury brought against the officer who had given evidence in the County Court proceedings, and against his former coworker. In various documents Mr Shari set out the basis of his claim, which was essentially that Victoria Police (an officer or officers) failed to adequately investigate his allegations of perjury.
4. In his particulars of claim, provided to VCAT and the respondent on 11 July 2024, Mr Shari claimed that:
   • Under section 24 of the Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act) the respondent had refused or failed to provide services to him on the basis of his race, colour, or national or ethnic origin; and
   • Under section 27 of the Racial Discrimination Act the respondent had unlawfully threatened to cause detriment to him.
5. I note here that these do not appear to be the correct sections of the Racial Discrimination Act, but in any case this Tribunal does not have any jurisdiction under this Act, which is a law of the Commonwealth of Australia.
6. In the Incident Summary set out in the particulars of claim, Mr Shari summarised the issues as being 'display of unprofessionalism, ignorance of complaint details, dismissive attitude towards perjury concerns, intimidating and disrespectful behaviour'; 'lying, victim-blaming, aggressive behaviour and use of inappropriate room for the meeting'; 'lack of proper set up for conducting official interviews, absence of witnesses during the interview.'
7. Mr Shari described the damages he sought as being 'compensation for physical and psychological injuries, medical expenses, loss of income, and pain and suffering' because of 'misconduct and negligence [on the part of the respondent] in handling the complaint'.
8. In his particulars of claim, Mr Shari amended the area in which he says that the discrimination occurred to that of goods and services, rather than local government.
9. In later documents, filed in response to the respondent's application under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), Mr Shari wrote that:

While the Applicant refers to the Racial Discrimination Act 1975 (Cth) which the Tribunal cannot adjudicate, it is crucial that VCAT considers the application under the Equal Opportunity Act 2010. This Act protects individuals from discrimination and victimisation on the grounds of race, among other attributes. The Applicant has identified a clear connection between his treatment and racial discrimination, including an incident where Constable Webster allegedly made racist remarks towards him.

The Applicant alleges that Constable Webster committed perjury, and the failure to properly investigate these claims is indicative of systemic issues, potentially rooted in racial bias. The Applicant's case involved significant concerns about police misconduct and the failure of the justice system to address his grievances adequately, specifically relating to race post discrimination. This is compounded by Webster's alleged racist comments, which are part of the broader pattern of mistreatment.

...The Applicant alleges that Constable Webster's actions were racially motivated, with Webster making explicit racist comments during interactions with the Applicant ... It is crucial that VCAT considers whether these actions, combined with the lack of proper investigation into perjury claims, amount to racial discrimination under the Equal Opportunity Act.[3]

1. In a further document Mr Shari wrote, in part, that:

I was subjected to racial abuse by Officer Webster, who referred to me as a "brown bastard" and stated he would "teach me a lesson". This behaviour, along with Officer Webster submitting false evidence that was uninvestigated, resulted in wrongful charges being brought against me. These actions were not adequately questioned or investigated by his superiors, demonstrating a systemic failure within Victoria Police to uphold integrity and address misconduct...

In addition, Sergeant Amos of the Port Phillip Division failed to provide appropriate documentation and refused to properly investigate my case...

The interview room I was placed in was not a proper police interview room but rather a room intended for children. No officers were present to oversee the interview and I was subjected to inappropriate language...

These actions reflect a continued disregard for professional conduct and accountability within the police force...[4]

1. In an email dated 23 January 2025, Mr Shari outlined his concerns as follows:

Racial Discrimination: Officer Webster made prejudiced and racist remarks towards me during our interaction. It is my understanding that this officer may have made similar remarks towards migrants in the past, which raises concerns about a pattern of discriminatory behaviour.

Denial of legal representation: I was not allowed to speak with a lawyer, despite my request. This was a clear violation of my rights and was witnessed by other officers present at the scene.

False evidence submission: Officer Webster submitted evidence against me, which was later dismissed by the judge, indicating that the evidence was false and misrepresented.

1. I have set out Mr Shari's claims in some detail, as I want it to be clear to him that I have considered all the documents he has provided. His submission provided on 12 November 2024 shows that he now understood that VCAT has no jurisdiction under the Racial Discrimination Act which was the basis of the claim he set out in his particulars of claim, and he was asking VCAT to disregard the fact that he set out his claim under the Racial Discrimination Act, and to now accept it as being a claim made under the Equal Opportunity Act 2010 (Vic) (EO Act). I understand and accept this.
2. The respondent applied under section 75 of the VCAT Act for Mr Shari's application to be summarily (without a full hearing) struck out or dismissed on the basis that it is misconceived and lacking in substance.
3. This application was first heard on 28 November 2024. Mr Shari was not at the hearing. VCAT made orders striking out his claims. Mr Shari applied under section 120 of the VCAT Act for the hearing to be reopened and the order to be reviewed. He had asked to be permitted to attend the 28 November 2024 hearing by videoconference, for unforeseen reasons. He said that he did not receive the link for the videoconference. The VCAT file demonstrates that VCAT did in fact send the link for attendance by videoconference to Mr Shari on 26 November 2024. Even so, I accepted Mr Shari's evidence that he did not receive the link. I granted the application to re-open under section 120 of the VCAT Act, and reheard the respondent's application, allowing, at the end of the hearing, time for each party to make further written submissions. I ordered, with consent of the parties, that I would make a decision about the section 75 application in writing, based on the hearing on 11 February 2025 and subsequent written submissions.

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) is otherwise an abuse of process.

1. In deciding applications under section 75, VCAT must be cautious. It is a serious matter to dismiss or strike out a proceeding summarily. A high threshold must be met before VCAT can summarily dismiss or strike out all or part of a proceeding.[5]
2. VCAT should only summarily dismiss or strike out a proceeding, or a part of a proceeding, where it is obvious that the proceeding cannot succeed or where it is obvious that the proceeding is an abuse of process for other reasons. Otherwise, an applicant is entitled to have the case fully heard and determined at a final hearing. It must be very clear that the proceeding is so clearly untenable that it cannot possibly succeed.[6]
3. When determining an application under section 75 of the VCAT Act, VCAT's role is not to examine the evidence, but to proceed on the basis that the applicant will be able to prove every fact alleged. VCAT should not summarily dismiss an application where the outcome depends on findings of fact based on contested evidence.[7]
4. Deficiencies in an applicant's particulars of claim are generally not a reason to strike out the claim or the particulars entirely.[8]

The respondent's submissions in support of the application under section 75 of the VCAT Act

1. Counsel for the respondent made submissions in support of the application for strike out or dismissal, both orally and in writing. In summary, they were as follows:
   • VCAT does not have jurisdiction to determine the application under the Racial Discrimination Act;
   • The conduct alleged is not victimisation within the meaning of section 104 of the EO Act;
   • The conduct alleged is not discrimination under the EO Act because the alleged failure to adequately investigate allegations of perjury does not relate to services. The respondent referred to cases in which VCAT had held that police, when deciding whether or not to investigate a matter or issue charges, are not providing a service;
   • Even if the applicant could establish discrimination (which was denied by the respondent) the conduct of police investigations is protected by the defence of statutory authority as set out in section 75 of the EO Act; and
   • There are no facts alleged that could establish a causal link between the claimed attributes and the alleged conduct. That is, there are no facts alleged that could make out a case that the decisions taken by the respondent were taken because of the applicant's race or gender.

1. Mr Shari's submissions in response were sent to VCAT and the respondent on 17 February 2025 and were entitled: 'How the Conduct Meets the Legal Test for Racial Vilification Under Section 7 of the Equal Opportunity Act 2010 (Vic)'.
2. Mr Shari submitted that one police officer called him a 'brown bastard', and another said: 'You f**ing brown immigrants should go back to your own country_'_, both in a public setting, being a police station. He said that both comments were made in the course of police duties, and the officers' positions amplified the harmful impact of the comments. He said that the comments directly targeted the applicant based on his race, and 'were designed to provoke hatred, serious contempt, revulsion and severe ridicule.'
3. Mr Shari further submitted that the respondent's failure to investigate these incidents exacerbated the severity of the vilification. The respondent's failure to investigate his complaint about perjury demonstrated systemic neglect of his rights.
4. Mr Shari set out what had been the impact on him of the vilification and the misconduct of the police in failing to investigate that and his complaints of perjury. He said that he had experienced significant ongoing emotional distress, as well as lost job opportunities, and that his trust in the legal system had been profoundly eroded, leaving him feeling betrayed and fearful of future interactions. He said that:

Given the gravity of the suffering endured by the Applicant and the institutional failure to address the racial vilification, VCAT must intervene to provide justice and ensure that the responsible officers and institution are held accountable.

1. The respondent replied that the claim of racial vilification, made by the applicant in his submissions in response to the respondent's application, amounted to a new claim. There was no reference to racial vilification in the particulars of claim. The applicant amended his application at the directions hearing on 5 March 2024 to remove any reference to racial or religious vilification. In any case, the allegations could not amount to racial vilification within the meaning of the Racial and Religious Tolerance Act 2001 (Vic) for which a high bar is set by the case law_._[9] There was no audience in which hatred, serious contempt, revulsion or severe ridicule could have been incited.

1. I have set out above beginning at paragraph 17 the principles I must apply when making a decision about an application under section 75 of the VCAT Act. It is a serious matter to strike out or dismiss an application before all the evidence has been heard. I must proceed on the basis that Mr Shari will be able to prove the facts he has alleged. What he has alleged in his various documents is that officers employed by the respondent did not conduct a full investigation into, or press charges with respect to, his complaint that certain individuals had committed perjury. He also alleged that, at a police station, particular police officers made comments to him that were offensive and highly disrespectful of him on the basis of his race.
2. While it is a serious matter to strike out a proceeding, it is also not in the interests of justice, nor of any of the parties involved in that proceeding, to allow it to continue, in the face of an application for strike out, where there is no prospect of it being successful.
3. In my view, this is such a case. For the following reasons, Mr Shari's application to the Human Rights List at VCAT is so untenable as to have, in my view, no reasonable prospect of success.
4. The entire claim as it relates to the Racial Discrimination Act, as set out in the particulars of claim, is outside the jurisdiction of VCAT.
5. As I have said, I accept that Mr Shari made a mistake in relying on this Commonwealth Act, and he later said that he meant to base his application on the EO Act. After having made his claim in various different ways at first, Mr Shari eventually articulated his claim as one of discrimination in the area of goods and services on the basis of race, and victimisation.
6. There have been several cases at VCAT addressing the question of whether police in the exercise of their duties are offering a service. In brief summary:
   • In Djime v Kearnes[10] VCAT set out principles for determining when police provide services within the meaning of the EO Act, and when they do not. Those principles are set out in more detail than here, in the decision. 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. There are other circumstances in which police may be providing a service, such as when restoring or maintaining peace and good order. When police are dealing with an alleged offender, or investigating an alleged offence, or deciding whether or not to lay charges or prosecute, they are not providing a service. These principles were approved by the Supreme Court of Victoria.[11]
   • In VPZ v Victoria Police[12] VCAT determined that police are not providing a service when they are deciding 'what investigations are required in order to decide whether to arrest a person or charge them with an offence or take some other action. A person who is dissatisfied with police decision making ... is not the recipient of a service from police.'
   • In Ibraheem v Victoria Police[13] VCAT determined that alleged failures of police to investigate alleged offences did not occur in the context of service provision.
   • In Goldfinger v Victoria Police, VCAT held that 'when deciding how or if an investigation should proceed, once the initial state of providing assistance to the victim has passed, police are not delivering a service to the victim or any particular person. They are performing their duty as police. No doubt there are relevant laws that apply to how they make those decisions, but it is not the EO Act'.[14]
7. In this case, Mr Shari's complaint is that the respondent did not investigate, or did not adequately investigate his claims that certain individuals had committed perjury. Applying the principles set out in the cases referred to above, and noting the approval of the Supreme Court of Victoria for the finding that there is a distinction between police providing a helpful service to an individual or to the community at large on the one hand, and conducting an investigation or dealing with an alleged offender or deciding whether or not to lay charges for example, on the other hand, I consider that this claim does not fall within the EO Act. If the police were not providing a service, and I am satisfied that the cases indicate clearly that deciding whether or not to conduct an investigation is not a service, then there is no basis upon which that aspect of the claim can succeed.
8. The claim of victimisation is equally unlikely to succeed. This is because the definition of victimisation in section 104 of the EO Act is a confined and specific definition. A person victimises another person, within the meaning of this definition, if the person subjects the other person to any detriment because they have made a complaint or brought proceedings under the EO Act. In his particulars of claim Mr Shari relies on the definition in the Racial Discrimination Act. This, as discussed, is outside the jurisdiction of VCAT. It also, as it happens, is limited to circumstances where conduct is consequent upon a person having made or proposing to make a complaint under relevant Commonwealth law. In any case, none of the facts or allegations set out by Mr Shari support a finding that the conduct of the police officers was the consequence of Mr Shari exercising rights under the EO Act.
9. It was unexpected that Mr Shari's submissions in response to the application for summary dismissal were entirely about racial vilification, and made no reference to discrimination. Mr Shari had amended his claim on 5 March 2023, and the application with respect to racial and religious vilification (and to authorising and assisting discrimination) was withdrawn. Once withdrawn, an application cannot be reinstated. Under section 74(2)(d) of the VCAT Act, an applicant cannot make a further application about a matter that has been withdrawn without leave of the Tribunal. No such application has been made. That is the end of the matter at this time as far as the application about racial and religious vilification is concerned. I add the following for completeness. Apart from the fact that this claim was withdrawn, the bar in any case for a finding that there has been racial or religious vilification is very high. Mr Shari alleges that the police officers made comments that were extremely offensive and insulting. Those comments, said Mr Shari, were made to him, at a police station, in direct interactions with the police officers. They were possibly made in the room described by Mr Shari as intended for children where, he said, there were no witnesses present to oversee the interview.[15] There was no suggestion by Mr Shari that there was an audience of people who were, because of the comments, incited by the comments to respond with hatred, contempt, revulsion or ridicule towards Mr Shari or other people of his racial heritage. As Nettle JA said in Catch the Fire Ministries v Islamic Council of Victoria:[16]

...[it] is not whether the conduct offends a group of persons but whether it incites hatred or other relevant emotion of or towards that group of persons. Things might well be said of a group of persons which would be deeply offensive to those persons and yet do nothing to encourage hatred or other relevant emotion of or towards those persons.

1. Many of the statements and claims made by Mr Shari relate to the conduct of the police officers in general, and his concerns about what he describes as 'the broader systemic issues within Victoria Police, which involve allegations of misconduct, racial abuse, and the mishandling of my case.' It is not within the power of VCAT to examine and make findings about broader systemic issues such as those articulated by Mr Shari. I consider that the specific claim that there has been a breach of the EO Act is untenable, for the reasons set out above, and it is not in the interests of either of the parties or of justice for this application to proceed. For these reasons I dismiss the application made by Mr Shari.
2. Mr Shari has made various claims under the Charter of Human Rights and Responsibilities Act 2006 (Vic). He has claimed that his rights to life, freedom from torture, freedom of thought and expression were breached by the language that was used by the officer or officers, as were other rights relating to the conduct of the police officers in failing to bring charges in response to his allegations of perjury. As discussed above, this Tribunal cannot make findings about police misconduct beyond the jurisdiction it has under the EO Act. In my view there is therefore no prospect of this Tribunal being in a position to make findings about whether these rights were engaged or, if so, were or were not subject to reasonable limits.

[1] Respondent's submissions in support of summary dismissal dated 3 September 2024 at [8].

[2] Document provided by the applicant to VCAT and the respondent on 3 March 2024 entitled 'Submissions to County Court'.

[3] Applicant's submissions in support of claim, provided to VCAT and the respondent on 12 November 2024.

[4] Document provided on 10 February 2025.

[5] Towie v Victoria [2008] VSC 177 at [29].

[6] Lisa Muscatello t/as Apartments Melbourne Domain v Booking.Com (Australia) Pty Ltd (Civil Claims) [2019] VCAT 914 at [6].

[7] Campagnolo v Benalla and District Football League Inc [2009] VSC 228; Chan v Kostakis [2003] VCAT 951.

[8] West Homes (Australia) Pty Ltd v Crebar Pty Ltd [2001] VCAT 46 [6], [11]; Barbon v West Homes (Australia) Pty Ltd [2001] VSC 405.

[9] Catch the Fire Ministries v Islamic Council of Victoria [2006] VSCA 284; [2006] 15 VR 207.

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

[11] Djime v Kearnes [2019] VSC 117.

[12] VPZ v Victoria Police (Human Rights) [2017] VCAT 1398 at [64].

[13] Ibraheem v Victoria Police (Human Rights) [2022] VCAT 183.

[14] Goldfinger v Victoria Police [2023] VCAT 390 at [40].

[15] Applicant's particulars of claim filed on 11 July 2024 at [37].

[16] Catch the Fire Ministries v Islamic Council of Victoria [2006] VSCA 284 at [67].