1. On 3 October 2022, the Respondent filed Submissions in support of its summary dismissal application.
2. On 7 November 2022, the Applicant filed 'Applicant's Outline of Submissions' date 6 November 2022.
3. On 14 November 2022, the Respondent filed Submissions in Reply.

1. The Tribunal is empowered to deal with the Applicant's claims under s 122 of the EO Act which provides:
   1. Application may be made to Tribunal in respect of dispute

A person may make an application to the Tribunal in respect of an alleged contravention of Part 4, 6 or 7, whether or not the person has brought a dispute to the Commission for dispute resolution.

1. The Applicant bears the onus of proving, on the balance of probabilities and to a comfortable level of satisfaction, that the Respondent engaged in the conduct alleged.
2. If the facts, without explanation, contain no direct proof of discrimination of the kind alleged, then the Tribunal may still be able to draw an inference of discrimination as the most probable explanation. However, such a finding should not be lightly inferred and may not be justified if there is a reasonable and innocent explanation for the conduct, not consistent with the type of discrimination charged.
3. The Respondent's application is made under s 76 of the VCAT Act which provides as follows:

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding for want of prosecution. > > (2) The Tribunal's power to dismiss or strike out a proceeding under this section is exercisable by - > > (a) the Tribunal as constituted for the proceeding; or > > (b) a presidential member. > > (3) An order under subsection (1) may be made on the application of a party or on the Tribunal's own initiative.

4. In this application, the burden lies on the Respondent.

1. The Applicant relies upon several definitions and provisions of the EO Act, which are set out below for easy reference.
2. The Applicant claims direct and indirect discrimination, on the basis of age, race, religious belief or activity and disability, in breach of the EO Act in the area of provision of goods and services.

Discrimination in the provision of goods and services > > (1) 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) Subsection (1) applies whether or not the goods or services are provided for payment.

1. Section 7(1)(a) of the EO Act defines discrimination to include direct or indirect discrimination based on an attribute.
2. Section 8 of the EO Act defines direct discrimination:
   • (1) Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.
   • (2) In determining whether a person directly discriminates it is irrelevant -

(a) whether or not that person is aware of the discrimination or considers the treatment to be unfavourable; > > (b) whether or not the attribute is the only or dominant reason for the treatment, provided that it is a substantial reason.

3. Section 9(1) of the EO Act provides that indirect discrimination occurs if a person imposes a "requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with an attribute" and "that is not reasonable".
4. If the Applicant can show the above, the burden shifts to the Respondent under s 9(2) of the EO Act to show that the requirement is reasonable.
5. Section 10 of the EO Act provides that:

In determining whether or not a person discriminates, the person's motive is irrelevant.

1. Age, race, religious belief or activity and disability are attributes under the EO Act.[5]
2. For the Applicant's direct discrimination claim to succeed he must establish that the Respondent:
   1. treated him unfavourably;
   2. because of an attribute;
   3. in the area of goods and services.
3. For the Applicant's indirect discrimination claim to succeed he must establish that the Respondent:
   1. imposed a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with an attribute that he has;
   2. in the area of goods and services.
4. The term "unfavourable treatment" is not defined in the EO Act but it is understood to bear its ordinary meaning which includes adverse treatment and humiliation.[6]
5. Section 4 of the EO Act defines 'services' inclusively as follows:

(a) access to and use of any place that members of the public are permitted to enter; > > (b) banking services, the provision of loans or finance, financial accommodation, credit guarantees and insurance; > > (c) provision of entertainment, recreation or refreshment; > > (d) services connected with transportation or travel; > > (e) services of any profession, trade or business, including those of an employment agent; > > (f) services provided by a government department, public authority, State owned enterprise or municipal council -

but does not include education or training in an educational institution.

1. The question whether the Respondent was providing 'services' for the purpose of the EO Act is considered further below.

1. As indicated above, the Applicant's compliant on the ground of victimisation was dismissed prior to the Hearing, on the basis that it was misconceived and lacking in substance.[7] In my view, there was no evidence revealed during the Hearing which would have changed this assessment.

1. The Applicant also relied upon the RRT Act, in which s 7(1) provides that:

(1) A person must not, on the ground of the race of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.

2. In its 2021 Submissions, the Respondent's Counsel has identified relevant authorities, as follows.[8]
3. In Catch the Fire Ministries v Islamic Council of Victoria Inc the Victorian Court of Appeal found that the word "incites" should be interpreted in accordance with its plain and ordinary meaning: to urge, spur on, stir up, animate or stimulate.[9]
4. Nettle JA (as he then was), explained that the question:[10]

...is not whether the conduct offends a group of people 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. Neave JA also confirmed the threshold for contravening the RRT Act is high - the alleged conduct must incite "extreme responses".[11] This means that conduct that is merely offensive or insulting will not amount to unlawful vilification.
2. The Tribunal has also had occasion to consider the limited application of this provision:

1. In Fletcher v Salvation Army Australia,[12] the Tribunal interpreted the word "incites" thus:

The key word is 'incites'. In its context, this does not mean 'causes'. Rather it carries the connotation of 'inflame' or 'set alight'. The section is not concerned with conduct that provokes thought; it is directed at conduct that is likely to generate strong and negative passions in the ordinary person. An example of such passions would be where persons are so moved that violence might result.

It is clear the test to be applied is an objective one. The outcome does not depend upon the reaction of the person making the complaint. Nor does it depend upon whether the conduct was intended to incited hatred.

1. In Pham v Jones & Anor,[13] Member Grainger (as she then was) stated:

Examples of conduct that may be likely to be considered racial or religious vilification include publishing baseless allegations that a racial or religious group engages in serious criminal activities, encouraging violence against people who belong to a particular race or religion and the destruction of their property or promoting hatred of a racial or religious group in flyers, stickers, posters, in a speech or publication, or through websites or email.

1. The Tribunal has also held that mere venting is not sufficient, nor can conduct be vilification if the intended audience was limited to the applicant.[14]

1. In my view, there is no evidence which has been presented to the Tribunal which meets the high threshold created by the RRT Act.

1. The Applicant sought to rely upon the Charter but did not clearly articulate how it applies to the circumstances of which he complained. This is not unusual. Many applicants, both legally represented and in person, will simply add the Charter as a catch all basis for their claims.
2. The Charter can be complex to navigate, in that:
   1. it may only apply in limited circumstances; and
   2. human rights protected by the Charter, are not absolute and can be limited reasonably.
3. In its 2021 Submissions, the Respondent's Counsel usefully identified relevant provisions from the Charter and case law which has clarified its application. Below I have set out and adopt some of those submissions.
4. Section 38(1) of the Charter provides that:

(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. > > (2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision. > > ...

5. Jurisdiction to consider Charter claims is conferred on VCAT by s 39(1) of the Charter:

(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter. > > (2) This section does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right -

(a) to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and

(b) to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.

(3) A person is not entitled to be awarded any damages because of a breach of this Charter.

(4) Nothing in this section affects any right a person may have to damages apart from the operation of this section.

1. Justice Bell considered the operation of s 39 in Goode v Common Equity Housing.[15] In that case Ms Goode had brought an application in VCAT alleging that Common Equity Housing had engaged in prohibited discrimination under the EO Act and had breached her rights under the Charter. VCAT found that Common Equity Housing had not discriminated against Ms Goode and, as a result, it had no jurisdiction to consider the Charter claims. It accordingly dismissed her application. Ms Goode appealed to the Supreme Court. His Honour Justice Bell stated:[16]

... in respect of an act or decision of a public authority, the tribunal has jurisdiction under s 39(1) of the Charter to grant such relief or remedy on a ground of Charter unlawfulness as may be sought in the tribunal on a ground of non-Charter unlawfulness. The tribunal does not lose that jurisdiction because, when application is actually made seeking relief or remedy on a ground of non-Charter unlawfulness, that ground is not determined or rejected.

1. His Honour set aside the part of VCAT's order relating to the Charter claims and remitted those claims for consideration.[17]
2. One exception to this general principle is where VCAT lacks jurisdiction over the non-Charter claim.[18] Another exception is where the non-Charter claim is colourable. The relevant principles regarding colourable claims were set out by Justice McDonald in Kheir v Robertson & Ors.[19] His Honour stated:[20]

In Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation, the Full Court of the Federal Court stated that claims are colourable if 'they were made for the improper purpose of "fabricating" jurisdiction'. In such a case, jurisdiction is not attracted. To be non-colourable, the ground must be 'bona fide and not spurious, hypothetical, illusory or misconceived'. In Goode v Common Equity Housing Ltd, Bell J held that a ground of non­Charter unlawfulness may be unsuccessful but will nevertheless support relief for a ground of Charter unlawfulness. The reasoning of Bell J is consistent with Burgundy Royale. In Burgundy Royale, the Full Court of the Federal Court explained that '[a]ny other approach would involve the extremely inconvenient result that the existence or absence of jurisdiction to deal with a particular claim would depend upon the substantive result of that claim'. I accept Ms Fitzgerald's submission that the reasoning in Burgundy Royal applies to s 39 of the Charter.

1. Section 39 restricts when relief, in relation to unlawfulness arising under s 38(1) of the Charter, can be obtained to cases in which a plaintiff is also seeking that same relief in relation to the same act or decision on (non-colourable) non-Charter grounds.[21] Charter relief is therefore only available for Charter unlawfulness where:
   1. that same act or decision is also before the court on the basis of non­Charter unlawfulness; and
   2. that same form of relief is also being sought for the non-Charter unlawfulness.
2. The above brief analysis of the application of the Charter is included only to illustrate that the interaction between the Charter and other legislation can be complex to explain and understandably very difficult for a litigant in person.

Human rights are not absolute and can be limited reasonably

1. Section 7 of the Charter specifies, to the effect, that all of the rights otherwise protected by the Charter are nevertheless subject to reasonable limits having regard to the listed factors.

1. Human rights - what they are and when they may be limited

(1) This Part sets out the human rights that Parliament specifically seeks to protect and promote. > > (2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including-

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

...

1. Accordingly, the Charter recognises that human rights are not absolute and may be limited, according to the standard of justification in s 7(2) of the Charter. What is "incompatible" with a human right under s 38(1) is assessed with reference to s 7(2) of the Charter, which has been described as "an expression of the doctrine of proportionality".[22]

1. A person's right to the expectation and observance of their human rights is clearly limited while that person is subject to lawful detention, as in a prison context. The Respondent submits that any limits imposed on the Applicant and indeed other prisoners, are proportionate and consistent with the requirements of s 7(2) of the Charter. Where rights are limited within prison, the purpose of the safety and security of the prison and prisoners, is of sufficient importance to justify those limits.
2. It is appropriate to list certain rights under the Charter which clearly continue to apply, albeit with reasonable restrictions or limitations in a prison context:
   1. The right to equality before the law in s 8(3) of the Charter provides that:

Every person is equal before the law and is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

1. The term "discrimination" is defined in s 3 by reference to discrimination under the EO Act on the basis of the attributes stipulated in the EO Act. Before deciding that an act is incompatible with s 8(3) of the Charter, the Tribunal must identify that discrimination under the EO Act has occurred.
2. Section 10 of the Charter provides:

1. Protection from torture and cruel, inhuman or degrading treatment

(a) subjected to torture;[23] or

(b) treated or punished in a cruel, inhuman or degrading way;[24] or

(c) subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent.

1. There is no evidence before the Tribunal which raises any concern that the rights under s 10 of the Charter were limited in any way.
2. The right to privacy in s 13(1)(a) of the Charter is a right not to have privacy "unlawfully or arbitrarily interfered with". Clearly in a prison context, limits on this right permit lawful and non-arbitrary interferences with the privacy. Justice Bell has held that the fundamental values which the right to privacy expresses are the physical and psychological integrity, the individual and social identity and the autonomy and inherent dignity of the person.[25]
3. There is no evidence before the Tribunal which raises any concern that the rights under s 13(1)a) were limited arbitrarily or unreasonably in any way.

1. The right to freedom of religion in s 14 of the Charter includes the right to demonstrate one's religion through worship, observance, practice or teaching (s 14(1)(b) of the Charter). Observance may include ceremonial acts, dietary restrictions, wearing specific clothing, participating in rites of passage and speaking a particular language. [26] The European Court of Human Rights has said that the manifestation of a religious belief requires a "sufficiently close and direct nexus" between the belief and the act manifesting that belief.[27]

1. The Applicant complained of not receiving his Church newsletter. The Applicant accused Ms Downie, Supervisor of Records and Property at Hopkins, of causing this newsletter to be stopped and other mail he sent to the High Court, not being delivered. Whatever the reason for the non-delivery, in either case, there was no evidence that the Respondent or any member of staff intended to interfere with the Applicant's religious beliefs or practices or right to exercise his right to appeal.

1. The right to freedom of expression in s 15(2) of the Charter provides the right "to seek, receive and impart information and ideas of all kinds". It is subject to specific limits by s 15(3) of the Charter with respect to when lawful restrictions may be imposed. It has been held that public policy considerations will inform the scope of protections afforded by s 15(2) of the Charter.[28]

1. It is unclear if or how the Applicant relies upon a breach of this right, other than a general allegation that his complaints were not being adequately dealt with within the prison system.
2. The right to freedom of association in s 16 of the Charter relates to the pursuit of common interests in formal groups, such as "political parties, professional or sporting clubs, non-governmental organisations, trade unions, and corporations".[29] Clearly this right is reasonably constrained within the prison. The Applicant does not appear to have otherwise complained about this right.
3. The purpose of the right to liberty and security in s 21 of the Charter is to protect people from unlawful and arbitrary interference with their physical liberty. Section 21(1) contains a broad statement of the right in its unfettered form whilst s 21(3) provides an internal limit on the right as broadly stated in s 21(1). A limitation on a person's liberty that conforms with the requirements of s 21(3) will not involve a limit on the right to liberty.[30]
4. The right to humane treatment while deprived of liberty in s 22(1) of the Charter recognizes the vulnerability of all persons deprived of their liberty and acknowledges that people who are detained should not be subject to hardship or restraint other than the hardship or restraint that is made necessary by the deprivation of liberty itself.[31] The international case law is clear that this right will only be limited where a prisoner is subjected to hardship that exceeds what is unavoidable given the practical demands of imprisonment,[32] which requires the Court to judge any limits on rights in their practical context.
5. Section 25(1) and (2) of the Charter sets out various rights that are given to people who are "charged with a criminal offence". These rights do not apply post­ conviction. Section 25(4) provides convicted persons with the right to review of their conviction by a higher court in accordance with law. The right of review is therefore permissibly confined by the procedural requirements imposed by the law with respect to appeals.
6. The Applicant does not appear to have raised any specific complaints in terms of the rights to liberty and humane treatment and right of review, as described above.

71 In summary, the Applicant's FPOC sets out extensive extracts from the Charter with generalised complaints of noncompliance. In my view, the evidence presented to the Tribunal indicated that the Applicant's medical, psychological and dietary needs, were appropriately met. Furthermore, the evidence did not otherwise identify any breaches of the Charter which were not consistent with reasonable limitations which the Respondent was entitled to impose within a prison context.

IMPRISONMENT UNDER THE CORRECTIONS ACT

1. In its 2021 Submissions, the Respondent relies on the circumstances of the Applicant's incarceration which determined relevant duties and responsibilities of the Respondent.
2. Whilst the Applicant was a prisoner, he was in the legal custody of Corrections Victoria, Department of Justice and Community Safety under s 6A Corrections Act.
3. Furthermore, under the Corrections Act and the Corrections Regulations 2019 (Corrections Regulations) the Respondent is responsible for the establishment, management and security of prisons and the welfare of prisoners.
4. The Corrections Act and Regulations confer various functions, duties and powers on officers of the Respondent, and impose various requirements upon prisoners. The following were identified as relevant in the context of the Applicant's claims:[33]

11.1. A Governor of a prison may give prison officers such directions as they consider necessary for the security of the prison: s 19 Corrections Act. > > 11.2. An officer in charge of a prison or a part of a prison must take all reasonable steps for the security of the prison or part of the prison and the safety custody and welfare of the prisoners: s 20 Corrections Act. > > 11.3. The Governor of a prison is responsible for the management, security and good order of the prison and the safe custody and welfare of the prisoners: s 21 Corrections Act. > > 11.4. An officer may give any order to a prisoner which the officer believes to be necessary for the security or good order of the prison or the safety or welfare of the prisoner or other persons (and may use reasonable force to compel a prisoner to obey such an order and is not liable for any injury or damage caused in doing so): s 23 Corrections Act. > > 11.5. Prisoners must submit to medical examinations and assessments of their physical and mental health and may be directed by the principal medical officer to submit to medical tests (having specific regard to the safety and welfare of other prisoners in the prison): s 29 Corrections Act. > > 11.6. The Governor may at any time order a prison officer to search and examine any thing in the prison or any part of the prison, including at random (and a prison officer is not liable for injury or damage caused in carrying out searches under this section): s 45 Corrections Act. > > 11.7. A prison officer may seize any thing found that they consider likely to jeopardize the security or good order of the prison or the safety of persons in the prison: s 46 Corrections Act. > > 11.8. If a prisoner is found guilty of a prison offence, the Governor may impose a penalty, including the withdrawal of "privileges" (privileges are determined by the Corrections Regulations): s 53 Corrections Act.

5. To the extent that the alleged events occurred, the Respondent submits that the actions of the Respondent's employees involved the performance of the statutory duties and obligations outlined above. On this basis an exception under s 75 of the EO Act applies.
6. Section 75 of the EO Act provides:

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

(a) an Act, other than this Act; or

(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.

1. Section 75 does not apply unless the Tribunal is satisfied that the acts complained of as discrimination were conduct that was authorised by an enactment.[34]
2. The Respondent also referred to the prisoner rights afforded to prisoners under s 47 of the Corrections Act, which in summary provides for:[35]

14.1. an hour in the open air each day (if the weather permits); > > 14.2. adequate food; > > 14.3. special dietary food (medical, religious or vegetarian); > > 14.4. suitable clothing; > > 14.5. access to reasonable medical care and treatment; > > 14.6. special care and treatment if intellectually disabled or mentally ill; > > 14.7. access to reasonable dental treatment; > > 14.8. practice religion of choice; > > 14.9. make complaints; > > 14.10. receive at least one visit of at least half an hour each week; > > 14.11. subject to ss 47A and 47B, to send and receive letters and parcels to specified people without them being opened; > > 14.12. subject to s 47D to send and receive letters and parcels to other people uncensored; > > 14.13. take part in educational programmes in the prison.

3. The Respondent further submits, to the effect, that it must therefore follow that a failure or refusal to provide, or an interference with the enjoyment of, the statutory rights set out in s 47 of the Corrections Act, is not the failure to provide a "service" for which action can be taken under the EO Act. Rather, it is a breach of the Corrections Act. The proper means by which a prisoner is required to bring such a failure before the courts is by way of a judicial review application with respect to the unlawfulness arising under s 47.[36]
4. I concur with the Respondent's analysis.
5. Furthermore, having now received all witness statements and evidence in chief and most cross examination, I concur with the Respondent that all the matters about which complaints are made:[37]

[16.1] arose from the fact of the Applicant being a sentenced prisoner in the legal custody of the Secretary and subject to the Corrections Act and the Corrections Regulations; > > [16.2] are matters which are inherent parts of the Applicant's incarceration and not services to him (the jurisprudence with respect to services is discussed below); > > [16.3] were undertaken in performance of, and in compliance with, the statutory duties in the Corrections Act.

1. The Respondent submits that the complaints made by the Applicant do not constitute a failure to provide a "service" for which action can be taken under the EO Act. Rather they are rights afforded to prisoners under s 47 of the Corrections Act, as summarised above. Where a prisoner alleges that the Respondent has failed or refused to provide, or has interfered with the enjoyment of, the statutory rights set out in s 47 of the Corrections Act, then the remedy available is an application for judicial review.[38]
2. The Respondent helpfully identified a number of authorities which have examined the meaning of the term 'services'.[39]
3. In Waters v Public Transport Corporation,[40] McHugh J emphasized that in a case where discrimination in the provision of services is alleged:

the relevant services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination.

1. In IW v City of Perth,[41] Brennan CJ and McHugh J reiterated that:

[i]t is essential when alleging discrimination in the provision of services that the services that are being provided are precisely defined.

1. The Full Court of the Federal Court has likewise observed that the way in which the service is identified is critical.[42]
2. The scope of the word "services" was considered by the High Court in /W v City of Perth. Brennan CJ and McHugh J held that:[43]

The term "services" has a wide meaning. The Macquarie Dictionary relevantly defines it to include "an act of helpful activity"; "the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance"; "the organised system of apparatus, appliances, employees, etc., for supplying some accommodation required by the public"; "the supplying or the supplier of water, gas, or the like to the public"; and "the duty or work of public servants". But wide as the definition is, in our opinion it is not capable of including a refusal to exercise the statutory discretion provided for...

1. In Rainsford v State of Victoria the Federal Court of Australia determined the question of whether an activity is a service by reference to:[44]
   1. Whether it involved helpful or beneficial activity; and
   2. Whether the activity was helpful or beneficial to the complainant or to a class or persons to which the complainant belonged.
2. Sundberg J held that both the transport and accommodation of prisoners in cells were inherent parts of incarceration and were not helpful or beneficial to the prisoners concerned, and therefore could not be characterized as services provided to prisoners..[45]His Honour observed that:[46]

It is an artificial use of the word service to apply it to a fundamental integer of a system over which those affected have no or almost no control.

1. On appeal, the Full Court of the Federal Court in Rainsford v State of Victoria made obiter comments to the effect that the provision of transport and accommodation within a prison could conceivably fall within the definition of services, however that court did not decide the issue and upheld the appeal on other grounds.[47]
2. In Robinson v Commissioner of Police, NSW Police Force,[48] the Federal Court subsequently considered similar issues in the context of the granting of police bail, - a first instance decision that was confirmed by the Full Court of the Federal Court on appeal.[49] Yates J at first instance held:[50]

I have come to the conclusion that "dealing with" Mr Robinson's bail application did not involve the provision of "services" within the meaning of s 24 of the Act. I accept that the word "services" is a word of generality and should be given a broad meaning consistent with the objects of the Act. I also accept that the word is apt to cover activities that are helpful and beneficial. No doubt the granting of bail to Mr Robinson was, in a sense, helpful and beneficial to him, as it might be to all accused persons, compared with the alternative of remaining in custody. But in no true sense can an authorised officer acting pursuant to the duties imposed by s 18 of the Bail Act, and its related provisions, be said to be providing services to accused persons, such as Mr Robinson.

When granting police bail an authorised officer is granting authorisation to an accused person to be at liberty instead of remaining in custody. However, that liberty is not unregulated. It is liberty under the Bail Act: see the definition of "bail" in s 4(1). The granting of bail is not so much the provision by a government authority of services to accused persons, but the exercise of government authority, in the operation of the criminal justice system, to control such persons and to regulate their liberty. It is a modification of the state of liberty that is enjoyed by others. Aspects of activity within the exercise of that control, such as the deliberative process of an authorised officer determining whether to grant bail and, if so, on what conditions, and the provision of information to be used for the purposes of that deliberative process, do not take on any different character so as to become, separately, services provided to accused persons. All of these activities are inseparable from the mechanism of control that is exercised over accused persons, whose liberty is only that which the Bail Act itself provides for. As Buxton LJ observed in Gichura v Home Office [2008] EWCA Civ 385; [2008] ICR 1287 at [17], "...it would be a rather strange application of the concept of providing a service to say that one is providing a service to somebody when one is in fact restricting them from doing what they want to do.

1. In Charles v State of Victoria[51] the Tribunal considered a summary dismissal application made by the State_._ The findings of Senior Member Proctor (as he then was), which I endorse, are directly applicable to this case.
2. Senior Member Proctor held that a service must have an element of "helpful, beneficial, advantage aimed at welfare"[52] and must not be "an inherent part of incarceration".[53] Senior Member Proctor stated that it is not arguable that Corrections Victoria provides services to a prisoner "when it is predominantly making decisions as it seeks to provide management, security and good order of the prison and the safe custody and welfare of the prisoners". [54] He then analysed Mr Charles' complaints and determined whether they arguably (that is, for the purposes of the summary dismissal application) related to a service under the EO Act, dismissing those that were not arguable. I endorse the following analysis:[55]

[59] I have accepted it is arguable Corrections provides some services to Mr Charles. In my opinion, there are issues where, arguably, the required benefit exists and there is not a sufficient inherent aspect of incarceration.

[60] In summary I have decided to dismiss issues in the application as follows:

(a) Complaints about decisions made in relation to disciplinary and security issues - not service; dismissed.

Decisions in the context of disciplinary issues do not involve the provision of services as there is not the required element of benefit. Further, such decisions are an inherent part of incarceration. Decisions concerning security issues are primarily made with respect to the good governance of the prison. This is not changed by the fact that at times a prisoner may benefit to a varying degree, say if a security decision provides protection. See Geddes and Alipek.

(b) Complaints about a urine screen drug test and the way he was treated after a positive cannabinoids test - not service; dismissed.

There is no element of benefit and a strong element of being inherent to incarceration. It is part and parcel of the security/disciplinary regime within prisons. See Geddes.

(e) Complaints about his changed security rating - not service; dismissed.

Again, there is no element of benefit and a strong element of being inherent to incarceration. It is part and parcel of the security/disciplinary regime within prisons. See Egan.

(d) Complaints about different rules at different prisons with regard to hair clippers - not service; dismissed.

The making of rules cannot constitute a service. Corrections does not make or enforce rules concerning hair clippers in order to benefit particular prisoners. See Egan.

(e) Complaints about decisions made with respect to where Mr Charles was located within the prison system (i.e. which prison) - not service; dismissed.

Decisions concerning prisoner location between prisons are an inherent part of incarceration. Overall they address management security and good order of the prison. Those decisions cannot be regarded as not services one day (transfer due to misconduct - no element of benefit or help) and services on another day (to ensure prisoner safety or promote rehabilitation - element of benefit). See Egan.

(f) Complaints about decisions made with respect to where Mr Charles was accommodated within each of the prisons to which he refers in his application (i.e. which unit within a prison) - not service; dismissed.

Decisions concerning prisoner location within a prison are an inherent part of incarceration. They address management, security and good order of the prison as well as rehabilitation. Those decisions cannot be regarded as not services one day (transfer due to misconduct - no element of benefit or help) and services on another day (to ensure prisoner safety or promote rehabilitation - element of benefit). See Egan.

(g) Refusal to allow Mr Charles' application to perform volunteer work in the Prison Visit Centre Canteen - arguably service.

Similar to VCAT's observation in Alipek (concerning prison industry work), it is arguable this relates to a service.

(h) Complaints about conduct of the prison officers towards him - not service; dismissed.

In my view, the conduct of prison officers towards Mr Charles is not arguably a "service". That conduct is an inherent part of incarceration, not a service provided to the benefit of each individual prisoner.

While not relevant to my decision here, I note prisoners subject to alleged negative treatment have other avenues of complaint.

(i) Complaints about the conduct of other prisoners towards him - not service; dismissed.

I do not understand Mr Charles to be submitting the conduct of prisoners towards him is some form of service. Rather, he seems to submit that him being placed in the position where he was treated badly by prisoners constituted a failure by Corrections to provide a service to him, with respect to its obligations to provide him with a safe appropriate environment.

In my view, that is not arguably a "service". Corrections' broad responsibilities of that nature are an inherent part of incarceration, not a service provided to the benefit of each individual prisoner.

While not relevant to my decision here, I note prisoners subject to such alleged negative treatment have other avenues of complaint.

(j) Complaints about food provision - not service; dismissed (except special food based on medical advice arguably a service).

The provision of standard food to prisoners is an inherent part of incarceration. It is not an individualised service provided to each prisoner. Here, I see an arguable exception where special food is provided to an individual prisoner based on medical advice. This dovetails with my view with respect to medical services.

(k) Complaints about medical treatment - arguably service.

Medical treatment provided to a specific prisoner is arguably the service conferring a benefit on prisoner. I note Corrections' position that medical care provided to prisoners in prisons under its control is provided by a contracted medical services provider and is not provided by, or controlled by Corrections.

While that may well be so, the issue cannot be settled on that basis of the limited evidence in this s 75 application. Arguably, Corrections cannot avoid any responsibilities it has by subcontracting to another party. I note the vicarious liability provisions at ss 109 and 110 of the EO Act.

That said, I do not indicate any view that Corrections' actions are in any way motivated by any intention to avoid such responsibility.

(l) Complaints related to access to telephone, problems with lost property, managing money - arguably services.

Concerning these issues, there is arguably a sufficient element of benefit, where in the general operation of the prison system. There is arguably a more distinct element of benefit.

...

[66] My decision that something is arguable a service does not predict VCAT's final decision on the point.

1. The matter was later struck out for want of prosecution. [56]
2. The Tribunal's other relevant case law on the meaning of 'services' in the EO Act has found that:
   1. Corrections Victoria did not provide a service in classifying a prisoner and in separating him from other prisoners;[57]
   2. the provision of prison industry work, though an inherent part of incarceration could be regarded as a beneficial activity provided to a prisoner and could be considered a service - however the Tribunal did not decide the issue;[58]
   3. providing reports about the complainant to the Adult Parole Board was not providing a service to the complainant;[59]
   4. the Australian Labour Party does not provide a service in offering the facility of membership or in providing a disciplinary process under its rules.[60]
3. The Appeals Panel of the NSW Civil and Administrative Tribunal (NCAT) has considered the issue of services in the prison context in State of New South Wales v Whiteoak.[61] After considering the statement in IW v City of Perth that the word "services" has its ordinary meaning, the Appeals Panel noted that:

Giving a word its ordinary meaning does not, however, preclude the word deriving shades of meaning from its context and the syntax of the sentence in ways which are significant for the case in hand - Duffy v Da Rin [2014] NSWCA 270 at [30].

1. The Appeals Panel analysed the relevant legislation, which, like the EO Act uses the phrase "services provided". The Appeals Panel observed:

Although, when "services" are provided, the person to whom they are provided receives a benefit, it does not follow that in every case where activities happen to result in a benefit to a person those activities must amount to "services" provided to that person.[62]

1. The Appeals Panel also considered the dictionary meanings of the word "provided" and noted that they convey "the essential notion of making something available":[63]

They do not suggest in any way that "provide" includes imposing something on a person. Thus if a governmental function or statutory duty is being performed and the persons affected have no ability to decide whether to accept or reject what is done or the outcome, it is unlikely that services are being provided in those circumstances.

1. The NCAT has also held that the conduct of urinalysis within a prison is not a service, noting that the purpose of the urinalysis policy is to maintain good order and discipline within the prison system not to benefit inmates and that the activity is imposed on inmates rather than being made available to them.[64] On another occasion, that same tribunal also gave leave to a prisoner to bring a case with respect to discrimination in the provision of medical services within a prison, on the basis that "there is room for an argument that they constitute a service as defined in the Anti-Discrimination Act".[65]
2. Also relevant is this Tribunal's case law confirming that the performance of statutory duties do not fall within the definition of services under the EO Act. In Kavanagh v Victorian Workcover Authority,[66] Judge Lacava (sitting as Deputy President) summarized the relevant decisions. His Honour noted:[67]

From these decisions, the respondent submits, and I agree, that a number of principles applicable in this case can be discerned. Firstly, whilst government activities are capable of being services, not all are. Secondly, it is critical to identify with precision the service said to have been refused. Thirdly, a service, to be a service, must confer a benefit, advantage or welfare on the complainant. Fourthly, the exercise of statutory functions or duties which require the exercise of a discretion, which is quasi judicial in nature, are not services. Fifthly, the performance of a statutory duty to decide whether or not to prosecute are not services. Sixthly, the decision to refuse to exercise a statutory discretion is not a refusal of a service, although a refusal to consider to exercise the discretion may be a refusal of a service. Finally, performance of statutory duties will not be regarded as services.

1. In conclusion, I am satisfied that there are abundant authorities of both superior courts and consistent decisions in this Tribunal and other decisions of the NCAT which clearly preclude the application of 'services' under the EO Act to the functions and duties performed by the Respondent.
2. In the Applicant's FPOC, he did not identify the nature of the 'services' for which he alleged discrimination other than the implicit provision of care and accommodation. Accordingly, I agree with the Respondent's submission that the claims made by the Applicant do not relate to services within the meaning of the relevant EO Act definition.

1. In my view, the chances of the Applicant succeeding under any of his complaints are negligible, by reason of both legal impediments and deficiency of credible and relevant evidence. Following is a brief indication of the difficulties faced by the Applicant.
2. I have already indicated above that:
   1. I accept that the Respondent does not provide 'goods and services' for the purposes of a claim under the EO Act; and
   2. The Applicant's complaints do not fall within the RRT Act; and
   3. The Charter rights have either not been limited; are necessarily and reasonably limited by the context of a penal system or the claims rely upon proof of discrimination under the EO Act;

1. On 10 March 2020, the Respondent made an application for summary dismissal of the application, pursuant to s 75 of the VCAT Act, on the grounds that it is misconceived and lacking in substance.
2. In the alternative, the Respondent requested an order pursuant to s 76 of the VCAT Act summarily dismissing the discrimination and vilification complaints because they relate to events that allegedly took place more than 12 months before the application was made.[68]
3. In that instance, the Tribunal dismissed the victimisation claim, on the basis that it was misconceived and lacking in substance.[69] The Respondent's application was otherwise dismissed, there being a very high threshold to meet before a Tribunal can be satisfied that there is no arguable case.
4. In my view, it is now appropriate to revisit the age of these complaints and the delays which have occurred since the Hearing was adjourned.
5. As indicated above, the behaviour of which the Applicant complains all allegedly occurred whilst serving his sentence in custody. Hence, many if not most of his complaints related to alleged conduct between one and five years prior to the filing of his Application with the Tribunal on 29 July 2019. In turn, the Hearing did not commence until April 2021, and it is now nearly 2 years later. At best, when giving evidence, the Applicant and witnesses have had to recollect events between at least 3 to 7 years ago. I also have regard to the Respondent Counsel's submissions that the delay adversely impacts upon a Presiding member's reasonable capacity to recall all the details of the evidence given and the assessment of ten witnesses. In my view, these circumstances have a significant potential to impact adversely upon the resolution of the proceeding fairly. For this reason alone, it is appropriate to dismiss the proceeding under s 76 of the VCAT Act in accordance with Clause 18 of Schedule 1.
6. The Applicant has made many claims of unfavourable treatment by one or more of the prison staff, which he found hurtful and humiliating.[70] Putting aside whether such conduct amounts to the provision of goods and services, in my view, the evidence has not demonstrated how the Respondent treated him unfavourably, because of his age, race, disability or religious belief. This is a fatal deficiency in the Applicant's evidence.
7. It must also be borne in mind that unacceptable or antisocial behaviour such as inexplicable rudeness, ill-mannered or insulting behaviour and lack of consideration for others does not of itself necessarily amount to discriminatory conduct. The recipient of such conduct may be understandably aggrieved, shocked and hurt. The Applicant's own witnesses certainly attested to bad behaviour which they occasionally experienced by some prison officers. However, it does not necessarily follow that such conduct will satisfy the elements of discriminatory behaviour under the EO Act.
8. The Applicant's discrimination claims predominately focused upon the officers' conduct of cell searches; their removal of food containers from his cell; their ultimate restriction of ingredients for biscuit baking; and his volume of accumulated food, ingredients and documents, requiring storage.
9. In my view, there is no question that the volume of the Applicant's biscuit baking became excessive and whilst it may have been tolerated and overlooked for periods, the evidence revealed that the Respondent acted within its rules, practices and procedures. Furthermore, the Respondent's witnesses expressed reasonable concerns for managing food trafficking and stand over behaviour by prisoners.
10. Certain complaints made by the Applicant appeared to have been dealt with elsewhere, for instance:
    1. The Applicant's claims concerning transportation and storage of property, particularly when he was being moved between facilities, was the subject of a conciliated agreement following a complaint to Victorian Equal Opportunity and Human Rights Commission (VEOHRC). Accordingly, this is not a matter which should have been brought before the Tribunal; and
    2. The Applicant made a claim with respect to the same facts concerning the reading of his legal documents, to both the Office of the Victorian Information Commissioner (OVIC) and to VEOHRC in 2017. On 14 March 2018 OVIC wrote to the Applicant to notify him that his complaints had been dismissed in accordance with s 66(5) of the Privacy and Data Protection Act 2014 (Vic) and that no further action may be taken in relation to the complaint. Accordingly, this is not a matter which should have been brought before the Tribunal
11. Curiously, many of the complaints made by the Applicant concerning destruction of food items, alleged that other prisoners had suffered the same fate. Again, there was no identification of a protected attribute in relation to the Applicant.
12. The management of the Applicant's diabetes and dietary requirements was documented and there was no evidence before the Tribunal that the Applicant had suffered any adverse medical consequences.
13. The Applicant's complaints concerning delivery of his mail or the alleged opening of his mail does not identify a protected attribute. The Respondent provided a reasonable and plausible account for the limitations to their involvement in mail delivery and the overriding security issues.
14. The physical assaults upon the Applicant by other prisoners on 4 March 2015, 21 December 2016 and 17 September 2017 were not denied. However, the Applicant does not allege that the Respondent's alleged failure to prevent him from being assaulted was because of any protected attribute under the EO Act. The Respondent had policies and procedures in place to minimise the risk of violence between prisoners but is not responsible for the actions of prisoners, and the actions of prisoners are not part of any "service" provided by the Respondent. I am satisfied that the medical evidence provided in the witness statement of Scott Jacques shows that the Applicant was provided with extensive medical and mental health support after he was assaulted.[71]

1. Section 76 of the VCAT Act applies to claims brought under the EO Act.[72] The overriding consideration in determining such an application is the interests of justice and the Tribunal's ability to control its own processes, to ensure that those interests are not compromised.[73]
2. It is uncontroversial that in determining an application under s 76, the Tribunal should consider similar matters to those considered by the courts, in determining a want of prosecution claim,[74] including:[75]
   1. Whether there has been an inordinate and inexcusable delay by a party in taking a step in the proceeding.
   2. Whether the delay means that there will be a substantial risk that a fair trial will not be possible.
   3. Any prejudice to the respondent that is caused by the delay.
   4. Any hardship to the applicant if the matter was dismissed.
3. The observations of Wilcox and Gummow JJ in Lenijamar continue to provide useful guidance for the determination of these applications:[76]

[T]wo situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.

1. The Respondent submits that this case falls within both categories that Lenijamar discusses as being "obvious cases for the exercise of the power", namely, that the Applicant is unable to complete the final day of the hearing (rather than merely being unwilling); and the Hearing cannot be completed within an acceptable period. I agree.
2. Since October 2021, the Applicant has provided 7 medical certificates of unfitness to proceed, extending over 16 months. The Applicant's psychological difficulties have clearly been long standing. Whilst incarcerated, a medical certificate dated 24 February 2015 states, in part:

He is known to have long ongoing depression/anxiety

1. A further medical certificate dated 8 November 2018 records 'chronic depression'.
2. There is no current indication of when the Applicant might be well enough to continue the Hearing.
3. In my view, the lengthy delay and the uncertainty of recommencing the Hearing is now intolerable and unacceptable. In reaching this conclusion, I do not criticise the Applicant in any way. He clearly needs ongoing psychological support without the anxiety of a Hearing 'hanging over his head.'
4. I am satisfied that the interests of justice require that the proceeding be dismissed.

1. For the reasons given, it is in the interests of justice that the proceeding be dismissed for want of prosecution under s 76 of the VCAT Act.
2. For the reasons given, I am satisfied that any further delay in the conduct of the proceeding will significantly impact adversely upon the Tribunal's ability to conclude a fair hearing for both parties.
3. For the reasons given, I am also satisfied that the further conduct of the proceeding is unlikely to result in a favourable outcome for the Applicant.

1. [1] Soo v Corrections Victoria Department of Justice and Community Safety [2020] VCAT 1224, [22].

[2] Section 6A Corrections Act.

[3] Both of whom were inmates at Hopkins with the Applicant.

[4] The following witness made witness statements and gave oral evidence on behalf of the Respondent: Miles Rusden; Simon Comitti; Noel Baird; Adam Taylor; Daniel Fontana; Craig Cooper; Kylie Downie; Josh Seebohm; and Scott Jacques.

[5] Section 6(a), (e), (m) and (n) of the EO Act.

1. [6] Aitken & Ors v State of Victoria - Department of Education & Early Childhood Development [2012] VCAT 1547. [156] per Judge Ginnane referring to Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379; (2001) 108 FCR 1 [54] Beaumont ACJ.
2. [7] Soo v Corrections Victoria Department of Justice & Community Safety [2020] VCAT 1224, [22].

1. [9] Catch the Fire Ministries v Islamic Council of Victoria Inc [2006] VSCA 284, [14] (Nettle JA), [159] (Neave JA).
2. [10] Ibid [67] (Nettle JA)..

[12] [2005] VCAT 1523, [5] - [6].

[13] [2012] VCAT 1161, [95].

[14] Bennett v Dingle [2013] VCAT 1945, [44 - 46].

[15] [2014] VSC 585.

[17] See also Rein v Australian Health Practitioner Regulation Agency [2017] VCAT 452, [32) - [34].

1. [18] MTD obo YTA v Lifestyle Solutions (Aust) Ltd [2018] VCAT 440 at [70] and Secular Party of Australia Inc v the Department of Education and Training [2018] VCAT 1321, [63).

[19] [2019] VSC 422.

1. [20] [2019] VSC 422, [101].

[21] Goode v Common Equity Housing [2014] VSC 585 [25].

[22] Victorian Toll & Anor v Taha and Anor; State of Victoria v Brookes & Anor [2013] VSCA 37; (2013) 49 VR 1 at fn 214.

[23] The Convention against Torture defines 'torture' relevant to (a).

[24] Refer Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009) VCAT 646 [559]-[561), [574] relevant to (b).

[25] Kracke v Mental Health Review Board & Ors (General) (2009) 29 VAR 1; [2009] VCAT 646 [619)-[620].

[26] UN Human Rights Committee, General Comment No. 22, [4].

[27] Eweida v The United Kingdom (2013) 57 EHRR 8 [82); quoted in Cobaw Community Health Services [2014] VSCA 75; (2014) 50 VR 256; [2014) VSCA 75 [434) (Neave JA).

[28] Magee v Delaney [2012] VSC 407; (2012) 39 VR 50; [2012) VSC 407 [86)-[91].

[29] Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary Oxford University Press, 3rd Edition, 2013 [19.13].

[30] LM [2008] VCAT 2084, [117).

[31] Certain Children v Minister for Families [2016] VSC 796; (2016) 51 VR 473, [172] - [173).

[32] Kudla v Poland [2000] ECHR 512, [94).

[33] Respondent's Submissions [11.1]-[11.8].

1. [34] Djime v Kearnes (No 2) [2015] VCAT 2055, [127] - [129] where s 75 of the EO Act was found to apply to the lawful conduct of a police officer pursuant to the Victoria Police Act 2013 ((Vic) (Police Act) and the Police Regulations Act 1958 (Vic) which may otherwise constitute discrimination.

[35] Respondent's Submissions summary of a 47, [14.1]-[14.13].

[36] There are many examples of cases brought by prisoners alleging that there has been a breach of the statutory rights in s 47 of the Corrections Act. Some examples are: Haigh v Ryan [2020] VSC 102; Haigh v Ryan [2018] VSC 474; Minogue v Doherty [2017] VSC 724; Minogue v Shuard [2017] VSCA 267; Minogue v Shuard [2016] VSC 797; Castles v Secretary, Department of Justice & Ors [2010] VSC 310.

1. [38] The Respondent referred the Tribunal to the following cases where prisoners alleged that there had been a breach of their statutory rights under s 47 of the Corrections Act: Haigh v Ryan [2020] VSC 102; Haigh v Ryan [2018] VSC 474; Minogue v Doherty [2017] VSC 724; Minogue v Shuard [2017] VSCA 267; Minogue v Shuard [2016] VSC 797; Castles v Secretary, Department of Justice & Ors [2010] VSC 310.

[40] (1991) 172 CLR 349, 404-405 (McHugh J) (Waters v PTC)

[41] [1997] HCA 30; (1997) 191 CLR 1, 16-17 (Brennan CJ and McHugh J).

[42] Rainsford v State of Victoria [2008] FCAFC 31, [72].

[43] IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, 11 (Brennan CJ and McHugh J).

[44] [2007] FCA 1059; (2007) 167 FCR 1, [73] (Sundberg J).

[47] Rainsford v State of Victoria [2008] FCAFC 31; (2008) 167 FCR 26, [9] (Full Court).

[48] Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770, [178] and [180] (emphasis added).

[49] Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 and Robinson v Commissioner of Police, NSW Police Force [2013] FCAFC 64.

[50] See also Rainsford [2007] FCA 1059; 167 FCR 1 at [78].

[51] [2015] VCAT 375. See also Egan v State of Victoria Department of Justice [2011] VCAT 1364.

1. [55] Ibid [58]; see also Egan v State of Victoria Department of Justice [2011] VCAT 1364, (26] - (27].

[56] Charles v State of Victoria [2016] VCAT 403.

[57] Egan v State of Victoria Department of Justice [2011] VCAT 1364.

[58] Alipek v GSL Custodial Services Pty Ltd & Anor [2008] VCAT 845.

[59] Garden v Victorian Institute of Forensic Mental Health t/as Thomas Embling Hospital [2008] VCAT 582.

[60] Geddes v Australian Labour Party (Victorian Branch) [2009] VCAT 409.

1. [61] State·of New South Wales v Whiteo1;1k [2014] NSWCATAP 99.

1. [64] Harrington v Corrective Services New South Wales, Department of Justice [2017] NSWCATAD 46, [145].
2. [65] Roberts v Department of Justice, Corrective Services New South Wales [2017] NSWCATAD 310, [46].

[66] Kavanagh v Victorian Workcover Authority trading as WorkSafe Victoria [2011] VCAT 2009.

[68] Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). Schedule 1, clauses 18 and 66K.

1. [69] Soo v Corrections Victoria Department of Justice & Community Safety [2020] VCAT 1224, [22].
2. [70] For example, the Applicant's complaint made a foot dragging motion to fellow officers to mock the Applicant outside the kitchen building or that a prison officer regularly told the Applicant to "lift up your feet". These complaints were denied by the Respondent and not witnessed by any witnesses called before the Tribunal.

[71] Witness statement of Scott Jacques, [113] - [141.

[72] Gabriel v Council of Box Hill Institute of TAFE [2002] VCAT 302, [11].

[75] Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520; (1990) 27 FCR 388, 396. (Lenijamar).