The applicant's application bases itself on his interactions with members of Victoria Police in the course of his participation in public protests against the Victorian government's COVID-19 response, a response which the applicant says adversely affected his business. He says that these interactions occurred over the course of three protest events in September 2020, November 2020, and June 2021.
The applicant asserts that, as a service provider, Victoria Police and the State government "transgressed his equity as a free citizen and his human right to protest any decision they make". He says that these authorities are thus acting without clean hands, unconscionably and in fraud by not upholding their fiduciary responsibilities to the Victorian people.
According to his application, in September 2020, after the Victorian government's failure in the management of hotel quarantine, and by allowing the COVID-19 virus to spread into the public, the community was placed in a number of severe lockdowns, which the applicant says were due to government incompetence and the premier's malfeasance in public office. According to his submissions, it was at this time that applicant attended a protest, for the first time in his life, to stand up against what he believed to be wrong. The protest was at the Shrine of Remembrance and the applicant recalls a lot of police being present.
The applicant says that he found the presence of the police to be overwhelming, likening it to a military coup. He says that he had not brought his walking stick with him, because he was afraid that the police might beat him with it. He had this concern because he had seen a lot of violence against protesters on the news, but had told himself that, even as a disabled man, he must stand up against what is wrong, and for truth and justice in the world.
The applicant describes his disability as being permanent nerve damage to his left knee resulting from surgery in December 2016, which has resulted in chronic pain and a conspicuous limp, and for which he wears a metal knee brace.
According to the applicant's submission, as well as the visual presence of his leg brace, the police were made aware of his disability at every interaction he had with them during the protest. The applicant says that the police used his disability as a means of hurting him. He describes being pushed and kicked by police on horseback, and then being attacked and arrested, which he says reminded him of growing up in apartheid era South Africa, where 'neo-Nazi' police acted brutally.
The applicant's application says that the arresting police tried to hurt him, and racially profiled him because of his Afrikaans accent, and fined him and forced him to go home, which intimidated him.
The applicant says he referred the matter to the Magistrates' Court and was later advised that the matter had been struck out. He says that the police then trespassed at his home at 'random hours of the night' to threaten him to stay away from protests.
The second event described by the applicant took place in November 2020 when he attended another protest, this time at Parliament House. The applicant says that, during this event, the police 'kettled' and detained a group of about 400 protesters for more than four hours. The applicant says that he was unable to sit down and was not offered water during this time, circumstances which he describes as being 'tortured' for his political beliefs, his race and his disability. The applicant says that he was deprived of his liberty, experienced trespass to his person, and no provision was made for his disability.
According to his application, the applicant was then brutally arrested. He refers to the arresting officers as 'Nazi Gestapos' who he says tortured him. He describes the scenario in detail, including his arrest and later questioning by police at a police station. The applicant says that, some weeks after these events, he was informed by Commercial Passenger Vehicles Victoria (CPV) that his vehicle registration had been suspended (subsequently restored), causing him financial hardship. He says that the suspension of his registration was a result of his false arrest, unlawful kidnapping and detainment.
The third event described by the applicant occurred on 5 June 2021 when the applicant says he was at Flinders Street Station, and he noticed a lot of police and people gathered there. According to his application, the applicant stayed in the area because he has an inquisitive nature. He was subsequently approached by a police officer and asked for his details, which he declined to provide. The applicant says that he and the police officer argued, and that several more police officers became involved. The applicant was asked why he wasn't wearing a face mask (a health requirement at that time) and the applicant told them he had an exemption, which he refused to show them. The incident escalated, and the applicant was again arrested.
According to the applicant, he was again mistreated by the police in the course of the arrest, and later at the police station, including being physically harmed. He describes being pushed, forcibly restrained, and manhandled, causing him severe pain. He was later released, and his possessions returned to him.
The applicant concludes his application by saying that he is of the belief that Victoria Police is targeting him due to his ethnicity and disability, because his disability makes him an easy target as he can't run away from them, and this means the police can easily overpower him. He says that his knee brace stands out in the crowd and "then they strike". He feels that he is not safe in his own home as the police who he describes as 'thugs' know where he lives and can come for him at any time.
The applicant says that he seeks an injunction against Victoria Police and the State of Victoria prohibiting them from further assaulting, torturing, kidnapping and falsely arresting him. He wants the members of the police force involved to face justice, and he wants to be restored to the person he was before these events took place.
[2]
The first and third respondents have applied for the application, so far as it makes allegations against them, to be summarily dismissed pursuant to section 75(1)(a) of the VCAT Act on the basis that the proceeding is misconceived and lacking in substance.
The second respondent has made an application for an order pursuant to section 60A of the VCAT Act to be removed as a party form the proceeding, or in the alternative seeks that the proceedings be dismissed pursuant to section 75(1)(a) of the VCAT Act on the basis that they are misconceived or lacking in substance.
The first and third respondent's submission is that the applicant's claims against them are misconceived and lacking in substance and should be summarily dismissed because:
[3]
(a) the alleged conduct does not occur within the context of the provision of a 'service' for the purposes of the EO Act; and
(b) further or in the alternative, even taking the applicant's claims at their highest, much of the alleged conduct identified by the applicant cannot be said to have been done "because of" a protected attribute held by the applicant, and those parts of his application should be struck out.
[4]
The second respondent's submissions are that the second respondent should be removed as party to the proceeding, or in the alternative any claim made against it summarily dismissed because:
[5]
(a) there is no claim of discrimination by the second respondent capable on the facts alleged; and
(b) it is not legally possible to maintain that the second respondent authorised or directed the conduct of the first or third respondents, or Commercial Passenger Vehicles in the manner suggested, or at all;
(c) any residual claim of "malfeasance in public office" is beyond the jurisdiction of VCAT.
[6]
In regard to the first and third respondent's submissions, at the times that the public protests occurred, metropolitan Melbourne was subject to directions made pursuant to the provisions of the Public Health and Wellbeing Act 2008 (Vic) (PHW Act) which had the effect of prohibiting people in metropolitan Melbourne from leaving their homes, except for one of the permitted reasons, and which prohibited attendance at large public gatherings, including protests.
The submissions of the first and third respondents address the applicant's allegations about his dealings with police over the course of his interactions with them, and record that the applicant has not specified what "service" he says that members of the Victoria Police were providing him with during those interactions.
The respondent's submissions set out the role of Victoria Police, noting that Section 8 of the Victoria Police Act 2013 (Vic) (Police Act) says that the role of police is to 'serve the Victorian community and uphold the law so as to promote a safe, secure and orderly society'. Section 9(1) of the Police Act says that the functions of police include:
[7]
(a) preserving the peace;
(b) protecting life and property;
(c) preventing the commission of offences;
(d) detecting and apprehending offenders;
(e) helping those in need of assistance.
[8]
The first and third respondents contend that matters such as those referred to in section 9(1)(a) to (d) of the Police Act are functions directed to the community at large, and that it is inconsistent with that general duty for an individual duty to be owed in respect of functions, such as preserving the peace and detecting and apprehending offenders, that are not carried out for an individual for the community.
The respondent's submissions note that the applicant's claims involve the following things done by Victoria Police:
[9]
a) issuing the applicant with a fine;
>
> b) arresting the applicant;
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> c) detaining the applicant following arrest;
>
> d) attending the applicant's home to deliver a warning;
>
> e) general policing directed towards maintaining the peace, good order and protection of the public at protests attended by the applicant.
[10]
The respondents say that none of these things can properly be said to have been done within the context of a "service" provided by members of Victoria Police, and that the claims are therefore misconceived and lacking in substance.
The first and third respondent's submission canvasses the role of Victoria Police and the exercise of its duties, powers and functions. The respondent acknowledges that Victoria Police is a public authority which is capable of providing services for the purposes of s 4 of the EO Act, and sets out reasons why the conduct alleged by the applicant in the present proceedings is not in the context of the provision of services.
The respondents say that while it is clear that authorities recognise that certain aspects of policework might amount to the provision of services, such reasoning is understood as limited to conduct where the police "act in a manner that confers benefits uniquely upon those would-be victims in their capacity as such".[6] There must be an identified benefit which is to be uniquely conferred upon the individual in question. For example, in responding to an emergency distress call for assistance Victoria Police may be delivering would-be victims of criminal offending from harm's way, and therefore providing a service.
The first and third respondents' submissions set out additional principles in determining whether and when Victoria Police may be seen to be providing services.
According to their submissions, none of the conduct alleged by the applicant in these proceedings falls within the category of police conduct that is determined to be capable of falling within the definition of a service for the purposes of the EO Act.
The first and thirds respondents say that the acts of an arresting police officer cannot be characterised as being "helpful or beneficial" to the individual, and therefore are not a service to the individual being arrested.[7] The same can be said about the issuing of a fine.[8] Similarly, the pursuit and arrest of an alleged offender has been held not to involve the provision of services for the purpose of anti-discrimination legislation.[9]
The respondents say that the detention of a person (including detention during transportation) following an arrest is not "helpful or beneficial" to the individual and is not properly characterised as "service".[10] Similarly, cautioning, arrest and questioning in custody of a complainant does not involve the provision of a service.[11] Nor is the attendance by members of Victoria Police at the applicant's home alleged to be in response to a specific request from the applicant for assistance, such as where an emergency call was made. Rather, the alleged police attendance at the applicant's home was for the purpose of delivering a warning. Such an attendance is not "helpful or beneficial" to the applicant, and therefore does not fall within the context of the provision of "services".[12]
According to the first and third respondents' submission, the role of police in maintaining the peace and protection of the public at the protests which were attended by the applicant was conduct performed by the police in the context of general policing duties. While arguably there was benefit to the community at large flowing from this conduct, it was not a benefit uniquely conferred on the applicant. In particular, the respondents say that the interactions complained of by the applicant in the course of the protests, including being "kettled" (and his claim that reasonable accommodation for his disability was not made in that context) cannot be characterised as "beneficial" or "helpful" to the applicant, and therefore are not a "service".
The respondents further say that the applicant complains of alleged behaviour by police that he says was targeted towards him while the police were monitoring the protest (being pushed and kicked by a horse-mounted officer and "stalking"). Again, this cannot be said to be conduct that was "beneficial" or "helpful" and therefore falling within the definition of a service provided to the applicant.
The respondents say that because the applicant has not identified any conduct that occurred within the provision of a service, or in any other area or activity in which the EO Act prohibits discrimination, the whole of the applicant's claims against the first and third respondents should be dismissed.
The first and third respondents further or alternative submissions are that the application reveals no basis on which it can be said that conduct alleged to have been done by members of Victoria Police was done to the applicant "because of" a protected attribute. Even if the applicant has a basis to allege that his alleged disability, physical features and race could be protected attributes for the purpose of the EO Act, and even taking his claims at their highest, for a number of the allegations made, there is nothing to support the proposition that any alleged conduct of the police was taken because of any attribute which the applicant has. [13]
While the respondents accept that such a causal link may, in an appropriate case, be inferred, it is incumbent upon the applicant, at a minimum, to identify the matters from which it is to be inferred that the applicant was treated as he was because of the attributes of disability or race. The applicant has not done so. On this basis, the respondents say that, even if accepting that the relevant conduct occurred, and that the applicant has the relevant attributes, his claims do not disclose a cause of action and for that reason are misconceived and lacking in substance and liable to be struck out, or summarily dismissed on that basis.
[11]
I have taken into account all of the material before me regarding the named respondents in this proceeding, and I have considered whether the second respondent should be removed under the provisions of section 60A of the VCAT Act.
The submission of the respondents is that the second named respondent, being the State of Victoria (Department of Premier and Cabinet) (DPC) is not a proper or necessary party to the proceeding, and that the proper respondents, if any, are the first respondent, the State of Victoria (Victoria Police) and the third respondent, the Chief Commissioner of Police, and therefore the second respondent ought to be removed pursuant to section 60A of the VCAT Act.
The submission of the respondents is that DPC is not a service provider, and nor does it prove any goods or services under the EO Act when the relevant decision maker within DPC is exercising emergency powers under the PHW Act. The respondents say that while the applicant states that he was detrimentally impacted by the COVID-19 lockdowns in Victoria, there is no statement that any detriment he suffered arose from discrimination the basis of his disability, race or any other protected attribute. According to the respondents' submissions, the alleged conduct by the second respondent would not constitute discrimination under the EO Act and would not be prohibited under Part 4, 6 or 7 of the EO Act, and, even if the conduct did constitute discrimination, it would be lawful as the directions under the PHW Act are made with statutory authority.
The respondents say that there is no open and arguable case against the second respondent, especially for reason that there are no allegations by the applicant which, even if proven, would indicate that the actions of the second respondent were linked to a protected attribute of the applicant.[14]
The respondents say that the second respondent - or the Premier, (as was alleged by the applicant) does not have the power to direct Victoria Police and did not do so at the applicant's arrests. Rather DPC is a Victorian Government Department which leads whole of government policy and performance. It does not control, direct or issue orders to Victoria Police or the Department of Justice and Community Safety, and DPC does not support the Minister for Police in the administration of her functions.
Similarly, in relation to the applicant's allegations against CPVV, the respondents submit that the second respondent does not control the actions of CPVV. CPVV is the regulator of the commercial passenger vehicle industry responsible for taxis, hire cars and ride share. It is a statutory corporation and part of Victoria's integrated transport portfolio, led by the Department of Transport. It reports to the Minister for Public Transport. The Second Respondent does not control, direct or issue orders to the Commissioners nor does it support the Minister for Public Transport in the administration of his functions.
Although the applicant has made a general assertion that the Premier of Victoria engaged in malfeasance in public office, he has not made any direct claims or allegations against DPC. His submissions seem to be to the effect that the Victorian State Government enabled or endorsed the alleged discriminatory acts.
I do not accept, to the extent it can be discerned, the applicant's point of view about the role of DPC.
I accept that the second named respondent, DPC, is not a service provider, and that DPC does not provide goods or services under the EO Act when exercising its powers under the PWH Act I further accept that the second respondent does not have the power to direct Victoria Police nor to direct the actions CPVV.
I find that the actions of Victoria Police and of CPVV in relation to the applicant in this proceeding have not been directed by or controlled by DPC.
On this basis, I find that the second respondent is not a proper or necessary party to this proceeding, and therefore the second respondent is removed as a party to this proceeding pursuant to section 60A of the VCAT Act.
[12]
Because the applicant is unrepresented in this proceeding I do not expect that his documents would strictly conform to legal formatting to set out his points of claim and particulars. Nevertheless it is important that respondents can understand the claims made against them in order to respond to them appropriately. I have taken the applicant's application form and all the documents he has filed in support of his application into consideration.
As I am required to do, I have taken the applicant's claims at their highest. I have also proceeded on the basis that the Applicant will be able to prove the facts alleged in his claim.
As summarised above the respondents' submission is that in none of the incidents alleged by the applicant involving Victoria Police, were the police providing 'services' within the meaning of EO Act.
I have taken into consideration relevant decisions of VCAT and the Victorian Courts in the application of section 75 of the VCAT Act.
Relevantly, In Djime v Keanes[15] his Honour Justice Cavanough heard an appeal of a VCAT decision of Member Dea, in which he approved a summary of principles set out in Member Dea's decision. These were as follows:
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 [to] individuals who may suffer injury or harm [and] are likely to be services under the 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.
In the present case the applicant has not identified what, if any, service has been allegedly provided or refused to him in the course of the incidents he has described.[16] As outlined above there is authority for the view that conduct which is helpful or beneficial for the individual is likely to be a service when it is consistent with the interests or welfare of the individual, or to the relevant class of persons to whom the individual belongs.[17] Conduct that confers a benefit on the public at large , but not to the person or class of persons concerned will not be sufficient.[18] None of the alleged conduct of Victoria Police can be characterised as 'helpful or beneficial' to the applicant as individual or to a relevant class of person to whom the applicant belongs.
While I accept that the applicant believes he has been discriminated against by Victoria Police on the grounds of his disability, political opinion and other grounds during his involvement in public protests, I do not accept that the conduct he describes, even if it were proven, occurred within the provision of a service to him, nor in any other area or activity in which the EO Act prohibits discrimination.
Taking into consideration all of the material before me, and the principles set out by Member Dea and approved by His Honour Justice Cavanough, set out above, I am not satisfied that the allegations of the applicant involving Victoria Police, even if proven, occurred within the provision of goods and services defined in the EO Act.
The claims which the applicant has made against the first and third respondents are therefore misconceived and lacking in substance, and are dismissed pursuant to section 75 of the VCAT Act.
(Cavanough J); see also Bickle v State of Victoria (Victoria Police )[2020] FCA 168 at [20] (Snaden J).
[22]
[8] In a similar way in which "dealing with a bail application" could not be said to be "helpful or beneficial" and therefore the provision of a "service": Robinson v Commissioner of Police[2012] FCA 770; (2012) 292 ALR 702 at [178] and [179] (Yates J).
[12]Richards v Commissioner of Police[2010] WASAT 115. See also Mariani v NSW Police Force, State of NSW[2013] NSWADT 35 at [87] where the Tribunal held that attending an individual's home to enquire about compliance with bail conditions did not involve a service to that individual.
Van Niekerk v State of Victoria (Victoria Police), State of Victoria (Department of Premier and Cabinet), Chief Commissioner of Police (Human Rights) [2022] VCAT 1267 (2 November 2022)