1. In his application form for an order under the EO Act, the applicant claimed that on 31 October 2021 at around 12:30pm he and his daughter and partner arrived at Timezone Epping. On arrival, a manager asked that they check in and show their vaccination certificates. The applicant stated that he informed the manager that it was illegal to ask any person for their medical information, which is a private matter. The applicant referred to a number of acts including the EO Act, Australian Human Rights Commission Act 1986, Biosecurity Act 2015, Disability Discrimination Act 1992, Privacy Act 1988 and section 51(xxiiia) and section 109 of the Australian Constitution.
2. The applicant stated that he was then informed they would call security if the applicant and his family refused to show their vaccination proof. The applicant then went inside and was allowed to buy credits to play games and continued to play games. A few minutes later, the applicant was approached by Epping Plaza Security who told him that although they understood and knew the laws, they were instructed to disobey those laws and simply obey the State Government of Victoria's directions. The applicant stated that not only were they aware of the Federal and constitutional implications of what they were doing, they were actively ignoring the law and doing what the politicians told them. The applicant stated that he told them he would bring the matter to court, but they didn't seem to care much.
3. In his application form the applicant claimed discrimination, authorising or assisting discrimination, prohibition on requesting discriminatory information, and victimisation. The applicant indicated he was seeking an apology and fines for the companies who forced their employees to act in such a disgusting manner.

FIRST RESPONDENT'S WRITTEN SUBMISSIONS FOR SUMMARY DISMISSAL

1. In their written submissions filed on 27 June 2022, the first respondent submitted the applicant's application for an order under the EO Act should be summarily dismissed under section 75 of the VCAT Act because it was lacking in substance, vexatious, and the first respondent had a good defence sufficient to warrant the summary termination of the proceedings.
2. The first respondent set out the allegations raised by the applicant in his application form, and then referred to relevant legislation and Public Health Directions. The first respondent submitted that the applicant had not identified any disability or physical feature within the meaning under the EO Act, and that he had not alleged he had disclosed any such disability or physical feature to the employees of the first respondent.
3. The first respondent submitted that vaccination status was not a disability or protected attribute as defined by the EO Act.
4. The first respondent submitted that even if vaccination status was considered a protected attribute under the EO Act, the applicant's decision to refuse to confirm his vaccination status rendered it impossible for the first respondent's employees to identify and therefore discriminate against the applicant on the basis of the applicant's vaccination status.
5. The first respondent submitted that under the Public Health and Wellbeing Act 2008 (Vic) (PHW Act) and the Open Premises Directions (Directions), the first respondent was legally obliged to require the applicant to show acceptable evidence recording that he was either fully vaccinated or an excepted person.
6. The first respondent submitted the Directions were an enactment within the meaning allocated to the term in the EO Act and, even if the Tribunal were to find the request constituted discrimination, the request was exempted from the operation of the EO Act under section 75(1). Accordingly, the applicant's allegations that the first respondent discriminated against him on the basis of his refusal to confirm his vaccination status, and the allegation of authoring or assisting discrimination, lacked any substance.
7. The first respondent submitted the applicant's view that the Directions infringed the EO Act or were otherwise unenforceable was misconceived.
8. In relation to the claim of requesting discriminatory information, the first respondent submitted that this claim had no legal basis. The first respondent submitted the applicant's vaccination status did not constitute information that could be used to form the basis of discrimination against the applicant.
9. In the alternative, the first respondent submitted that even if the Tribunal were to find the applicant's vaccination status did constitute information that could be used to form the basis of discrimination against the applicant, the information was reasonably required by the first respondent for compliance with the Directions, and therefore fell within the exception contained in section 108(1) of the EO Act.
10. In relation to the claim of victimisation, the first respondent submitted there were no facts contained in the application to support the allegation the first respondent victimised the applicant, as victimisation is defined in the EO Act.
11. The first respondent submitted the applicant had strongly held beliefs regarding the enforceability of the Directions, and that his application was at least in part, motivated by the improper purpose of harassing, annoying and causing detriment to the respondents with a view to punishing them for complying with the Directions.
12. The first respondent submitted that even when taken at its highest, the application for an order under the EO Act was both lacking in substance and vexatious, and that the first respondent was able to demonstrate a good defence sufficient to warrant the summary termination of the proceedings.

SECOND AND THIRD RESPONDENTS' WRITTEN SUBMISSIONS FOR SUMMARY DISSMAL

1. The second and third respondents submitted that the applicant's case was predicated on a misconceived belief that the respondents request to sight evidence of the applicant's COVID-19 vaccination certificate was illegal, and based on the State Governments of Victoria's directions rather than any valid law.
2. The second and third respondents submitted that the applicant was required to show proof of his COVID-19 vaccination status under the current public health directions issued under the PHW Act.
3. The second and third respondents submitted the Directions were issued by the Acting Chief Health Officer on 21 October 2021, exercising authorised emergency powers pursuant to section 200(1)(d) of the PHW Act.
4. The second and third respondents noted it was an offence under the PHW Act to refuse or fail to comply with a direction given under the public health order, unless the person has a reasonable excuse for refusing or failing to comply with the directions or requirement.
5. The second and third respondents referred to decisions of the Supreme Court of New South Wales and the Fair Work Commission which endorsed the proposition that public health orders issued by the state government are a form of delegated legislation which was valid in law.[1]
6. The second and third respondents submitted the Directions require that a patron who is not fully vaccinated or an excepted person must not enter or remain on the premises of an open premises within the meaning of the Directions; and that a patron must show a person working at the premises acceptable evidence that records that they are either fully vaccinated or an excepted person within the meaning of the Directions.
7. The second and third respondents submitted the applicant's application under the EO Act was misconceived and had no reasonable prospects of success, because the applicant was required to provide evidence of his COVID-19 vaccination status and was refused entry to the Timezone premises in accordance with the Directions, and the Directions constituted valid law.
8. The second and third respondents also submitted the applicant's discrimination claim was lacking in substance because the applicant had not alleged facts to establish:
   • the existence of a disability or physical feature within the meaning of section 6 of the EO Act;
   • that the respondents had knowledge of the applicant's alleged protected attributed of "disability" or "physical features";
   • the requisite nexus between the applicant's alleged protected attribute and the alleged unfavourable treatment by the respondents;
   • that the respondents authorised or assisted in discriminating against the applicant on the basis of his alleged protected attributes;
   • that the respondents requested discriminatory information from the applicant; and/or
   • that the applicant was subjected to victimisation by the respondents.
9. The second and third respondents submitted that the applicant's case, even taken at its highest, alleged he was subjected to unfavourable treatment on the basis of his vaccination status, however he failed to allege any facts which establish that he possessed a relevant protected attribute as defined by the EO Act.
10. The second and third respondents submitted that the Victorian Equal Opportunity and Human Rights Commission had published guidance that stated that if a person's reasons for not wanting the vaccine was not linked to a protected attribute under the EO Act, then that would not be discrimination, and that there is no protected attribute in the EO Act that directly protected a person from discrimination based on their vaccination status or their opposition to vaccines.
11. The second and third respondents submitted that the applicant had not identified any factual matters that established a causal nexus between the applicant's purported disability or physical features and the alleged unfavourable treatment, nor how the respondents would have had any knowledge of his disability or physical feature.
12. The second and third respondents submitted there were no alleged facts which established the applicant informed the respondents that he had a disability or physical feature, which meant that he could not receive a COVID-19 vaccination, or that he had provided evidence of his vaccination status in accordance with the Directions.
13. The second and third respondents also submitted that even if discrimination had occurred (which they deny), they have a complete defence because the Directions and PHW Act required and authorised the respondents to request evidence of COVID-19 vaccination status from the applicant, and to prevent entry onto the relevant premises if he failed to provide such evidence.
14. The second and third respondents submitted the applicant's discrimination claim was manifestly groundless because it had no reasonable prospects of success, and there was no factual basis for the applicant's claims that he had been unlawfully discriminated against.
15. The second and third respondents submitted that alternatively, if the Tribunal did not summarily dismiss the proceeding as a whole, it should strike out the claims that related to victimisation and requests for discriminatory information, because the applicant had not identified the basis upon which he claimed that he has been subject to victimisation.
16. The second and third respondents submitted the applicant had failed to allege any facts to establish:
    • the applicant had taken any of the actions specified in section 104 of the EO Act, and
    • the respondents had treated or threatened to treat the applicant in a detrimental manner because the applicant had taken any of the actions specified in section 104 of the EO Act.
17. In relation to the applicant's claims relating to requests for discriminatory information, the second and third respondents submitted that those claims should be struck out because the information requested was reasonably required for the purposes of ensuing compliance with the Directions, and not for the purpose that involved prohibited discrimination.

APPLICANT'S WRITTEN SUBMISSIONS IN RELATION TO SUMMARY DISMISSAL

1. In his written submissions the applicant stated his position was that the PHW Act was never lawful, and the Act itself was not complied with by the Health Departmental Secretary or the Chief Health Officer of Victoria (CHO).
2. The applicant submitted the onus was on the respondents to prove the Directions were enacted according to the PHW Act, and that the requests for discriminatory information was then required.
3. The applicant submitted that he was asked to provide information that would be used to discriminate against him contrary to section 107 of the EO Act.
4. The applicant submitted section 108 of the EO Act stated that the person who requests or requires another to supply information has the burden of proving the information was required for the purpose that does not involve discrimination.
5. The applicant submitted that as the information was used to discriminate against him, the respondents needed to show why this information was required.
6. The applicant submitted that the respondents must prove to the Tribunal that the Directions were lawful under the PHW Act, otherwise they simply acted in accordance with directions from the government without any lawful reasons.
7. The applicant submitted it was the responsibility of the respondents to prove that they were in compliance with directions issued lawfully under the PHW Act, in order for them to justify seeking discriminatory information using the PHW Act as justification.
8. The applicant questioned if there were sufficient grounds to make the Directions, and submitted that the State of Emergency was unlawful and that the PHW Act had no proper basis in law.
9. The applicant submitted that there was no proper or lawful declaration of a State of Emergency, and that the CHO had failed to comply with obligations set out in the PHW Act and did not have sufficient evidence to petition the Minister for Health to declare a State of Emergency.
10. The applicant submitted that the Secretary had insufficient evidence, and had failed to adhere to guiding principles, and had failed to consider or establish or identify relevant considerations as required under the PHW Act, and had overreached authority.
11. The applicant submitted the measures proposed by the Secretary were not aimed at, and failed to, improve the health and wellbeing of Victorians. The applicant submitted the Secretary failed to give due consideration to the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) and the International Covenant on Civil and Political Rights.
12. The applicant submitted the PHW Act impinged on the constitution, and the Act was void and did not bind the people of Australia. The applicant submitted the CHO erred in assuming a State of Emergency was declared, and had failed to comply with the PHW Act, and failed to give due consideration to the guiding principles of the PHW Act and the Charter. The applicant submitted there was insufficient grounds to authorise officers under the PHW Act.
13. The applicant submitted that the PHW Act was not complied with by the Secretary or the CHO, and therefore the State of Emergency and subsequent restrictions were unlawful at the time the respondent claimed to have to comply with the PHW Act to discriminate against the applicant.
14. The applicant sought damages for the humiliation inflicted upon him in front of his family members. The applicant noted Timezone still sold him credits for the arcade and were happy to take his money and then proceeded to discriminate against him in the most egregious ways. The applicant sought a public apology and the termination of the employment of the manager and staff involved, as well as the legal representatives that approved the discriminatory policies.

SECOND AND THIRD RESPONDENTS' WRITTEN SUBMISSIONS IN REPLY TO APPLICANTS WRITTEN SUBMISSIONS

1. On 7 November 2022, the second and third respondents filed a response to the applicant's written submissions.
2. The second and third respondents submitted the application for orders under the EO Act was manifestly groundless and an abuse of process. The applicant had not provided any particulars of the claims of unlawful discrimination and victimisation, and erroneously submitted the respondents must prove the lawfulness of the Directions.
3. The second and third respondents submitted the applicant had sought to weaponize the Tribunal process in furtherance of his philosophical or political opposition to the actions of the Victorian Government, and that the Tribunal was not the forum for such matters.
4. The second and third respondents submitted that the lawful exercise of emergency powers confirmed by the PHW Act on the CHO and other authorised officers to issue Directions during a State of Emergency had been affirmed by the Supreme Court of Victoria in Loielo v Giles [2020] VSC 711; 63 VR 1 at [111] to [132].
5. The second and third respondents submitted that the contention the respondents had the onus of proof to establish the Directions were lawful was baseless and misguided. The second and third respondents referred to the common law presumption of validity, and the common law presumption of constitutionality, and relevant case law.
6. The second and third respondents also submitted the PHW Act was validly enacted and received royal assent on 2 September 2008 and commenced on 1 January 2010.

1. At the hearing of the application for summary dismissal held on 10 November 2022, I discussed the application and written submissions with the applicant and respondents.
2. In relation to the claim about requesting discriminatory information, the applicant submitted that the EO Act did not require a request for discriminatory information to be specifically about the attributes protected by the EO Act.
3. The applicant stated that the prohibition on requests for discriminatory information did not refer to attributes, it was about any information which could be used to discriminate against a person. The applicant submitted the prohibition on requesting discriminatory information was about any information that could be used as a discriminatory tool, and in his case, it was information requested to stop him entering and using the facility.
4. When referred to the definition of discrimination as set out in the EO Act, the applicant told the Tribunal that the EO Act was not all encompassing in relation to covering every Act that could be discrimination.
5. In relation to the submissions which raise concerns that his application did not raise any claims or allegations or facts that meet the definition of victimisation under the EO Act, the applicant told the Tribunal he had nothing to add.
6. In relation to the submissions relating to section 75 EO Act, and things done with statutory authority, the applicant told the Tribunal the PHW Act was not enacted correctly and therefore it was not an Act that could be relied on.
7. In relation to submissions relating to section 108 of the EO Act, information required for purposes not involving prohibited discrimination, the applicant stated the only reason they requested the information was for a discriminatory action, and ignorance that the law was not enacted correctly was not a defence.
8. During the hearing the first respondent noted the applicant had referenced the Commonwealth Constitution in his submissions about the validity of the PHW Act. The first respondent noted the PHW Act was Victorian legislation and passed by the Victoria Parliament in accordance with the Victorian Constitution.
9. The first respondent requested the opportunity to submit a copy of the Victorian Government Gazette where the proclamation by the Victorian Governor was published confirming that legation received royal accent.
10. The first respondent also noted the applicant's submissions that the declaration of the State of Emergency by the Minister for Health was not valid because it did not use the exact words in section 99(1). The first respondent submitted that section did not require the declaration to incorporate every word in that subsection.
11. The first respondent also noted the applicant's submissions that the CHO did not receive notice of the formal declaration. The first respondent sought leave to tender a copy of the relevant government gazette where the declaration was published.
12. I granted the first respondent the opportunity to provide further written submissions and documents by the end of the day.
13. At the conclusion of the hearing, I granted the applicant until 24 November 2022 to file any further written submissions in response for the Tribunal to take into consideration.

1. On 10 November 2022 the first respondent filed written submissions noting the applicant's submissions that the PHW Act must be enlivened and receive royal assent in accordance the Commonwealth of Australia Constitution Act.
2. The First Respondent submitted the PHW Act was an Act that was passed by the Parliament of Victoria pursuant to the Constitution Act 1975 (Vic) and that the representative of the Crown in the State of Victoria was the Governor of Victoria. The first respondent submitted the Governor of Victoria assented to the PHW Act in her majesty's name on 2 September 2008 and the relevant proclamation was published at page 2072 in General Gazette No. G 36 on Thursday 4 September 2008. The first respondent attached a copy of the relevant General Gazette.
3. The first respondent also submitted, in relation to the applicant's submissions that the CHO did not receive formal written notice of the Declaration of a State of Emergency issued by Jenny Mikakos in her capacity as the Minister for Health on 16 March 2020, that the declaration was published in Special Gazette no, S 129 on Monday 16 March 2020, and attached a copy of the relevant Special Gazette.
4. The first respondent also submitted the Declaration of Emergency was subsequently extended on numerous occasions and remained in force at the time the Open Premises Directions issued on 21 October 2021. The first respondent attached a copy of the extension of declaration of a State of Emergency that took effect on 21 October 2021.
5. The Applicant did not provide any further written submissions despite the opportunity to do so.

ASSESSMENT OF THE APPLICATION FOR SUMMARY DISMISSAL UNDER SECTION 75 OF THE VCAT ACT

1. Section 75(1)(a) of the VCAT Act states that, 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 is frivolous, vexatious, misconceived or lacking in substance.
2. The principles that guide the Tribunal when considering an application for summary dismissal are well established. The Tribunal should exercise caution before summarily dismissing a proceeding because such action will have the effect of depriving a litigant of the opportunity to have his or her case decided in the ordinary course. This is of particular importance where the applicant is self-represented.
3. The Tribunal should only make an order summarily dismissing or striking out a proceeding when satisfied that, because of one of the grounds in section 75, the case is obviously hopeless, unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail. This includes, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action, or where a respondent can show a good defence sufficient to warrant the summary termination of the proceeding.[2]
4. The Tribunal's role in determining an application under section 75 is not to examine the evidence relied upon by the applicant but to proceed on the basis that the applicant will be able to prove all the allegations made in the claim. In an application under section 75 it is appropriate to assume the applicant will be able to prove each fact alleged in the claim.[3]
5. It is also established that VCAT should not order summary dismissal in circumstances where the outcome of the case might depend on findings of fact based on contested evidence.[4] In considering an application under section 75, the Tribunal must take the applicant's case at its highest.
6. As noted above, in the submissions and during the hearing, concerns were raised about whether the claims made by the applicant, even taken at their highest, could be considered prohibited discrimination, supporting or assisting discrimination, or engaging the prohibition on requesting discriminatory information, or victimisation, as proscribed by the EO Act.
7. In relation to the claim that the applicant had been discriminated against by the respondents on the basis of disability and physical features, I note that the meaning of discrimination is defined in section 7 of the EO Act which states:

7 Meaning of discrimination

(1) Discrimination means -

(a) direct or indirect discrimination on the basis of an attribute; or

(b) a contravention of section 17, 19, 20, 22, 32, 33, 40, 45, 54, 55 or 56.

1. Section 8 of the EO Act states direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.
2. Section 9 of the EO Act states indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice that has or is likely to have the effect of disadvantaging persons with that attribute and that is not reasonable.
3. Section 6 of the EO Act sets out the attributes on the basis of which discrimination is prohibited. That lists includes the attribute of disability and physical features.
4. In the applicant's application form, the applicant outlined the incident at Timezone and focused on being asked to check in and show vaccination certificates, and that he thought that it was illegal to do so.
5. The applicant has not claimed discrimination as a contravention of sections 17, 19, 20, 22, 32, 33, 40, 45, 54, 55 or 56.
6. While I note the applicant has claimed discrimination on the attributes of disability and physical features, he has not provided any evidence to indicate he has those attributes, or that the respondents were aware or thought he had those attributes, and treated him unfairly on that basis.
7. Vaccination status does not appear in the list of attributes set out in section 6 of the EO Act, and I do not accept the claim (implied or explicit) that vaccination status is an attribute on the basis of which discrimination is prohibited under the EO Act.
8. On the evidence before me, I find that the applicant's claims of discrimination on the basis of disability and or physical features are misconceived.
9. In relation to the claims that the respondents authorised or assisted discrimination, for similar reasons as set out above, I find that the applicant's claims are misconceived.
10. In relation to the claims based on the prohibition on requesting discriminatory information, I note section 107 of the EO Act states:

Section 107 Prohibition on requesting discriminatory information

A person must not request or require another person to supply information that could be used by the first person to form the basis of discrimination against the other person.

For the purpose of subsection (1), it is irrelevant whether the request or requirement is made orally, in writing, in an application form or otherwise.

1. I note that section 7 of the EO Act provides a specific definition and meaning of discrimination.
2. Section 107 does not refer to or provide a different or separate definition or meaning of discrimination in relation to that specific section.
3. For this reason, I do not accept the applicant's submissions that the discrimination referred to in section 107 of the EO Act is not discrimination as defined by the EO Act, but is broader, and that section 107 is a prohibition about asking for any type of information that could be used as a discriminatory tool.
4. I accept the respondents' submissions that the information referred to in section 107 of the EO Act is information that could be used to form the basis of discrimination as it is defined by the EO Act.
5. I do not accept a request to provide information in relation to vaccination status is a request for information that could be used to form the basis of discrimination as defined by the EO Act.
6. Therefore, I find that the applicant's claims in relation to the prohibition on requesting discriminatory information are misconceived.
7. In relation to the claims that the applicant has been victimised by the respondents, I note that section 104 of the EO Act states:

What is victimisation?

(1) A person victimises another person if the person subjects or threatens to subject the other person to any detriment because the other person, or a person associated with the other person -

(a) has brought a dispute to the Commission for dispute resolution; or

(b) has made a complaint against any person under the old Act; or

(c) has brought any other proceedings under this Act or the old Act against any person; or

(d) has given evidence or information, or produced a document, in connection with -

(i) any proceedings under this Act or the old Act; or

(ii) any investigation conducted by the Commission; or

(e) has attended a compulsory conference or mediation at the Tribunal in any proceedings under this Act or the old Act; or

(f) has otherwise done anything in accordance with this Act or the old Act in relation to any person; or

(g) has alleged that any person has contravened a provision of Part 4 or 6 or this Part, or Part 3, 5 or 6 of the old Act, unless the allegation is false and was not made in good faith; or

(h) has refused to do anything that -

(i) would contravene a provision of Part 4 or 6 or this Part; or

(ii) would have contravened a provision of Part 3, 5 or 6 of the old Act -

or because the person believes that the other person or the associate has done or intends to do any of those things.

1. The applicant has not stated or made any specific claims that he has undertaken any of the actions set out in section 104 of the EO Act prior to the current application, or that the respondents subjected or threatened to subject the applicant to any detriment because the applicant or a person associated with the applicant undertook those actions.
2. Therefore, I find the applicant's claims of victimisation are misconceived.
3. While I note there were other submissions and grounds for seeking summary dismissal under section 75(1) of the VCAT Act, given the above findings, it is unnecessary to assess them further.

1. As noted above, I find that the applicant's claims of discrimination, authorising or assisting discrimination, prohibition on requesting discriminatory information, and victimisation are misconceived.
2. I have concluded that the applicant's claims do not relate to discrimination, authorising or assisting discrimination, prohibition on requesting discriminatory information, and victimisation, as defined in the EO Act.
3. While I accept that the applicant wishes to pursue his complaints about what happened on 31 October 2021, even if the claims are taken at their highest, the application against the respondents for orders under the EO Act is bound to fail.
4. In my opinion, the applicant's proceeding under the EO Act is misconceived.
5. Therefore, the application for summary dismissal under section 75(1) of the VCAT Act should be granted, and the application made by the applicant against the respondents under the EO Act should be dismissed.

[1] Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299; Pope v Bacchus Marsh Realty Pty Ltd [2022] FWC 619 at [25].

[2] State Electricity Commission of Victoria v Rabel [1998] 1 VR 102.

[3] Owners Corporation No. 1 PS537642N v Hickory Group Pty Ltd (Building and Property) [2015] VCAT 1638, referring to Noonan v Owners Corporation No. 2 PS409115E [2011] VCAT 1934 [17].

[4] Campagnolo v Benalla and District Football League Inc [2009] VSC 228 [41].