It may well be that his Honour was confining those remarks to the two provisions, but I think that properly describes the whole of the s 64 process. I earlier noted that his Honour said s 64 involved a substantive assessment of a 'complaint' procedurally under s63. I agree. I venture to repeat what I said in State of Tasmania v Anti-Discrimination Tribunal [2009] TASSC 48, 19 Tas R 54 at [13]; viz, the exercise on which the Commissioner is embarked is that of a screening process, so that it is only complaints which appear to have such substance as to require them to be dealt with by conciliation or inquiry that are to be taken forward.

2. I accept the respondent's submissions that in its role as a "gatekeeper" pursuant to s 64 of the ADA, the ADC is conducting a screening process as to whether or not the complaint relates to, or concerns, discrimination and/or prohibited conduct in the sense that what is alleged is capable, if established, of amounting to discrimination or prohibited conduct.
3. In this case, the complainant's complaint did not progress through the gate as on the ADC's assessment, the matters alleged did not amount to discrimination or prohibited conduct as they did not relate to discrimination (see s 64(1)(a)) or where misconceived (see s 64(1)(b)).
4. With regard the ADC's rejection of the complainant's complaint on the basis of s 64(1)(a) the words 'misconceived' or 'lacking in substance' were considered by Brett J in Khalafallah v Tasmanian Civil and Administrative Tribunal [2023] TASSC 8.
5. In this decision, his Honour referred to the comments by Sir Ronald Wilson in his role as President of the Human Rights and Equal Opportunity Commission in Assal v Department of Health, Housing Community Services [1992] EOC 92 where at [409] he stated:

The claim which presents no more than a remote possibility of merit or which does no more than hint at a just claim would ordinarily, I think, be found to be lacking in substance.

6. Brett J also referred to the decision of von Doussa J in the Federal Court decision of Nagasinghe v Worthington [1994] FCA 1387. In this decision, von Doussa J agreed with Sir Ronald Wilson's formulations and restated it at [11] as "...whether there was material before the Inquiry Commissioner which indicated a real possibility of there being some connection between..." the allegation and the relevant act.
7. In Khalafallah v Tasmanian Civil and Administrative Tribunal (supra), Brett J also referenced the decision of Porter J in State of Tasmania v Anti-Discrimination Tribunal and Ors (supra), in which Porter J stated at [13]:

The exercise on which the Commissioner is embarked is that of a screening process, so that it is only complaints which appear to have such substance as to require them to be dealt with by conciliation, or if that is inappropriate for any reason set out in the ADA, s 78(1), to be the subject of an inquiry by the Tribunal. A complaint may be rejected at the initial stage for any reason set out in s 64(1). Of the matters set out in s 64(1)(a) three relate "to the insufficiency or to the absence of merit of the factual basis" whilst "misconceived" means "founded upon a wrong idea as to the facts." Langley v Niland (1981) 2 NSWLR 104 at [107].

8. The second basis of the rejection of the complainant's complaint was pursuant to s 65(1)(b) of the ADA which indicated that his complaint did not relate to discrimination or prohibited conduct.
9. As was stated by Deputy President Grueber in Elliot v Hobart City Council [2024] TASCAT 203 at [26]:

The phrase "does not relate to discrimination", s 64(1)(b) requires consideration of whether the matters complained of might amount to discrimination under the Act. The focus of s 64(1)(b) is on the complainant's case. It involves consideration of whether the complaint displays an insufficient connection to discrimination rather than a determination of whether discrimination has or has not occurred. It cannot mean a final determination that the conduct complained of amounts in fact and in law to discrimination. That is a matter for the Tribunal on inquiry. The functions of the Commissioner are listed in s 6 of the Act. They include to investigate and seek to resolve complaints, but not to conduct an inquiry.

10. In my view, there is merit in the respondent's submissions that the focus of the Tribunal on a review of rejection is whether or not the complaints have relevantly engaged the provisions of the ADA, rather than the respondent's alleged conduct.
11. The complainant emphasises that the documents requested will assist the Tribunal in arriving at the correct decision. The decision in question is however, and as stated by the respondent, whether the ADC was correct in rejecting the complaints or whether the complaints pass through the gate.
12. Applying this approach to what the complainant seeks, I accept the respondent's submission that the complainant's are indeed "putting the cart before the horse", as I find that the documentary material sought is that which would be relevant to an inquiry process pursuant to Part 6, Division 4 of the ADA.
13. The evidentiary material sought by the complainant is irrelevant to the question before the Tribunal as to whether the conduct alleged by the complaints is capable of amounting to discrimination or prohibited conduct.
14. The nature of the review process pursuant to s 72 of the ADA, now akin to that set out in s 75 of the TASCAT Act, has been settled following the decision of Porter J in State of Tasmania v Anti-Discrimination Tribunal and Ors [2009] TASSC 48 where at [47] his Honour stated:

When s 72 speaks of the Tribunal being satisfied or not that the Commissioner "made a correct decision", it means that the question whether the decision was the correct one on the material before the Tribunal. The extent of such material is to be governed by relevance.

15. Having considered the information sought by the complainant pursuant to the summons in pars 1.1-1.5, I find it is not relevant to the Tribunal's role in its review jurisdiction applying to the rejection of a complaint by the ADC. It follows that these parts of the summons requesting documents lack a legitimate forensic purpose.
16. This documentary evidence is clearly directed at issues going to the basis of the complainant's claim of discrimination and prohibited conduct, and are not relevant to the Tribunal's review of the rejection of the complaints by the ADC.
17. For these reasons, I set aside the part of the summons comprising pars 1.1-1.5. The respondent is not compelled to produce these documents to the Tribunal pursuant to the summons issued by the Tribunal on 25 June 2025.

Should the Tribunal have issued a summons in the Tribunal's review jurisdiction?

1. For the reasons set out in this decision, I do not need to consider whether or not the summons issued by the Tribunal should not have been issued in relation to a matter falling squarely within the Tribunal's review jurisdiction pursuant to s 75 of the TASCAT Act.

1. The part of the summons issued by the Tribunal on 16 June 2025 being the request for documents described in pars 1.1-1.5 inclusive is set aside.
2. A directions conference by Teams will be listed on notice to the parties.