Complainant 182023 v Director-General, Community Services Directorate (Discrimination) - [2025] ACAT 34

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMPLAINANT 182023 v DIRECTOR-GENERAL, COMMUNITY SERVICES DIRECTORATE (Discrimination) [2025] ACAT 34

DT 18/2023
Catchwords: DISCRIMINATION – Discrimination Act 1991 – whether acts and omissions of Child and Youth Protective Services constitute ‘services’ under Discrimination Act section 20 – if so, to whom are the services directed – consideration of factual circumstances – effect of section 23C introduced by Discrimination Amendment Act 2023

Legislation cited: Children and Young People Act 2008 ss 7, 8, 9, 349, 350, 354
Discrimination Act 1991 ss 4AA, 7, 8, 20, 23C, Dictionary
Discrimination Amendment Act 2023 ss 2, 5, 30, Schedule 1
Human Rights Act 2004 s 11
Human Rights Commission Act 2005 ss 53A, 53CA
Legislation Act 2001 ss 126, 142

Cases cited:Complainant 201707 v the Australian Capital Territory [2019] ACAT 1
Complainant 512022 v The Australian Capital Territory as represented by Canberra Health Services [2023] ACAT 66
Director-General, Community Services Directorate v BQ and KQ [2024] ACTCC 2
EIX20 v Western Australia(No 2) [2025] FCA 28
Elbashir v Canberra Institute of Technology [2024] ACAT 10
Hudson v The Australian Capital Territory [2021] ACAT 19
In the matter of an application for bail by SA [2010] ACTSC 114
IW v City of Perth (1997) 191 CLR 1
JH v Director-General, Community Services Directorate [2012] ACTSC 30
Pikula-Carroll v ACT Corrective Services [2023] ACAT 33 Rainsford v Victoria [2007] FCA 1059
Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770
Robinson v Commissioner of Police, NSW Police Force [2013] FCAFC 64
Secretary of the Department of Justice and Industrial Relations v Anti-Discrimination Commissioner (2003) 11 Tas R 324
Waters and Others v Public Transport Corporation (1992) 173 CLR 349

List of
Texts/Papers cited: ACT Law Reform Advisory Council, Review of the Discrimination Act 1991 (ACT: Final Report, 2015)
Explanatory Statement, Children and Young People Bill 2008
Explanatory Statement, Discrimination Amendment Bill 2022
Rees, Rice and Allen, Australian Anti-Discrimination and Equal Opportunity Law (The Federation Press, 3rd ed, 2018)

Tribunal:Senior Member J Kalokerinos
Date of Orders:  9 May 2025
Date of Reasons for Decision:      9 May 2025
Date of Publication:  16 May 2025
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 18/2023

BETWEEN:

COMPLAINANT 182023
Applicant

AND:

DIRECTOR-GENERAL, COMMUNITY SERVICES DIRECTORATE
Respondent

TRIBUNAL:Senior Member J Kalokerinos

DATE:9 May 2025

ORDER

The Tribunal orders that:

To the extent that the applicant has complained that the respondent unlawfully discriminated against them, the complaint is dismissed.
The parties are to lodge submissions within seven days of the date of this order if they have any objections to the publication of this decision, and the reasons for that objection, including identification of any relevant parts.
The matter is listed for further directions on 26 May 2025 regarding the applicant’s victimisation claim.
…………………………

Senior Member J Kalokerinos

REASONS FOR DECISION

Introduction

This claim relates to interactions between the applicant, Complainant 182023[1] and the respondent, the Community Services Directorate (the Directorate or the respondent). In a series of separate proceedings, the applicant has had resort to the ACT Childrens Court, the ACT Magistrates Court, the ACT Human Rights Commission and this tribunal.
[1] ‘Complainant 182023’ is a pseudonym used for the purposes of this decision.
Having read the complainant’s submissions and received their oral submissions in the hearing, it is clear to me that the applicant feels very aggrieved about how those events transpired. I have no doubt that they are very frustrated with how events transpired. However, the function of this tribunal is quite specific — it is to determine the discrimination complaint referred to the tribunal under section 53A of the Human Rights Commission Act 2005 (HRC Act). The applicant claims that they were discriminated against by the respondent.
This decision is concerned with a confined legal issue. At a directions hearing on 29 July 2024, the respondent applied to the tribunal to determine the specific matter of whether the acts and omissions complained of constituted ‘services’ under section 20 of the Discrimination Act 1991 (Discrimination Act). The respondent submitted that the determination of this issue at a preliminary stage could have significant consequences for the applicant’s case.
I have carefully considered the submissions and evidence of the parties and the applicable law and, for the reasons set out below, determined that the acts and omissions at the relevant time did not meet the definition of ‘services’ under the Discrimination Act. My answer may have been different if the relevant acts and omissions had occurred after amendments to the Discrimination Act which commenced on 11 April 2024 but that is not the case with which I was presented. As I have already indicated, I acknowledge the applicant’s frustration. The disposition of this aspect of the case does not however in and of itself also dispose of the applicant’s victimisation claim and the tribunal will list that matter for further directions.

The complaint

On 13 August 2022, the applicant complained to the ACT Human Rights Commission that the Directorate had discriminated against them. The complaint was detailed and was expressly framed to relate to events which occurred in 2016, 2020, 2021 and 2022.[2]
[2] Discrimination complaint form dated 13 August 2022
These dates are significant for two reasons. First, the date of the complaint (13 August 2022) was the last date of any relevant acts or omissions about which the applicant was entitled to complain. I have accordingly not given any consideration to matters alleged to have occurred or arisen after that date. Second, the law to be applied in such an application is, of course, the law at the time of the relevant events. The significance of these points will become more apparent later in these reasons.
The applicant’s complaint was that they were treated unfavourably because of their “disability Complex PTSD”, irrelevant criminal record, sex and subjection to domestic or family violence.[3] The applicant also indicated that they had been “victimised because I have made a discrimination complaint, spoken up about discrimination, or supported someone to make a discrimination complaint.”
[3] In their outline of claims filed with the tribunal on 26 September 2023, the applicant also claimed that they were treated unfavourably on the ground of their employment status (section 7(1)(f) of the Discrimination Act refers), contending that they were subjected to detriment by the respondent imposing contact restrictions of limiting contacts with their children to weekdays during business hours. I have disregarded this ground as it was not included in the applicant’s initial complaint to the Discrimination Commissioner and accordingly cannot be considered within this complaint.
In May 2023, the Discrimination Commissioner wrote to the applicant and the respondent, indicating that she had reviewed the applicant’s complaint and had decided to close the complaint on the basis that conciliation was unlikely to be successful as a means of resolving it.[4] The Commissioner informed the applicant of their right to require the Commission to refer the complaint to the ACT Civil and Administrative Tribunal (ACAT or the tribunal). The applicant subsequently requested that her complaint be so referred and the Human Rights Commission referred the applicant’s complaint to the tribunal on 5 June 2023.

The submissions and the interlocutory hearing

[4] Letter from Discrimination Commissioner to the applicant dated 31 May 2023

After the referral of the complaint to the tribunal, a series of directions hearings were held to prepare the matter for hearing.
On 29 August 2023, the tribunal made an order under section 39 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), prohibiting the publication of any matter contained in documents filed with the tribunal which could identify the applicant or their children.
The applicant’s outline of claims was submitted on 26 September 2023. Following a number of further directions hearings, the respondent asked the tribunal, constituted by another member, to determine the preliminary question of whether the relevant acts and omissions of the respondent were services for the purposes of section 20 of the Discrimination Act, given that the applicant’s case depended on the proposition that the respondent had unlawfully discriminated against them through its provision of services or facilities (and refusing to provide the same) within the meaning of section 20 of the Discrimination Act. The tribunal made orders on 29 July 2024 for the parties to provide submissions on this question and submissions were received from the applicant on 12 August 2024 and the respondent on 17 October 2024. The Tribunal held a hearing on 8 November 2024 where both parties made oral submissions and evidence was given by a Senior Director in Children, Youth and Families in the Directorate. Further written submissions were provided after the hearing - from the applicant on 3 February 2025, from the respondent on 3 March 2025 and from the applicant on 17 March 2025. Evidence filed for this matter included witness statements from the applicant (dated 15 July 2024), the manager of the Birth Family Advocacy Support Service with the ACT Division of the Australian Red Cross (dated 20 September 2024) and the Senior Director in Children, Youth and Families in the Directorate (dated 16 October 2024).

What were the ‘services’?

One of the central issues to be determined in this matter was what ‘services’ or ‘facilities’ were provided and whether these met the definition of ‘services’ in the Act. This occupied a substantial proportion of the written and oral submissions. The applicant listed them, accompanied by further detailed narrative, in their submission of 3 February 2025. I have set them out below, using the language employed by the applicant in their submission:[5]
[5] Applicant’s submissions filed 3 February 2025, table at [14ff] (pages numbered 1-35)
(a)contact arrangements: staff of Child and Youth Protective Services (CYPS, or the Directorate) imposing restrictions on face to face contact and putting parameters on contact; setting parameters and suspending weekend contact, including against the recommendation of the Children’s Court; imposing restrictions and requirements on the respondent’s face to face contact with their children, limiting their access to a more appropriate facility; face to face contact; establishing conditions on face to face contact, communication about the applicant which was false and misleading about their disability; cancellation of community contact after contact workers’ physical intimidation of the applicant and failure to investigate allegations of physical assault and intimidation of contact workers against the applicant; deciding to cancel video contact sessions between the applicant and their children; reduction in face to face contact;
(b)CYPS Care Plans and deviation from policy in terms of communication or consultation with the applicant; preparing and implementing CYPS Care Plans, the way the applicant was ‘consulted’ – requiring them to falsely confess to harming their children in order to progress through a care plan;
(c)drafting and unilateral implementation of communications protocol;
(d)information sharing: sharing sensitive information regarding protected attributes through emails and meetings; sharing false and misleading information about the applicant to professionals for the purpose of obtaining expert evidence and reports based on the false impression created by CYPS in teleconference and failure to provide the service of correcting misinformation on file; sharing of sensitive information regarding multiple protected attributes in teleconference and retaining files containing information known to be false and prejudicial without correction; sharing of sensitive information such as ‘drugging and poisoning’ and not adhering to policies and frameworks for confidentiality of sensitive information in meetings and email communications; sharing non-existent criminal records, selection of care team, family and domestic violence and mental health, phone conversation and email correspondence, selection of care team not based on relevant expertise or involvement; email and telephone conversation, seeking to have a highly prejudicial expert report produced in circumstances where the expert has no relevant expertise;
(e)selection of declared care teams and exclusion of relevant treating professionals and exclusion of parent;
(f)assessments conducted by CYPS or their engaged professionals: arranging for a psychiatric assessment of the applicant, setting terms of reference, selecting the expert, provision of information to the expert, including false and misleading/prejudicial information, not providing materials given to the expert to the applicant in a timely manner and denying the applicant procedural fairness; denial of procedural fairness in appraisal interview, deviation from policy, blaming mental health for having conducted the meeting without consideration of policy or procedural fairness and selection and misrepresentation of information in 2021 family assessment; family and psychological assessment and arrangement of appointment, selection of expert, provision of material to the expert ahead of the meeting, including material which was false, prejudicial and misleading and provision of terms of reference to the expert ahead of the meeting; process in developing the CYPS family assessment, writing and selecting information to use in the assessment, including alarming false, misleading and prejudicial information, not including relevant and truthful information and minimal communication and consultation with the parent as part of this assessment;
(g)complaints to CYPS and the Directorate: receipt, consideration and outcome of complaint; level 2 complaint and review of complaint about the appraisal procedure, outcome, consideration and communication; further complaint and client services team, consideration and outcome, inappropriate file reference where making a human rights complaint against CYPS was pathologized as a risk to workers that the applicant might complain against them; level 3 complaint, procedure, significantly delayed processing time, outcome, misuse of the consideration of that complaint to deny the applicant procedural fairness;
(h)AFP referrals: allegations of medical abuse, of abuse at contact and of poisoning or drugging; failure to communicate with the applicant that the AFP investigation was not continuing and the referral had in fact been declined; despite the investigation not being ongoing and it being outside of policy, communicating information that inferred that the applicant was under police investigation for offences against their child to foster carers, the school, the contact placement and others.

The legislative framework

As has been noted elsewhere, the statutory framework for discrimination complaints is complex.[6] This tribunal has previously noted that in most discrimination cases before it, the complainant is unrepresented, while institutional respondents are represented by solicitors and counsel.[7] Consistent with this, in this matter, the applicant was self-represented, while the respondents were represented by trained lawyers. In putting their case, the applicant expressed views, with some force, about the significant challenges they had faced in engaging with the respondent and with making their case.
[6] Rees, Rice and Allen, Australian Anti-Discrimination and Equal Opportunity Law (The Federation Press, 3rd ed, 2018), pages 86–87; ACT Law Reform Advisory Council, Review of the Discrimination Act 1991 (ACT: Final Report, 2015), pages 8–10
[7] Elbashir v Canberra Institute of Technology (Discrimination) [2024] ACAT 10 at [29]; Complainant 512022 v The Australian Capital Territory as represented by Canberra Health Services(Discrimination) [2023] ACAT 66 at [35], citing Pikula-Carroll v ACT Corrective Services [2023] ACAT 33 at [37]
In the ACT, discrimination matters are regulated by the Discrimination Act and the HRC Act, supplemented by the common law. Section 7 of the Discrimination Act provides that the Act applies to discrimination on the ground of a number of “protected attributes”. These include, relevantly, disability,[8] sex,[9] irrelevant criminal record,[10] and subjection to domestic or family violence.[11] The applicant referred to each of these in their discrimination complaint. Because the matter proceeded to be dealt with on the preliminary question of the meaning of ‘services’, the applicant was not cross-examined about these. For the purpose of the interlocutory question, the Tribunal has proceeded on the basis that the applicant held these protected attributes, without deciding.
[8] Discrimination Act s 7(1)(e). Disability is defined in section 5AA of the Act to mean, inter alia, “a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour”.
[9] Discrimination Act s 7(1)(u)
[10] Discrimination Act s 7(1)(k)
[11] Discrimination Act s 7(1)(x)
Section 8 of the Discrimination Act provides that discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
‘Direct discrimination’ occurs if a person “treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes”.[12] That is, for direct discrimination, a complainant must show that the protected attribute was the true basis or real reason for the unfavourable treatment.
[12] Discrimination Act s 8(2)
‘Indirect discrimination’ occurs if a person “imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.”[13] However, section 8(4) of the Discrimination Act provides that “a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.” Section 8(5) provides:
In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include—
(a)     the nature and extent of any disadvantage that results from imposing the condition or requirement; and
(b)     the feasibility of overcoming or mitigating the disadvantage; and
(c)     whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposes to impose, the condition or requirement.
[13] Discrimination Act s 8(3)
Part 3 of the Discrimination Act sets out the forms of behaviour which constitute unlawful discrimination. Section 20 of the Act — “Goods, services and facilities” — provides that:
It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person—
(a)by refusing to provide those goods or services or make those facilities available to the other person; or
(b)in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or
(c)in the way in which the provider provides those goods or services or makes those facilities available to the other person.
Section 53CA of the HRC Act specifies the onus in establishing a discrimination complaint before ACAT, and subsection 53CA (2) makes clear that the applicant bears that onus:
53CA       Onus of establishing complaint about discrimination etc
(1)     This section applies to a discrimination complaint, referred to the ACAT under this division, about discrimination by a person against another person by—
(a)treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person (direct discrimination); or
(b)imposing, or proposing to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because of a protected attribute of the other person (other than a condition or requirement that is reasonable in the circumstances) (indirect discrimination).
(2)     It is a rebuttable presumption that discrimination has occurred if the complainant—
(a)establishes that—
(i)for a complaint about direct discrimination—the treatment or proposed treatment is unfavourable; and
(ii)for a complaint about indirect discrimination—the condition or requirement has, or is likely to have, an effect of disadvantaging the other person; and
(b)presents evidence that would enable the ACAT to decide, in the absence of any other explanation—
(i)for a complaint about direct discrimination—that the treatment or proposed treatment is because of a protected attribute of the other person; or
(ii)for a complaint about indirect discrimination—that the effect of disadvantaging the other person is because of a protected attribute of the other person.
(3)     The presumption under subsection (2) is rebutted if the person complained about establishes that—
(a)for a complaint about direct discrimination—the treatment is not because of a protected attribute of the other person; or
(b)for a complaint about indirect discrimination—the effect of disadvantaging a person is not because of a protected attribute of the other person.
NoteThe onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see Discrimination Act 1991, s 70).
(4)     In this section:
protected attribute means a protected attribute under the Discrimination Act 1991.
Was there discrimination against the applicant?

Accordingly, the onus is on the applicant to establish the services, and this must be done with a degree of precision.[14] To establish that direct discrimination occurred under the Act, in this matter, the applicant would need to show that because of the applicant’s protected attributes, the respondent:
(a)refused to provide services or make facilities available to the applicant (section 20(a));
(b)discriminated against the applicant in the terms or conditions on which the respondent provided the services to the applicant (section 20(b)), or
(c)discriminated against the applicant in the way in which it provided the services or made its facilities available to the applicant (section 20(c)).
[14] Complainant 201707 v the Australian Capital Territory [2019] ACAT 1 at [80], citing Waters and Others v Public Transport Corporation (1992) 173 CLR 349 at 404 – 405
To establish indirect discrimination, the applicant would need to show that the respondent imposed (or proposed to impose) a condition or requirement on the applicant in one of the above circumstances that had the effect of disadvantaging them because of one or more of their protected attributes, where it was not reasonable to impose that condition in the circumstances.
The central issues to be determined for this interlocutory matter are first, whether the actions and omissions of the respondent constituted ‘services’ for the purposes of section 20 and if so, second, whether they were provided to the applicant. I will deal with these matters in turn.

The meaning of ‘services’ for the purposes of the Discrimination Act

The definition of ‘services’ contained in the Dictionary to the Discrimination Act is an inclusive, not an exhaustive one. It includes, relevantly, at paragraph (e), “services provided by a government…”. The issue before the Tribunal of what functions delivered by government can be properly characterised as services is one which has been the subject of consideration by courts and tribunals in a range of different contexts. It is not a matter to be determined solely by examining the nature of the government entity, but the specific functions and their specific factual contexts require consideration in order to determine whether they comprise services for the purpose of the Discrimination Act. In making this determination, it is instructive to look to earlier cases under the Discrimination Act, as well as precedents from other jurisdictions, and principles drawn from those precedents.
The applicant submitted that their claim related not only to ‘services’ provided by the respondent under section 20 but also to ‘facilities made available’ by the respondent under that section. For convenience in my reasons below I refer to ‘services’ under section 20 but my analysis also applies to the respondent’s making facilities available.[15] I am also cognisant that section 4A of the Discrimination Act provides that the doing of an act includes failing to do the act.
[15] In EIX20 v Western Australia(No 2) [2025] FCA 28 at [104], Banks-Smith J observed that in Rainsford v Victoria [2007] FCA 1059, Sundberg J noted that there was no relevant difference in that particular case in describing the particular activities as a service or facility and that nothing seemed to turn on it in the EIX20 matter. I do not think there is any material significance in the distinction in this case. I adopt the respondent’s submissions in this regard: Respondent’s submissions filed 3 March 2025 at [30] – [33]
Analysis of the meaning of ‘services’ is informed by cases under the Discrimination Act, but also by cases interpreting like provisions under anti-discrimination legislation in other jurisdictions. Both parties cited the case of IW v City of Perth and Others (1997) 191 CLR 1 (IW) in their submissions. IW dealt with the meaning of ‘services’ in the context of a discrimination claim brought by a group of people with AIDS which had been denied planning approval for a drop-in centre, where it was alleged that they had been discriminated against by the council’s planning decision. The question was whether a council engaged in planning decisions was engaged in the provision of a ‘service’. Examination of IW discloses multiple differing opinions as to how ‘services’ was to be understood. According to Brennan CJ and McHugh J, such provisions are:
…to be given a ‘fair, large and liberal’ interpretation rather than one which is literal or technical’. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.[16]
[16] IW v City of Perth and Others (1997) 191 CLR 1 at 11
The reference to a ‘fair, large and liberal’ interpretation is consistent with section 4AA of the Discrimination Act which provides that the act must be interpreted in a way which is beneficial to people with protected attributes. Of course, this interpretation principle must be read in light of the express provisions of the statute, including the various definitions of discrimination which occur in the legislation and are often rigid and highly complex.[17] The task remains one of statutory construction.[18]
[17] IW v City of Perth and Others (1997) 191 CLR 1 at 12
[18] IW v City of Perth and Others (1997) 191 CLR 1 at 12
The Rainsford series of cases concerned an applicant who brought claims arising out of a period when he was incarcerated, relating to transport and other incidents of his incarceration. In Rainsford v Victoria [2007] FCA 1059, Sundberg J observed that some, although not all, government functions are services. His Honour accepted that whether the relevant act involves helpful or beneficial activity is a useful test, but qualified that by noting that the question is whether the act is helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs.[19]
[19] Rainsford v Victoria [2007] FCA 1059 at [73]
As was noted recently in recently by Banks-Smith J in EIX20 v Western Australia(No 2) [2025] FCA 28 at [100] ff, Sundberg J undertook a process of identifying the relevant activities, and found, respectively, in respect of the submissions that transport and accommodation were services:
…transport is an inherent part of incarceration. Prisoners on remand must attend court for their hearings. Prisoners in low-security prisons who are reclassified must be moved to higher-security prisons. The prison system simply could not function without prison transport. 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.[20]
The accommodation of prisoners in cells within the prison system is similarly an inherent part of incarceration. Prisoners must be housed somewhere within the prison system and that this is so demonstrates that for a prisoner to have a cell is not a helpful or beneficial activity so far as the prisoner is concerned. Insofar as there is choice in the allocation of prison cells, it is a purely administrative and prison management matter. It does not, of itself, provide prisoners with a benefit. Rather, it is better described as being 'part and parcel of the exercise of a statutory duty and cannot be described as the provision of a service or services', to adopt the words of Underwood J in Secretary of the Department of Justice and Industrial Relations v Anti-Discrimination Commissioner (2003) 11 Tas R 324 at 341.[21]
[20] Rainsford v Victoria [2007] FCA 1059 at [77]
[21] Rainsford v Victoria [2007] FCA 1059 at [78]
Sundberg J’s decision was upheld on appeal to the Full Federal Court, but the appeal court expressly noted in obiter that “although the meaning of 'service' is not simple to resolve, and the matter was not argued in depth, we see some strength in the view that the provision of transport and accommodation, even in a prison, may amount to a service or facility.”[22]
[22] Rainsford v Victoria [2008] FCAFC 31 at [9]
Counsel for the respondent also drew the tribunal’s attention to the Robinson cases (Robinson), where the Federal Court held, at first instance[23] and confirmed on appeal,[24] that a decision to grant bail to a person - including ‘considering and disposing of’ a bail application or ‘considering whether to exercise the discretion to grant or refuse bail’ – does not constitute a service. On appeal, the Full Court of the Federal Court noted that the primary judge (Yates J), citing IW, held that it does not follow from the fact that the public or a section of the public benefits from an activity that, in a given case of alleged discrimination, a service is relevantly involved.[25] In a passage also cited by the appeal court in Robinson, Yates J put it the following terms:[26]
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] 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”. See also Rainsford 167 FCR 1 at [78].
[23] Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770
[24] Robinson v Commissioner of Police, NSW Police Force [2013] FCAFC 64
[25] Robinson v Commissioner of Police, NSW Police Force [2013] FCAFC 64 at [93]
[26] Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 at [180], cited on appeal in Robinson v Commissioner of Police, NSW Police Force [2013] FCAFC 64 at [97
In Hudson v The Australian Capital Territory [2021] ACAT 19 (another case stemming from ‘services’ provided to an incarcerated person), Presidential Member Robinson found that:
On balance, the authorities suggested that a distinction could be drawn between the mere performance of a statutory function, and the performance of a statutory function which is at the same time something that is helpful or beneficial to the person receiving it. The latter may be a service under the Discrimination Act, the former will not be, particularly when done in the context of a coercive legislative scheme, such as that established by the CM [Corrections Management] Act.[27]
[27] Hudson v The Australian Capital Territory [2021] ACAT 19 at [91]
Presidential Member Robinson went on to note that the Victorian authorities suggest that reasonable limitations on detainees’ rights, where necessary for the security and management of a prison, are consistent with an interpretation of the corrections legislation that pays appropriate regard to section 44A of the Human Rights Act.[28]
[28] Hudson v The Australian Capital Territory [2021] ACAT 19 at [92]. The reference to section 44A of the Human Rights Act 2004 may be a transcription error and instead intended to be a reference to section 4AA of the Discrimination Act. The Human Rights Act 2004 does not contain a section 44A.
Turning to the current proceeding, both parties provided detailed submissions on the characterisation of the subject activities and the application of policies of the respondent and a range of court and tribunal decisions.
The respondent submitted that the following passage from the joint judgment of Brennan CJ and McHugh J in IW at [17] was wholly on point:
The granting or refusal of an application was the end product of a deliberative process. Approval of an application no doubt conferred a benefit on an applicant. But it misdescribes the process to say that the Council provided a service of giving approvals. Certainly the process was not an “exercise of a discretion to give planning approval to allow the use of premises for a particular purpose in a specific locality.”[29]
[29] Respondent’s submissions filed 17 October 2024 at [16]
These observations are also applicable in this case.
Using the applicant’s classification of activities in their submission, I have set out the activities and my characterisation of them below:[30]
[30] For convenience, in this part of the decision I have only set out the heading of each activity and in some cases some further summary information for context. A fuller description, utilising the applicant’s own language and classification drawn from their submissions, is set out at paragraph [12] of these reasons above.
(a)contact arrangements: CYPS set parameters and imposed restrictions on the applicant’s face to face contact with their children and determined the location of contact. In my view, the establishment of contact arrangements is, to adopt the language of Sundberg J in Rainsford, and consistent with the respondent’s submissions,[31] a fundamental integer of the child protection system over which the applicant could, in the circumstances, have no, or almost no, control (importantly, control is, for this purpose, to be distinguished from influence). Adapting the words of Yates J in Robinson, I characterise this activity as the exercise of government authority, in the operation of the child protection system.[32] Put another way, in the words of Underwood J cited earlier, it is 'part and parcel of the exercise of a statutory duty and cannot be described as the provision of a service or services'.[33] It is an important element of the care and protection system, which would not be able to operate properly without various inherent activities offered and conducted for the children in care. It may be argued that their establishment was also conducted for the benefit of the applicant, but their dominant purpose and the motivating factor for their establishment was for the benefit of the children as part of the child protection system.[34] On balance, I do not find that their establishment constituted a service under section 20.
[31] Transcript of hearing dated 8 November 2024, page 15, lines 40-45
[32] Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 at [180]
[33] Secretary of the Department of Justice and Industrial Relations v Anti-Discrimination Commissioner (2003) 11 Tas R 324 at 341
[34] Later in these reasons I deal specifically with the question which arises if an activity can be considered to be a service, regarding for whose benefit it exists.
(b)CYPS Care Plans: In my view, the preparation of a care plan is also a fundamental integer of the child protection system over which the applicant could, in the circumstances, have no, or almost no, control. It is an important element of the care and protection system. The system would not be able to operate properly without various inherent activities offered and conducted for the children in care. I do not find that it was a service under section 20.
(c)drafting and implementation of communications protocol: In my view, the preparation and implementation of a communications protocol was also a fundamental integer of the child protection system over which the applicant could, in the circumstances, have no, or almost no, control. It is an important element of the care and protection system which would not be able to operate properly without various inherent activities offered and conducted for the children in care. Although it could be characterised as for the benefit of the applicant, I consider that any such benefit was incidental to the benefit of the children, with whom the dominant purpose or benefit lay, and furthermore, as pointed out in the respondent’s submissions, the benefit and protection of the respondent’s staff and their well-being, taken in response to the applicant’s alleged behaviour.[35] I do not find that it was a service under section 20.
(d)information sharing: the information sharing activities identified by the applicant were also a fundamental integer of the child protection system over which the applicant could, in the circumstances, have no control (as opposed to influence). They were an important element of the care and protection system without which the system would not be able to operate properly. They were “part and parcel of the exercise of a statutory duty and cannot be described as the provision of a service or services”. I do not find that they were a service under section 20.
(e)selection of declared care teams and exclusion of relevant treating professionals and exclusion of parent: the selection of declared care teams, including their composition, was also a fundamental integer of the child protection system over which the applicant could, in the circumstances, have no control (as opposed to influence). It was an important element of the care and protection system without which the system would not be able to operate properly. I do not find that it was a service under section 20.
(f)assessments conducted by CYPS or their engaged professionals: the conduct of these assessments was also a fundamental integer of the child protection system over which the applicant could, in the circumstances, have no control (as opposed to influence). It was “part and parcel of the exercise of a statutory duty and cannot be described as the provision of a service or services” and was an important element of the care and protection system without which the system would not be able to operate properly. I do not find that it was a service under section 20.
(g)complaints to CYPS and the Directorate: the handling of complaints is a fundamental incident of the proper management of a modern public sector entity in Australia. It is arguable that it is conducted for the benefit of the applicant, but it is also an inherent requirement and a by-product of the management of a government entity. On balance, I do not find that it was a service within the meaning of section 20.
(h)AFP referrals: the making of referrals is also a fundamental integer of the child protection system over which the applicant could, in the circumstances, have no control. They are “part and parcel of the exercise of a statutory duty and cannot be described as the provision of a service or services”. I do not find that they were a service under section 20.

The amendments to the Discrimination Act which commenced 11 April 2024 reinforce the foregoing conclusion

[35] Respondent’s submissions filed 3 March 2025 at [17] – [19]

As can be seen, the exercise of classifying whether some acts constitute ‘services’ under the CYP Act can be a fine one, capable of giving rise to differing views. However, amendments made to the Discrimination Act which took effect on 11 April 2024 serve to bolster the conclusions I have drawn.
In their submissions, the applicant drew attention to amendments to the Discrimination Act made by the ACT Legislative Assembly through the Discrimination Amendment Act 2023. Specifically, section 5 of that Act introduced section 23C to the Discrimination Act, which provides, relevantly:
23C Administration of territory laws etc
(1) It is unlawful for a public authority to discriminate against a person when administering a territory law, or an ACT government program or policy.
…
(3) In this section:
administering, a territory law or ACT government program or policy, includes exercising a function under the law or carrying out the program or policy.
function of a public nature—see the Human Rights Act 2004, section 40A.
public authority means any of the following:
(a) an administrative unit;
(b) a territory authority;
(c) a territory instrumentality;
(d) a Minister;
(e) a public employee;
(f) an entity whose functions are or include functions of a public nature, when it is exercising those functions for the Territory or an entity mentioned in paragraph (a) to (e) (whether or not under contract).

This provision commenced from 11 April 2024 and accordingly did not form part of the applicable law at the time of the relevant acts and omissions.
The Explanatory Statement to the Bill provides relevant context to this provision and the intent behind its introduction:
Section 23C will expand the areas of public life covered by discrimination protections to capture more areas of government decision-making and activity. This measure engages and promotes the right to family and children as it will allow families who experience discrimination in the context of government decision-making to bring a discrimination complaint. Whereas previously a person would not be able to make a complaint in circumstances where they were not directly in receipt of a ‘service’ being provided by government (for example where child protection action is taken against a parent), these areas of government action will now fall within the scope of public life.[36]
…
New section 23C (1) provides that it is unlawful for a public authority to discriminate against a person when administering a territory law or an ACT Government program or policy.
An ACT Government program or policy is a broad term that is intended to capture government functions and decision-making that go beyond the provision of services to an individual. For example, the conduct of child protection officer with respect to biological parents is intended to fall within scope of this section.[37]
…
Government activities are currently only covered by discrimination law when they relate to employment, education, accommodation, access to premises and the provision of goods, services and facilities. It can unclear when the Government is providing a service to the public and there may be some activities that are not captured under these areas. The purpose of this amendment is to address these gaps and clarify that the performance of an ACT Government activity or function by a public authority is subject to discrimination protections.[38]
[36] Explanatory Statement, Discrimination Amendment Bill 2022, p 6
[37] Explanatory Statement, Discrimination Amendment Bill 2022, p 19
[38] Explanatory Statement, Discrimination Amendment Bill 2022, pp 20-21
It is amply clear from the Explanatory Statement that in introducing this amendment, the Legislative Assembly was seeking to close a gap and ensure that government activities were more comprehensively covered by the Discrimination Act.[39] Its intent with respect to the area of public administration with which this case is concerned could not be clearer. It specifically states that it:
promotes the right to family and children as it will allow families who experience discrimination in the context of government decision-making to bring a discrimination complaint. Whereas previously a person would not be able to make a complaint in circumstances where they were not directly in receipt of a ‘service’ being provided by government (for example where child protection action is taken against a parent), these areas of government action will now fall within the scope of public life.[40]
[39] The bill also made amendments to the CYP Act about proceedings in relation to discrimination complaints about care and protection matters under the CYP Act where the complaint is made in relation to the new section 23C provision: Schedule 1 to the Discrimination Amendment Act 2023 refers.
[40] Explanatory Statement, Discrimination Amendment Bill 2022, pp 6 and 19
This makes clear that in introducing these amendments, the Assembly was proceeding on the basis that the law as it stood at that time did not capture the situation with which this case is concerned, ie where child protection action is taken against a parent.
The applicant submitted that these amendments were made against a backdrop of uncertainty in support of an argument that this amendment was made to clarify the position.[41] Although this is one interpretation which may be drawn, in my view the Explanatory Statement is more definitive than that about the state of the law prior to the commencement of these amendments. I think that in stating explicitly that a person would not previously have been able to make a complaint where they were not directly in receipt of a service, and specifically citing child protection action taken against a parent as the sole example, the language of the Explanatory Statement is quite definitive that the these amendments are intended to capture child protection actions in relation to parents and that the Discrimination Act previously did not do so.
[41]Applicant’s submissions filed 3 February 2025 at [59] – [63]
If the actions and omissions complained of had taken place after 11 April 2024, my conclusion about the application of the Discrimination Act would likely have been different; however, that is not the case which was before the Tribunal. Accordingly, section 23C does not assist the applicant’s case, indeed it supports the position that the law as it stood at the time of the relevant events did not assist their case.
While not directly relevant to the consideration of the matter of the meaning of ‘services’, it is convenient at this point to note that the same bill also amended the Discrimination Act to introduce a positive duty to make reasonable adjustments.[42] In the course of their submissions, the applicant also submitted that the respondent was required by law to implement reasonable adjustments for the applicant.[43] However this duty also commenced in April 2024,[44] after the actions and omissions complained of had taken place.
The effects of other legislation
[42] Discrimination Amendment Act 2023, section 30, which introduced Part 9 ‘Positive duties’ to the Discrimination Act. This was a recommendation of the ACT Law Reform Advisory Council: ACT Law Reform Advisory Council, Review of the Discrimination Act 1991 (ACT: Final Report, 2015) at 43ff
[43] Applicant’s submissions filed 17 March 2025 at [61]
[44] Discrimination Amendment Act 2023, section 2
The applicant also submitted arguments that other statutory provisions operated to support their argument about the meaning of services.[45] In particular, the applicant cited section 354 (and the notes thereto) of the Children and Young People Act 2008 which provides that if a person believes or suspects that a child or young person is at risk of significant harm, a person may report the belief or suspicion, and the reasons for the belief or suspicion, to the director‑general. I do not think this provision has any relevance to the specific matter of whether the acts and omissions constitute ‘services’ under the Discrimination Act.
[45] Applicant’s submissions filed 3 February 2025 at [56] – [58]
The applicant also cited section 11 of the Human Rights Act 2004, which provides that the family is the natural and basic group unit of society and is entitled to be protected by society, and that every child has the right to the protection needed by the child because of being a child, without distinction or discrimination of any kind. In the circumstances, I do not think section 11 is of any material assistance to the applicant’s case. Section 11 is one of a series of provisions in the Act drawn from the International Covenant on Civil and Political Rights. It is a provision of a general nature and is, by virtue of that, intrinsically limited in its effect in interpreting section 20 of the Discrimination Act. I return to this point in paragraphs 58 and 59 of these reasons below.
Due regard must of course be given to the importance of the family unit and the entitlement to protection provided by section 11. However, in my view, it is arguable, prima facie, that any discrimination with which this provision could be concerned, would be primarily concerned with discrimination against a child as opposed to a parent. In the circumstances, beyond its mere assertion in the applicant’s submissions, it was not a matter which was pressed by the applicant or the subject of any argument. Although I have taken it into account in coming to my decision, I do not think it is a factor which provides significant assistance to the applicant’s case in their circumstances.

In the event that the acts and omissions were considered services, to whom were they provided?

In case it is considered that I am in error in my primary conclusion about the characterisation of the acts and omissions of the respondent as ‘services’ for the purposes of the Discrimination Act, the question arises about whom the ‘services’ were directed at, and it is desirable that I express conclusions about that.
In my view the relevant acts and omissions of the respondent were undertaken for the benefit of the children, not for the parent. Examination of the Children and Young People Act 2008 confirms this. First, the long title of the Act is “An Act about the welfare of children and young people, and for other purposes”. This confirms that the central concern of the Act is with the welfare of children and young people. Were it intended that its compass be broader to be also directed at the welfare of families or parents, it could have said so.
The “main objects” of the Act are set out in section 7, and every one of them is aimed at children and young people (emphasis added in bold):
7Main objects of Act
The objects of this Act include—
(a)providing for, and promoting, the safety, welfare and wellbeing of children and young people in a way that—
(i)recognises their right to grow in a safe and stable environment; and
(ii)takes into account the responsibilities of parents, families, the community and the whole of government for them; and
(b)ensuring that children and young people are provided with a safe and nurturing environment by organisations and people who, directly or indirectly, provide for their safety, welfare and wellbeing; and
(c)providing for children and young people to receive the care and protection necessary to protect them from significant harm by providing whole of government assistance to them, their parents and families, the community and others who have a responsibility for them; and
(d)ensuring that Aboriginal and Torres Strait Islander people are included and participate in—
(i)providing for, and promoting, the safety, welfare and wellbeing of Aboriginal and Torres Strait Islander children and young people; and
(ii)providing for Aboriginal and Torres Strait Islander children and young people to receive the care and protection necessary to protect them from significant harm; and
(iii)rehabilitating and reintegrating Aboriginal and Torres Strait Islander young offenders; and
(e)ensuring that services provided by, or for, government for the safety, welfare and wellbeing of children and young people—
(i)are centred on the needs of children and young people; and
(ii)are informed by processes which engage children and young people, wherever possible, and take their views and wishes into account; and
(iii)foster and promote the health, education, developmental needs, spirituality, self-respect, self-reliance and dignity of children and young people; and
(iv)respect the individual race, ethnicity, religion, disability, sexuality and culture of children and young people; and
(f)ensuring that young offenders—
(i)receive positive support and opportunities to become rehabilitated and reintegrated community members; and
(ii)share responsibility for rehabilitation and reintegration with their parents and families, the community and the government in partnership; and
(g)imposing standards that must be complied with for the delivery of services to children and young people; and
(h)ensuring the protection of children and young people in employment.
All of these main objects are directed at children and young people. Were it intended that its compass be broader to be also directed at the welfare of families and, more specifically, of parents, and thereby support an argument that some of the respondent’s functions could be considered services for parents, in my opinion this could have been made clear in this provision, but it is not.
This is reinforced by the succeeding section, section 8, ‘Best interests of children and young people paramount consideration’:
8Best interests of children and young people paramount consideration
(1)In making a decision under this Act in relation to a particular child or young person, the decision-maker must regard the best interests of the child or young person as the paramount consideration.
(2)In making a decision under this Act otherwise than in relation to a particular child or young person, the decision-maker must consider the best interests of children and young people.
Note 1For the criminal matters chapters (see s 91), there are further provisions about how a decision-maker decides what is in the best interests of a child or young person, see s 94 (Youth justice principles).
Note 2For the care and protection chapters (see s 336), there are further provisions about how a decision-maker decides what is in the best interests of a child or young person (see s 349).
(3)To remove any doubt, a reference in any section of this Act to the best interests of a child or young person does not limit this section.
This section, by its title[46] and its wording, particularly in subsections (1) and (2), leaves no doubt that the central, or ‘paramount’ consideration for decision-makers under the Act is directed at children and young people.
[46] Headings to provisions are available in interpreting provisions; under section 126 of the Legislation Act, a heading is part of the provision: JH v Director-General, Community Services Directorate [2012] ACTSC 30 at 21, cited in Director-General, Community Services Directorate v BQ and KQ [2024] ACTCC 2 at 56
In the circumstances of this case, note 2 to subsection 8(2) is also relevant. It points out to the reader that for the purposes of the care and protection parts of the Act, section 349 contains further provisions about how a decision-maker decides what is in the best interests of a child or young person.
Section 349 is in Part 10.3 of the Act – ‘Principles and considerations – care and protection chapters’. The notes to this part refer the reader back to section 8 and repeat that the paramount consideration of a decision-maker under the care and protection chapters is the best interests of the child or young person.[47] Subsection 349(1) also reinforces the objects of the Act in section 7 and the paramount consideration in section 8. Subsection 349(2) lists a series of factors that a decision-maker must also consider in ensuring that a child or young person is not at risk of significant harm. These include any views or wishes expressed by the child or young person (section 349(2)(a)), the nature of the child’s or young person’s relationship with each parent and anyone else (section 349(2)(b)) and several others. However, I do not think that the fact that these matters must be taken into account by a decision-maker derogates from the conclusion that decisions made under the Act are aimed at, and for the benefit of, children and young people. They do not assist an argument that officials discharging care and protection functions under the CYP Act provide ‘services’ within the meaning of the Discrimination Act to parents of the children or young people.
[47] See notes to Pt 10.3 of the Children and Young People Act 2008
The applicant cited section 350 of the Act (‘Care and Protection principles’) to ground a submission that the Act “mandates that ‘services’ should be provided not only to children but to their families”.[48] Subsection 350(1) lists a series of principles which decision-makers must apply, except when it is or would be contrary to the best interests of the child (emphasis added). I have added this emphasis to highlight that it once again draws attention to paramountcy provision of the Act – the interests of the child or young person are paramount. The applicant drew attention to the principles that “the primary responsibility for providing care and protection for the child’s or young person’s parents and other family members” (section 350(1)(a)) and that “priority must be given to supporting the child’s or young person’s parent and other family members to provide for the safety, welfare and wellbeing of the child or young person” (section 350(1)(b)). I do not think that this is a sufficiently strong statutory basis to support a successful argument that some functions under the Act, if they were able to be classified as services, could be considered to be directed at families or, more specifically, parents to the exclusion of children or young people.
[48] Applicant’s submissions filed 3 February 2025 at [30]
Two further aspects of section 350 confirm me in my view. First, paragraph 350(1)(e), which provides that “if the child or young person does not live with the child’s or young person’s parents because of the operation of this Act—the safety and wellbeing of the child are more important than the interests of the parents”. In my view this reinforces the ‘paramount consideration’ of the Act. Having construed the express words of the statute, it is convenient to refer to the Explanatory Statement to the bill which introduced this paragraph as it sought to clarify its intended operation and its interaction with human rights legislation. The Explanatory Statement to the Children and Young People Bill 2008 stated that:
A new principle has been included to emphasise that the safety and wellbeing of children and young people who have been removed from their parents is paramount over the interests of their parents. This principle seeks to balance the right of the child or young person to protection at section 11(2) of the Human Rights Act 2004 with the interests of parents and the right to protection of the family at section 11(1) of the Human Rights Act 2004.
The principles in this clause are to guide all decisions and actions made or taken under the Act, whether by the Chief Executive, Courts or otherwise.[49]
[49] Explanatory Statement, Children and Young People Bill 2008, pp 99 - 100. Of course, the effect of section 142 of the Legislation Act 2001, is that the explanatory statement to a bill may be considered in working out the meaning of an Act.
This makes clear that the Legislative Assembly’s intent in enacting this provision was to prioritise the ‘paramount consideration’ of the safety and protection of children, in full cognisance of the right to protection of family at subsection 11(1) of the Human Rights Act 2004.
I am confirmed in this conclusion by subsection 350(2), which provides, inter alia, that the care and protection principles in section 350 must be applied in addition to the principles under section 9. The principles in subsection 9(1) direct decision-making under the Act squarely and solely at children and young people:
9Principles applying to Act
(1)In making a decision under this Act in relation to a child or young person, a decision-maker must have regard to the following principles where relevant, except when it is, or would be, contrary to the best interests of a child or young person:
(a)the child’s or young person’s sense of racial, ethnic, religious, individual or cultural identity should be preserved and enhanced;
(b)the child’s or young person’s education, training or lawful employment should be encouraged and continued without unnecessary interruption;
(c)the child’s or young person’s age, maturity, developmental capacity, sex, background and other relevant characteristics should be considered;
(d)delay in decision-making processes under the Act should be avoided because delay is likely to prejudice the child’s or young person’s wellbeing.

Consideration of the respondent’s policies can also be of assistance in supplementing analysis of the statutory framework. The evidence of the Senior Director in Children, Youth and Families in the Directorate confirmed that the Directorate’s policies were also directed towards the benefit of the children.[50] The Senior Director cited the Directorate’s Contact Procedure document, which stated ‘Contact is about the rights of the child, not the rights of anybody else’ (emphasis in original).[51] The Contact Procedure is particularly pertinent given that much of the applicant’s case and evidence concerned contact meetings and arguments that they were a service directed at parents. To the extent that there was consultation and communication with the applicant in the instant case, I find that it was in support of the Directorate’s execution of its statutory functions directed at, and for the benefit of, the children, and that benefits to the parent (while, of course, important to the parent) were incidental to and in support of the benefits to the children.
[50] Witness statement of the Senior Director in Children, Youth and Families dated 16 October 2024 at [26]
[51] Witness statement of the Senior Director in Children, Youth and Families dated 16 October 2024 at [26] and Attachment B to the witness statement, ‘Contact Procedure’, p 3
This analysis is also consistent with the way in which the role of parents under the CYP Act was described by the ACT Supreme Court in a case concerning the CYP Act and the Human Rights Act. Penfold J stated (emphasis added):
It is apparent that the CYP Act focuses on the interests of children and young people, and that any conflict between the interests of a child or young person and those of his or her parents must be resolved in favour of the child or young person. To the extent that the CYP Act addresses the role of parents, it is in terms of their responsibilities to their children rather than their rights.[52]
[52] In the matter of an application for bail by SA [2010] ACTSC 114 at [35]
I have only been able to identify one other decision of the tribunal on the matter of whether decisions and actions under the CYP Act constituted ‘services’ under the Discrimination Act. The tribunal arrived at the same conclusion in that case. In Complainant 201707 v The Australian Capital Territory [2019] ACAT 1, the tribunal, comprised by Presidential Member MT Daniel (as she then was) and Member E Trickett (as she then was), noted that counsel had submitted that “in performing functions of information gathering, appraisal and taking emergency action caseworkers will almost invariably have contact with a parent, but do not under the legislation have any explicit responsibility regarding a parent. The focus of the legislation, it was submitted, is on the best interests of the child.”[53]
[53] Complainant 201707 v the Australian Capital Territory [2019] ACAT 1 at [86]
In that case, the tribunal found that activities of investigation, appraisal and emergency action were “not a service to a parent, but a statutory function to be exercised in the best interests of the child or children in question. These actions of staff were not services provided to the applicant and thus cannot constitute unlawful discrimination against him under the Act.”[54]

Conclusion

[54] Complainant 201707 v the Australian Capital Territory [2019] ACAT 1 at [89]

Consistent with the foregoing analysis, in the instant matter, if any of the respondent’s functions were considered to be services, I find that they were services directed at, or for the benefit of, the children (or in one case, the benefit of staff of the respondent), not the applicant, and accordingly cannot constitute unlawful discrimination against the applicant.
Although the applicant felt disadvantaged by a range of matters which they raised in their submissions, taken individually and collectively, the discrimination complaint in this case did not meet the complex technical standards required under the statutory framework to meet the relevant tests for direct or indirect discrimination. While a person may feel hurt, distressed or even harmed by events, that does not necessarily make it discriminatory conduct within the meaning of the Discrimination Act. Because the applicant’s case relied upon the proposition that the respondent’s relevant acts or omissions constituted ‘services’ under section 20 of the Discrimination Act, the complaint must be dismissed.

Victimisation complaint

The applicant submitted that, in the event that the events complained of fell outside the definition of services, they wished to continue with their complaint that the respondent had victimised them within the meaning of the Discrimination Act. The matter will be listed for further directions regarding the applicant’s victimisation claim.
………………………………

Senior Member J Kalokerinos

Date of hearing:	8 November 2024
Applicant:	In person, self-represented
Counsel for the Respondent:	Ms A Costin
Solicitors for the Respondent:	ACT Government Solicitor