JJ and DIRECTOR GENERAL, DEPARTMENT OF COMMUNITIES

[2022] WASAT 106

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION:   JJ and DIRECTOR GENERAL, DEPARTMENT OF COMMUNITIES [2022] WASAT 106

MEMBER:   MR J O'SULLIVAN, SENIOR MEMBER

HEARD:   8 JUNE 2022

WRITTEN CLOSING SUBMISSIONS 24 JUNE 2022

DELIVERED          :   30 NOVEMBER 2022

FILE NO/S:   EOA 21 of 2020

JJ

Applicant

AND

DIRECTOR GENERAL, DEPARTMENT OF COMMUNITIES

Respondent

Catchwords:

Unlawful discrimination on grounds of gender - Discrimination in the provision of goods and services - Section 8 and s 20 of Equal Opportunity Act 1984 (WA) - Meaning of 'services'

Legislation:

Anti-Discrimination Act 1977 (NSW)
Child (Care and Protection) Act 1987 (NSW)
Child and Community Services Act 2004 (WA), s 6, s 7, s 8, s 9, s 28, s 37, s 124B
Equal Opportunity Act 1984 (WA), s 3(a), s 4, s 5, s 8, s 20, s 66K(1)(c), s 89, s 90(1), s 90(2), s 107, s107(3), s 127
Income and Corporation Taxes Act 1970 (UK), s 10(1)
Interpretation Act 1984 (WA), s 18, s 19
Race Relations Act 1976 (UK)
Sex Discrimination Act 1975 (UK)
Stamp Act 1921 (WA)
State Administrative Tribunal Act 2004 (WA), s 32, s 32(2)(b), s 48
Tasmanian Anti-Discrimination Act 1998 (Tas), s 22

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	A Miller

Solicitors:

Applicant	:	N/A
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Australian Education Union v Human Rights & Equal Opportunity Commission and State of Tasmania (1997) 80 FCR 46

Briginshaw v Briginshaw (1938) 60 CLR 336

Chaisty v City of Perth [2004] WAEOT 3

Director General, Department of Community Services v MM (2003) NSWSC 1241

Edoo and Minister for Health [2010] WASAT 74

Farah v Commissioner of Police of the Metropolis [1998] QB 65

Grover v Commissioner of Police [2005] WASC 263

IW v City of Perth and Others (1997) 191 CLR 1

Jones v Dunkel [1959] HCA 8; 101 CLR 298

Meunier and Director General, Department of Communities [2021] WASAT 112

R v Entry Clearance Officer, Bombay; Ex parte Amin [1983] 2 AC 818

Rainsford v State of Victoria (2007) 167 FCR 1

Rainsford v State of Victoria (2008) 167 FCR 26

Richards and Commissioner of Police [2010] WASAT 115

Savjani v Inland Revenue Commissioners [1981] QB 458

Secretary of the Department of Justice and Industrial Relations v Anti-Discrimination Commissioner (2003) TAS R 324

Summerville and Department of Education & Ors [2006] WASAT 174

Tejani v Superintendent Registrar for the District of Peterborough [1986] IRLR 502 (CA)

Waters v Public Transport Corp (1991) 173 CLR 349

Wood v Calvary Hospital (2005) EOC 93-392

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. The applicant and S have two children J (born in 2013) and L (born in 2010).  The applicant says that in 2016 and 2019 he and J and L were left homeless after escaping domestic violence.  Inevitably, the breakdown of the applicant's relationship with S resulted in family court proceedings.

2. The many statements and documents provided by the applicant in this proceeding chronicle his allegations as to the way in which the Department of Communities (the Department), the Western Australian Police, the single expert witness, Legal Aid, Law Access and the Family Court of Western Australia have failed him and his two children.

3. The allegations span many years and variously accuse those entities of negligence, misconduct, bias, double standards, conflicts of interest, bullying, discrimination, victimisation and corruption.

4. For reasons which I will explain shortly this proceeding is confined to the period 30 December 2018 to 30 December 2019, and is only concerned with the allegations that the Department discriminated against the applicant in the provision of goods and services on the basis of sex in contravention of s 8 of the Equal Opportunity Act 1984 (WA) (the Act).

5. Accordingly, the purpose of this proceeding is to determine only whether the applicant has been treated less favourably in the provision of goods and services than the Department did or would have treated a female in the same circumstances, or circumstances that were not materially different.

6. I have encountered some difficulty in ascertaining with any precision the allegations of discrimination advanced by the applicant.

7. I have relied on the applicant's statement of circumstances and allegations[1] as this is the document submitted by the applicant on which the Commissioner for Equal Opportunity (Commissioner) relied, and to which the Department responded.

   [1] Hearing Book at pages 62-70.

8. Consistent with the headings used by the applicant, in general terms the allegations relate to:

   1)Accommodation for fathers and children;

   2)Support and advice for fathers and children;

   3)Allegations of abuse by women treated differently; and

   4)Men unfairly forced to take drug tests.

9. While cast in slightly different terms the Department's written closing submissions address matters 1-4 above in addition to two further matters:

   5)The manner in which the applicant's complaint was dealt with by Ms Slyvia Gulliver; and

   6)The provision of female caseworkers/staff in relation to the provision of the purported services identified in 1­5 above.

10. Out of an abundance of caution I have addressed all six of these allegations.

11. I note also that the applicant did not initiate this proceeding on behalf of his children as complainants.  As I understand the applicant's case, he alleges that J and L were disadvantaged as a consequence of the discrimination perpetrated against him by the Department.

12. Allegation 3 includes an allegation by the applicant that J was sexually molested by S's partner.  To ensure that J is not identified directly or indirectly, I have anonymised J's name together with that of the applicant, L and S.

13. Apart from the applicant who testified in support of his case, three witnesses were called by the Department:

    a)Kathy Middlemass;

    b)Ben Whitehouse; and

    c)Denise Marchese.

14. It is not in dispute that the applicant is not legally trained.  The applicant says he has been diagnosed with ADHD and takes medication.  It was obvious that he found the proceeding challenging.  As the Tribunal observed in Edoo and Minister for Health [2010] WASAT 74 (Edoo) at [49] acting for oneself in legal proceedings can be a difficult and stressful exercise, particularly for those who have no legal training. Although the Tribunal endeavours to ensure all litigants understand the procedures in the Tribunal, it is not appropriate for the Tribunal to provide a litigant with specific advice about the manner in which their case should be run. Subject to the need for the Tribunal to ensure fairness to an opposing party (which is reflected in provisions such as s 32 and s 48 of the State Administration Tribunal Act 2005 (WA) (SAT Act)) it is ultimately for a litigant to determine how to present their case to the Tribunal, and what evidence should be placed before the Tribunal in support of that case.

15. I endeavoured to ensure the applicant was aware of the procedures adopted by the Tribunal in dealing with cases under the Act. In particular it was pointed out to the applicant that he should give the Department's witnesses the opportunity to answer his criticisms of their evidence and to clarify or respond to any inconsistencies between his evidence and their own evidence. The applicant was also informed of the possible consequences of failing to do so.

16. As pointed out by the Tribunal in Edoo[2] although the rules of evidence do not apply to the Tribunal it remains incumbent on the Tribunal to act fairly to all parties to the proceedings before it (s 32(2)(b) of the SAT Act).

    [2] Edoo at [51].

17. To that end I determined that I would regard the factual material set out in the various documents filed by the applicant as constituting his evidence-in-chief.  This was achieved by allowing into evidence those documents provided by the applicant that were included in the Hearing Book together with the Respondent's Book of Documents Volumes 1-3 which included many if not all of the material on which the applicant relied.

18. For the reasons that follow I have concluded that allegations 1, 2 and 5 do constitute services provided to the applicant whereas allegations 3, 4 and 6 are not.  In relation to all of the allegations I am not satisfied on the balance of probabilities that the Department has discriminated against the applicant on the basis of gender.

The Tribunal's jurisdiction

1. The applicant's complaint was referred to the Tribunal under s 90(2) of the Act as a consequence of a decision by the Commissioner to dismiss the complaint under s 89 on the basis the complaint is lacking in substance.

2. In accordance with s 90(1) of the Act a complainant may within 21 days of receiving a notice under s 89, require the Commissioner to refer the matter to the Tribunal.

3. Section 90(2) of the Act requires the Commissioner to refer the complaint to the Tribunal where the complainant, as here, provides a valid notice under s 90(1).

4. Section 107 of the Act provides that the Tribunal must hold an inquiry into each matter of complaint referred to it under s 90(2).

5. The Tribunal's power to deal with a matter under s 107(3) is:

   a)in the exercise of the Tribunal's original jurisdiction;

   b)referrable to and circumscribed by, the complaint referred to it by the Commissioner; and

   c)therefore does not extend to anything beyond the complaint accepted by the Commissioner.[3]

   [3] Meunier and Director General, Department of Communities [2021] WASAT 112 (Meunier) at [17].

6. As a consequence of the provisions to which I have referred the Tribunal's jurisdiction is limited in two ways.  First, the complaint must relate to the Department.  Second, the Tribunal will only inquire into those matters determined and referred by the Commissioner.

7. As Barker J observed in Summerville and Department of Education& Ors [2006] WASAT 174 at [11]-[12]:

11… On the understanding that "the complaint" referred to the Tribunal must be the same complaint as that made by the complainant and determined by the Commissioner, it is clear that the Tribunal only has jurisdiction to deal with the issues raised in the complaint determined by the Commissioner and no others[.]

12… the Tribunal in equal opportunity matters does not have a roving commission to consider fresh complaints[.]

1. Section 127 of the Act provides that after holding an inquiry the Tribunal may either dismiss a complaint or find the complaint substantiated and make an order pursuant to that section.

The elements of sex discrimination

1. Sex discrimination is defined in s 8 of the Act. That section provides:

   (1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, on the ground of -

   (a)the sex of the aggrieved person; or

   (b)a characteristic that appertains generally to persons of the sex of the aggrieved person; or

   (c)a characteristic that is generally imputed to persons of the sex of the aggrieved person,

   the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.

   (2)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition -

   (a)with which a substantially higher proportion of persons of the opposite sex to the aggrieved person comply or are able to comply; and

   (b)which is not reasonable having regard to the circumstances of the case; and

   (c)with which the aggrieved person does not or is not able to comply.

2. It is for the applicant to demonstrate a causal relationship between the sex of the aggrieved person (in this case a male), or a characteristic pertaining generally to persons of that sex or a characteristic that is generally imputed to persons of that sex and any alleged less favourable treatment accorded to him.[4]

   [4] Chaisty v City of Perth [2004] WAEOT 3 at [65].

3. It is well-established that for a finding of unlawful discrimination to be made out it is necessary to establish a causal connection between the act complained of and the less favourable treatment, but it is not necessary to establish an intention to harm nor to discriminate.[5] Nor is it necessary for the applicant's sex to be the only or even the dominant or substantial ground for the relevant act for the unlawful discrimination to be proved - it is enough if it is one of the grounds: s 5 of the Act.[6]

   [5] Edoo at [78].

   [6] Edoo at [80].

4. Relevantly, in this case the applicant alleges he was the subject of discrimination on the basis of sex in relation to the provision of goods or services pursuant to s 20 of the Act. That section relevantly provides:

   It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other persons sex … -

   (a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or

   (b)in the terms or conditions on which the first mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

   (c)in the manner in which the first mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

Direct discrimination

1. Relevant to a claim of direct discrimination the Tribunal would need to be satisfied that on the basis of gender, the applicant was treated less favourably.

2. In Edoo at [160]­[163], the Tribunal set out the principles applicable to establishing that a person received or was subject to less favourable treatment. The expression 'less favourably' bears its ordinary meaning and calls for the Tribunal to apply its judgment to the facts found to be proved in the particular case.

3. In order for the applicant to establish he has been treated 'less favourably' (within the meaning of s 8 of the Act) it would be necessary for him:

   1)to identify another person (which may include a hypothetical person) whose 'circumstance' is 'the same' or 'not materially different' as his at the time of the alleged discrimination (a comparator);

   2)to determine whether the manner in which he was treated was less favourable than the manner in which the comparator was or would be treated in the circumstances;

   3)to establish a factual basis upon which the (distinguishable) treatment of the comparator can be determined; and

   4)to demonstrate the similarity of the comparator's circumstances by reference to all the objective features surrounding the complaint.

4. Even though it is permissible to refer to a hypothetical comparator, the factual foundation for conclusions about the way in which the comparator is, or would be, treated, must be established.[7]

Indirect discrimination

[7] Edoo at [162].

1. In order to establish indirect discrimination, the aggrieved person would need to prove that they were required to comply with a requirement or condition that the person is unable to comply with, but a high proportion of persons of 'the opposite sex' can comply with, and where such a requirement or condition is not reasonable in the circumstances of the case.[8]

   [8] See s 8 of the Act.

2. It does not appear the applicant is claiming he is the subject of indirect discrimination.

Onus of proof

1. The applicant bears the onus of proof in establishing his complaint of discrimination according to the civil standard of proof (being on the balance of probabilities). However, having regard to the serious nature and consequences of a finding of discrimination under the Act, the approach the Tribunal has taken[9] is in accordance with the principles set down by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at 361-362 per Dixon J which requires that:

   a)the Tribunal must feel an 'actual persuasion' of the occurrence or existence of the facts alleged by the applicant before those facts can be found; and

   b)although it is enough that the affirmative of an allegation is made out to the 'reasonable satisfaction' of the Tribunal, that reasonable satisfaction should not be produced by 'inexact proofs, indefinite testimony or indirect inferences'.

   [9] Edoo at [83]; See also Meunier at [25] and Grover v Commissioner of Police [2005] WASC 263 at [26].

2. In determining whether a complaint of discrimination is established, the Tribunal must base its findings on material which is probative of the matters to be proved.[10]  The Tribunal is not to engage in supposition or conjecture.

Services

[10] Meunier at [25].

1. The term 'services' is defined in s 4 of the Act to include:

   (a)services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance; and

   (b)services relating to entertainment, recreation or refreshment; and

   (c)services relating to transport or travel; and

   (d)services of the kind provided by members of any profession or trade; and

   (e)services of the kind provided by a government (other than the assessment of an application for suitability for adoptive parenthood, or the placement of a child for adoption or with a view to the child's adoption, under the Adoption Act 1994), a government or public authority or a local government body;

2. The question of what constitutes 'services' for the purposes of the Act was considered by the High Court in IW v City of Perth and Others (1997) 191 CLR 1 (IW).

3. IW was a member of an incorporated association of people living with AIDS (PLWA) who applied for planning approval for a daytime drop­in centre for persons who were infected with HIV.  The City of Perth Council (Council) rejected a motion that the application be approved for a trial period of twelve months.  The Equal Opportunity Tribunal (EOT) found that the votes of five of the thirteen councillors in the majority had been based on 'the AIDS factor'.

4. A majority of the High Court consisting of Brennan CJ, Dawson, Gaudron, McHugh and Gummow JJ dismissed IW's appeal. Apart from all the members of the High Court agreeing with the general proposition that the Act is beneficial legislation and should be given a liberal construction, as will become apparent, the ratio of this decision is not readily identifiable. Brennan CJ and McHugh J found that the Council did not provide a service. Dawson and Gaudron JJ held the Council did provide a service, however, once it was properly identified as the exercise of a discretion to grant or withhold planning approval, it was apparent the Council had not failed to provide a service and therefore had not breached the Act.

5. Gummow J (with whom Dawson and Gaudron JJ agreed on this point) found that IW was not an aggrieved person but agreed with Toohey and Kirby JJ that the Council did provide a service and in so doing had breached the Act. Implicitly, Toohey, Gummow and Kirby JJ took the view that the way Dawson and Gaudron JJ characterised the service provided by the Council was too narrow.

6. Brennan CJ and McHugh J began by referring to the wider meaning of the word 'services' in the Macquarie Dictionary Online which includes 'an act of helpful activity; the providing or a provider of some accommodation required by the public …'.  Their Honours also observed that s 18 of the Interpretation Act 1984 (WA) (Interpretation Act) requires that preference be given to the construction of a written law that would promote the purpose or object underlying that law to a construction would not promote that purpose or object.[11]

   [11] One of the objects (s 3(a)) of the Act is: 'to eliminate, so far as possible, discrimination against persons on the ground of sex[.]'.

1. Brennan CJ and McHugh J noted that s 18 of the Interpretation Act is reinforced by the rule of construction that beneficial and remedial legislation such as the Act are to be given a liberal construction.[12]

   [12] IW at 11 and 12.

2. Their Honours went on to remark that notwithstanding the beneficial nature of the Act that does not mean it is permissible to adopt a construction that is unreasonable or unnatural.[13]

   [13] IW at 12.

3. Some of the key observations made by Brennan CJ and McHugh J can be summarised as follows:

   •The Act defines discrimination and the activities which cannot be the subject of discrimination in a rigid and highly complex and artificial manner. As a result, conduct that would be regarded as discriminatory in its ordinary meaning may fall outside the Act.[14]

   [14] IW at 12.

   •Given the artificial definitions of discrimination in the Act and the restricted scope of their application, a court or tribunal should not approach the task of construction with any presumption that conduct which is discriminatory in its ordinary meaning is prohibited by the Act. The first question is whether the activity in question is capable of being regarded as a service.[15]

   [15] IW at 14.

   •As the definition in s 4 of the Act recognises councils provide services to residents and ratepayers such as the collection of garbage, the supply of water, gas and electricity and the use of libraries and sporting facilities.[16]

   •The provision of intangibles such as advice and information in respect of building and town planning matters may constitute services.[17]

   •The Act is not necessarily inapplicable to a council activity because the council acting as a deliberative body, makes a decision refusing to provide the relevant service or because the refusal is made in the exercise of a statutory power or duty.[18]

   •Even a purposive and beneficial construction of the Act's provisions will not always be capable of applying to acts that most people would regard as discriminatory.[19]

   •When a council as a deliberative body exercises a statutory power or executes a statutory duty such as making by laws or resolutions that will apply throughout the municipality, it may be acting directly as an arm of government rather than the provider of service.  Such legislative acts are to be contrasted with acts involving the making of operational decisions as to whether a particular service should be provided to certain individuals or a section of the community.[20] 

•It may be inappropriate to characterise the council acting in a quasi-judicial role in exercising a statutory power or duty as the provision of a service for the purposes of the Act even where the product of that process is the provision of a benefit to an individual. This is likely to be so where the council, before making a decision, is required to consider matters that may affect the public interest.[21]

•In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused and what service or services the alleged discrimination provides.[22]

[16] IW at 12.

[17] IW at 12.

[18] IW at 12 and 13.

[19] IW at 15.

[20] IW at 15.

[21] IW at 15.

[22] IW at 16 and 17.

1. Ultimately, Brennan CJ and McHugh J concluded that the Council neither provided a service of giving approvals nor refusing approvals.  The Council merely had a duty to consider applications and a discretionary power to refuse or approve applications conditionally or unconditionally.[23]

   [23] IW at 17.

2. Their Honours, having acknowledged that the claim as to whether the Council exercised its discretion in a discriminatory manner in accordance with s 66K(1)(c) had not been dealt with by the EOT or the Full Court, said it could not succeed in any event:[24]

   The process by which the Council considers applications for approvals is not in our view arguably describable as a service that it provides to applicants for planning approval.  Rather it is a power to process applications for the protection and general benefit of the residents of the City.  If the Council delays making its decision for more than sixty days, it is deemed to have refused the application.  A process that can lead to such a result can hardly be described as providing a service to the applicant.  If within the statutory period, the Council considers the application, it is bound to consider various matters and interests which may be contrary to the interests of the applicant and which may result in the refusal of the application.  If the application succeeds, the applicant no doubt receives a benefit or advantage.  But not every process or activity which results in a benefit or advantage to an individual is a service that is provided to that individual.  When the deliberative and quasi-judicial nature of the application process is identified and analysed, it cannot sensibly be described as a 'helpful activity' provided by the Council to applicants for planning approval.  The Council is an adjudicator, not a servant of an applicant.

   [24] IW at 18.

3. Dawson and Gaudron JJ observed that in construing legislation designed to protect basic human rights and dignity, the courts 'have a special responsibility to take account of and give effect to its purpose'. As a consequence, the provisions of the Act concerned with the provisions of goods or services should be construed as widely as their terms permit. 'Services' in particular is a word of complete generality and should not be given a narrow construction unless that is clearly required by definition or by context.[25]

   [25] IW at 22 and 23.

4. Their Honours remarked that the word 'services' in its ordinary meaning was apt to include the administration and enforcement by the Council of the planning scheme.  This included regulating the use of land, securing the provision for traffic and generally implementing or enforcing measures directed to the amenity of the area.[26]

   [26] IW at 23.

1. Having concluded that the exercise of a discretion to grant or withhold planning approval was a service their Honours held that the Council had not failed to provide it:[27]

   The appellant's argument that the first respondent's refusal of planning approval was a refusal to provide a service cannot be sustained.  Once the service in issue is identified as the exercise of a discretion to grant or withhold planning approval, a case of refusal to provide that service is not established simply by showing that there was a refusal of planning approval.  Rather, it is necessary to show a refusal to consider whether or not approval should be granted.  And that case is foreclosed by the very matter of which the appellant complains, namely, the Council's refusal to grant approval.

   [27] IW at 24.

2. Dawson and Gaudron JJ noted that subject to the question as to whether IW is an aggrieved person, it may be that a case can be made that in refusing PLWA's application, the Council exercised its discretion in a discriminatory manner and thus infringed s 66K(1)(c) of the Act. However, although the points of claim lodged with the EOT asserted such a case, it was not dealt with by the EOT or in the subsequent appeals.[28]

   [28] IW at 24.

3. Toohey J said the question whether there has been a refusal to provide a service is a question of fact.   His Honour found that classifying the service provided by the Council as the consideration of applications for planning permits was too narrow:

   … But how, it is asked, can a refusal of an application be a refusal to provide a service? The answer to this may be found in s 66K(1)(c) of the Act. If the service is seen as the consideration of the application and its disposition and if it appears that the Council refused the application on the ground of impairment, why is that not discrimination "in the manner in which the first-mentioned person provides the other person with those … services"? Consideration of an application is of itself hardly a service; it is the disposition of the application which either provides or refuses the service. In the manner of that refusal there may be discrimination.

4. Gummow J found that the Council provided a service:[29]

   There is no reason in logic or good sense to deny the proposition that the Council may be engaged in the provision of services, not only to the community as a whole, but also to individual applicants who invoke the exercise of the powers of the Council under the town planning law.  There is no dichotomy here between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions.

   [29] IW at 44.

5. While his Honour agreed with Dawson and Gaudron JJ that there was no refusal to provide a service, he found that the manner in which the Council dealt with the application was discriminatory.[30]

   In the present case, the Council did not refuse to provide services.  It did not for example, refuse to accept or to deal with the application by PLWA in respect of the premises at Walcott Street, North Perth.  Section 66K(1)(a) could have no application.  It deals with refusal to provide services.  Accordingly, the appellant's primary submission should be rejected.

   However, in its application to the facts of this litigation s 66K(1)(c) looks to "the manner" in which the Council discharged its statutory obligations under the town planning law. That section made it unlawful for the Council to discriminate against an impaired person in the manner in which it provided that person with services. In a broad sense, the manner in which the Council went about its task with respect to the Walcott Street premises involved discrimination within the sense of the Act.

   [30] IW at 45.

6. Kirby J also took a broad view of the term 'services' referring, as had Brennan CJ and McHugh J, to the ordinary meaning of services as an act of 'helpful activity'.[31]  However, his Honour expressed a more liberal view as to the application of those words:[32]

   The provision of permission to change a planning use is capable of being a 'service'. It can undoubtedly be helpful and valuable to the recipients. A refusal to provide it, on a ground of unlawful discrimination, is plainly the kind of conduct which the Act was designed to discourage.

   [31] IW at 69.

   [32] IW at 74.

7. In IW the High Court considered a number of English decisions that dealt with the meaning of 'services'.

8. In Savjaniv Inland Revenue Commissioners [1981] QB 458 (Savjani) the plaintiff went to the local Inland Revenue office, where information and advice was given to members of the public on their tax affairs, in order to claim tax relief under s 10(1) of the Income and Corporation Taxes Act 1970 (UK) (ICT Act) in respect of his son.  Inland Revenue had a policy rule that taxpayers who came from India should be required to produce a full certified copy of the birth certificate (costing £2.50) of the first child born in the United Kingdom (UK) for whom tax relief was claimed.  Other claimants were only required to produce a short form birth certificate which was issued free of charge.

9. The plaintiff brought an action alleging Inland Revenue unlawfully discriminated against him contrary to the Race Relations Act 1976 (UK) (RR Act).  Templeman LJ observed that the Inland Revenue submitted that the board and the inspector are performing duties laid upon them by the ICT Act.[33]  His Honour concluded that it does not necessarily follow that the board and the inspector are not voluntarily, or in order to carry out their duty, also performing services for the taxpayer.  The duty is to collect the right amount of revenue but there is a service to the taxpayer provided by the board and the inspector by the provision, dissemination and implementation of regulations which will enable the taxpayer to know that they are entitled to a deduction or a repayment.  This will entitle them to know how to satisfy the inspector of the board they are entitled and in turn obtain the deductions or repayment prescribed by Parliament.  The services the inspector and the board provide enable the taxpayer to obtain the relief that Parliament intended they should obtain as a matter of right subject only to proof.

   [33] Savjani at page 467.

10. Savjani was considered by the House of Lords in R v Entry Clearance Officer, Bombay; Ex parte Amin [1983] 2 AC 818 (Amin).  The applicant, a UK passport holder resident in Bombay, applied to an entry clearance officer for a special voucher to enable her to settle in the UK.  The application was refused on the ground that, not being a head of household, the applicant was not eligible to apply for a special voucher.  The applicant contended that the refusal of a special voucher constituted discrimination against her under the Sex Discrimination Act 1975 (UK).

11. The House of Lords dismissed the applicant's appeal by a majority of 3:2.  Lord Fraser of Tullybelton, (with whom Lord Keith of Kinkel and Lord Brightman agreed) held:[34]

    … the entry clearance officer was 'not performing a service for would­be immigrants'; rather he was performing his duty of controlling them.

    [34] Amin at page 835.

12. Lord Fraser observed that Savjani turned on a finding that Inland Revenue performed two separate functions - first a duty of collecting revenue and secondly a service of providing taxpayers with information.[35]

    [35] Amin at page 834.

13. Farahv Commissioner of Police of the Metropolis [1998] QB 65 (Farah) concerned an action by a Somali refugee who claimed that she was attacked by white youths who set a dog on her and injured her and that when she summonsed the police, they arrested her without cause.  Subsequently she was charged with affray, assault and causing unnecessary suffering to a dog but when she appeared to answer the charges the prosecution offered no evidence, and she was acquitted.

14. Farah initiated proceedings against the Commissioner of Police alleging, amongst other things, that the police conduct constituted racial discrimination contrary to the RR Act in that the officers had deliberately omitted to provide her with the services she sought or with services on like terms to those normally provided by the officers to other members of the public.  This included initiating criminal proceedings against her on racial grounds thus treating her less favourably than they would treat others.  The Commissioner of Police made an application to strike out the claim so far as it relates to the RR Act.

15. The Court of Appeal held that those duties of a police officer that involve assistance to or protection of the public constitute 'services to the public' for the purposes of the RR Act.  However, the pursuit, arrest and charging of alleged criminals was not considered a service.[36]  Otton LJ said:[37]

    [P]olice officers perform duties in order to prevent and detect crime and to bring offenders to justice.  They are also vested with powers to enable them to perform those duties.  While performing duties and exercising powers they also provide services in providing protection to the victims of crimes of violence.

    [36] Farah at page 78.

    [37] Farah at page 83.

16. Subsequent to IW a number of Australian decisions have also examined the word 'services' in the context of anti-discrimination legislation.

17. In Secretary of the Department of Justice and Industrial Relations v Anti-Discrimination Commissioner (2003) TAS R 324 (ADC) which concerned a complaint by the parents of a disabled child who had allegedly been sexually assaulted by a male carer, that the Director of Public Prosecutions (DPP) had discriminated against the child by reason of age and disability.  The DPP had made a decision not to prosecute the alleged offender in part because of the difficulty of the child giving evidence because of her limited communication skills.

18. In a letter to the child's parents explaining his decision the DPP said that a suitably qualified person may be able to get to know the child well enough to become an interpreter but there is a question of cost.  The letter suggested that the parents may want to investigate retaining the suitable qualified person.[38]

    [38] ADC at [3] and [4].

19. The respondent treated the complaint as having been made against the applicant not the DPP and referred it to the Anti-Discrimination Tribunal for inquiry, on that basis.  The applicant sought judicial review of the referral of the complaint which was ultimately granted on the basis that the applicant was not the correct respondent.

20. From the outset it was accepted by the respondent that in the exercise of his prosecutorial discretion the DPP's decision not to prosecute is not reviewable by the Anti-Discrimination Tribunal.[39]

    [39] ADC at [10].

21. On behalf of the respondent, the complaint was framed as discriminatory conduct in requiring the child's parents to meet the cost of providing the services of an interpreter which might have assisted the child articulate the allegations she made.[40]

    [40] ADC at [10].

22. Underwood J observed that the Tasmanian Anti-Discrimination Act 1998 (Tas) (AD Act) is difficult to understand and that s 22 confines the areas of activity within which there may occur conduct that is in breach of the provisions of the AD Act by reference to the activity, not of the alleged offender, but the alleged victim.

23. This differs from other similar legislation around Australia that simply makes it wrongful for a person, in the supply of goods and services to discriminate against a person on one or more of the prescribed grounds.  The question was whether the child was engaged in or undertaking any activity in connection with the provision of services.[41]

    [41] ADC at [47].

24. Underwood J noted in particular that the Court of Appeal in Farah drew a distinction between police officers providing a service when assisting and protecting the public and the pursuit, arrest and charging of criminals which is not a service but the exercise or performance of the duties of their office.[42]

    [42] ADC at [52].

25. Ultimately, Underwood J concluded, that having regard to the authorities, the passages of the DPP's letter that led to the making of the complaint were part and parcel of the exercise of a statutory duty and cannot be described as a service.[43]

    [43] ADC at [53] - [54].

26. Director-General, Department of Community Services v MM [2003] NSWSC 1241 (MM) at [44] concerned a claim of impairment discrimination arising out of the refusal of an application to be a foster parent. Barr J after referring to IW concluded that when dealing with an application to be a foster parent, the Department provides a service in much the same way as a local council authority provides a service in dealing with development applications.  However, his Honour ultimately found that the obligations in the Anti-Discrimination Act 1977 (NSW) should be read down where they conflict with safeguards in the Child (Care and Protection) Act 1987 (NSW).

27. In Rainsford v State of Victoria (2007) 167 FCR 1 (Rainsford No 1), a prisoner who had suffered a back injury claimed he was the subject of indirect disability discrimination in respect of two matters.  First, he was required to travel in prison transportation vans for up to two hours without the opportunity to stretch and exercise his back.  Second, that during segregation he was not provided with adequate opportunities to stretch and exercise his back in addition to being given a low bed which he could not make without further aggravating his back.

28. Sunberg J[44] observed that the judgments in IW are clearly dependant on the particular fact/situation of that case, but some general propositions can be identified.  First, not all government functions are services, although some undoubtedly are.  Second, as the difference between Dawson, Gaudron and Gummow JJ on the one hand, and Toohey and Kirby JJ on the other hand demonstrates, the way in which the service is identified is critical.  It is a question of fact determined by the situation of the particular case.

    [44] Rainsford No 1 at [72].

1. His Honour accepted that the touchstone for a 'service' should be whether the act involves helpful or beneficial activity but in a qualified way.  Most activities are helpful or beneficial to someone, that however, does not make them services.  The question must be whether the act is helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs.[45]

   [45] Rainsford No 1 at [73].

2. Sunberg J ultimately concluded that neither the transportation of prisoners between prisons and to and from court nor accommodation of prisoners in cells constitute services.  With respect to transportation his Honour observed that it is artificial to use the word 'service' to apply to a fundamental integer of a system over which those affected have no or almost no control.[46]

   [46] Rainsford No 1 at [77].

3. Turning to accommodation, Sunberg J held that accommodation in cells is similarly an inherent part of incarceration, and the choice of cells is purely a prison management matter and does not of itself provide prisoners with a benefit.  Rather, adopting the words of Underwood J in ADC, 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.[47]

   [47] Rainford at [78].

4. Sunberg J commented, without pursuing the point, that the distinctions drawn in Farah between assisting and protecting members of the public, which is a service, and pursuing, arresting and charging criminals which is not, is hard to justify given the pursuit of criminals is so much a part of protecting the public.[48]

   [48] Rainsford No 1 at [73]; c/f. Richards and Commissioner of Police [2010] WASAT 115 at [63] which followed Farah.

5. On appeal to the Full Federal Court in Rainsford v State of Victoria (2008) 167 FCR 26 (Rainsford No 2) the Court in dismissing the appeal said:[49]

   In this case it is not necessary to consider whether his Honour erred in his interpretation of the expression 'service' or 'facility'.  This is because, if, as we think, his Honour's conclusions on the other aspects of the claim are correct, this question does not arise.  We observe 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.

Does the Department provide 'services'?

[49] Rainsford No 2 at [9].

1. It is difficult to identify a clear set of principles emanating from these authorities.  This is particularly so given the variety of factual circumstances considered, the differing views expressed by the members of the High Court in IW and the fact that none of these cases bear any similarity to the present case.

2. The Department's response to all of the applicant's allegations is that they do not involve the provision of services within the meaning of that term in the Act.[50]  The Department relies in particular on ADC[51] as support for the proposition that its functions or activities are better described as being part and parcel of the exercise of a statutory duty and cannot be described as the provision of a service.

   [50] Respondent's Closing Submissions at para 70.

   [51] Respondent's Statement of Issues, Facts and Contentions at para 43; see also Respondent's Book of Documents, Vol 2 at page 163.

3. I have difficulty with that proposition expressed in such general terms for two reasons.  First, the passage on which the Department relies was used by Underwood J in ADC in reference to a very different factual situation, namely the DPP's prosecutorial discretion.  It was not in dispute in that case that the exercise of such a discretion was not subject to review.

4. Second, the proposition assumes that all of the functions the subject of the applicant's allegations involve the exercise of a statutory duty and assuming that to be true, that the exercise of a statutory duty is not a service for the purposes of the Act.

5. Even Brennan CJ and McHugh J, representing the narrowest of the views expressed in IW, acknowledge that a governmental body exercising a statutory power or duty may constitute a service for the purposes of the Act.[52]  Similar sentiments have been expressed in a number of other decisions.[53]

   [52] See Rainsford No 1 at [72].

   [53] See Amin; Farah; Savjani; Australian Education Union v Human Rights & Equal Opportunity Commission and State of Tasmania (1997) 80 FCR 46; Tejani v Superintendent Registrar for the District of Peterborough [1986] IRLR 502 (CA) and Director General, Department of Community Services v MM (2003) NSWSC 1241.

6. I find that the provision of emergency accommodation and priority housing (allegation 1) constitute services.  Even if they are characterised as the exercise of a statutory duty, they are not of a kind described by Brennan CJ and McHugh J in IW to which the Act would not apply. The provision of housing does not involve the Department, as a deliberative body, exercising a statutory duty or power directly as an arm of government rather than the provider of services. Nor can it be said that the Department in providing accommodation is acting in a quasi-judicial role so as to render the process outside the ambit of the Act. The provision of emergency accommodation and priority housing are operational decisions as to whether a particular service should be provided to certain individuals or to a section of the community.[54]

   [54] IW at 15.

7. As Brennan CJ and McHugh J observed in IW,[55] the Macquarie Dictionary Online defines 'services' as a helpful activity, 'the providing or a provider of some accommodation required by the public …'. Nothing about the term 'services' read in light of the context of the Act, its objects and the language used, supports the conclusion that the characterisation of accommodation as a service is an unreasonable or unnatural construction.

   [55] IW at 11.

8. So far as the provision of advice to fathers and children (allegation 2) is concerned there is support in the authorities for the view that the provision of advice and information constitutes a service.[56]

   [56] See Savjani.

9. To the extent Ms Gulliver's letter (allegation 5) constitutes the provision of advice or information, I find that it too constitutes a service.

10. The applicant's complaint that the Department employs predominantly women to carry out its function (allegation 6) is not directed to establishing that men are the subject of discrimination in relation to employment.  On the contrary, it appears to be based on the assumption that a workforce dominated by women is likely to discriminate against men in the provision of services.

11. As acknowledged in IW the service in question needs to be identified with precision.[57]  Absent the identification of a particular service which the Department is said to have refused to provide or has been administered in a discriminatory manner, such an allegation is meaningless.[58]

    [57] See IW at 17 and Waters v Public Transport Corp (1991) 173 CLR 349 at 404-405.

    [58] See Rainsford No 1 at [76].

12. The engagement of women to provide a service is not of itself a service.  Nor is the engagement of women amenable to being characterised as the manner in which a service is provided absent the identification of the service in question.

13. It may be that the applicant in reality advances the over­representation of women in the Department's workforce as an explanation for the unlawful discrimination the subject of allegations 1­5.  That being the case, allegation 6 cannot stand alone as a ground of discrimination as it fails to identify a service.

Child safety investigations

1. I turn now to the other two related allegations - complaints by women treated differently (allegation 3) and drug testing (allegation 4) both of which arise in the context of a child safety investigation.

2. In determining whether a child safety investigation constitutes the provision of a service to the applicant, it is necessary to examine the statutory provisions that set out the Department's power and duties.

3. Child safety investigations are part of the Department's functions under the Child and Community Services Act 2004 (WA) (the CCS Act).  The objects of the CCS Act include:[59]

   (a)to promote the wellbeing of children, other individuals, families and communities; and

   …

   (d)to provide for the protection and care of children in circumstances where their parents have not given, or are unlikely or unable to give, that protection and care[.]

   [59] CCS Act, s 6.

4. In performing a function under the CCS Act in relation to a child, the paramount consideration is the best interests of the child.[60]

   [60] CCS Act, s 7.

5. Section 8 of the CCS Act provides:

   8.Determining best interests of child

   (1)In determining what is in the best interests of a child, the following matters must be taken into account —

   (a)the need to protect the child from harm;

   (b)the capacity of the child's parents to protect the child from harm;

   (c)the capacity of the child's parents, or of any other person, to provide for the child's needs;

   (d)the nature of the child's relationship with the child's parents, siblings and other members of the child's family and with other people who are significant in the child's life;

   (e)the attitude to the child, and to parental responsibility, demonstrated by the child's parents;

   (f)any wishes or views expressed by the child, having regard to the child's age and level of understanding in determining the weight to be given to those wishes or views;

   (g)the importance of continuity and stability in the child's living arrangements and the likely effect on the child of disruption of those living arrangements, including separation from —

   (i)the child's parents; or

   (ii)a sibling or other member of the child's family; or

   (iii)a carer or other person (including a child) with whom the child is, or has recently been, living; or

   (iv)other people who are significant in the child's life;

   (h)the need for the child to develop and maintain contact with the child's parents, siblings and other members of the child's family and with other people who are significant in the child's life;

   (i)the child's age, maturity, sex, sexuality, background and language;

   (j)the child's cultural, ethnic and religious identity (including the need for cultural support to develop and maintain a connection with the culture and traditions of the child's family or community);

   (k)the child's physical, emotional, intellectual, spiritual and developmental needs;

   (la)the child's educational needs;

   (l)any other relevant characteristics of the child;

   (m)the likely effect on the child of any change in the child's circumstances.

   (2)Subsection (1) does not limit the matters that may be taken into account in determining what is in the best interests of a child.

6. Other principles to be observed in carrying out a function under the CCS Act include:[61]

   …

   (c)the principle that every child should be cared for and protected from harm;

   (d)the principle that every child should live in an environment free from violence;

   (e)the principle that every child should have stable, secure and safe relationships and living arrangements;

   …

   (f)the principle that intervention action (as defined in section 32(2)) should be taken only in circumstances where there is no other reasonable way to safeguard and promote the child's wellbeing[.]

   [61] CCS Act, s 9.

7. The purpose of a child safety investigation is to determine if a child is in need of protection.  Relevantly, a child is in need of protection if a child has suffered or is likely to suffer harm as a result of one or more of the following:[62]

   [62] CCS Act, s 28.

   …

   (i)physical abuse;

   (ii)sexual abuse;

   (iii)emotional abuse;

   [(iv)deleted]

   (v)neglect,

   and the child's parents have not protected, or are unlikely or unable to protect, the child from harm, or further harm, of that kind[.]

8. In the event a determination is made that a child is in need of protection, the CCS Act includes wide ranging powers.  For example, an authorised officer or a police officer, at any time, may take a child into provisional protection and care without a warrant if the officer suspects on reasonable grounds that there is an immediate and substantial risk to the child's well-being.[63]

   [63] CCS Act, s 37.

9. The legislative scheme also imposes a duty to report on doctors, nurses, midwives, police officers, teachers and boarding supervisors where they believe that on reasonable grounds, in the course of their work, a child has been the subject of sexual abuse or is the subject of ongoing sexual abuse.  The failure to comply with this mandatory requirement can result in a fine of up to $6,000.[64]

   [64] CCS Act, s 124B.

10. The Department says:

    •its child protection activities are conducted pursuant to the CCS Act and that in exercising its functions, the best interests of the child are paramount;[65]

    •its activities can better be characterised as the exercise of a duty aimed towards the protection, as opposed to a service provided to a particular individual;[66]

    •the purpose of a child safety investigation is to assess if a child has been harmed, assess the parents' capacity to protect their child, and to determine if the child is in need of protection;[67] and

    •as a child safety investigation can result in a parent being determined to be a safety risk to a child, this is inconsistent with the investigation with the investigation being a 'service' for a parent even if the parent reports the initial concerns.  If a child safety investigation is a service, it could only be considered a service for the child in question.[68]

    [65] Respondent's Closing Submissions, para 71.

    [66] Respondent's Closing Submissions, para 74.

    [67] Respondent's Closing Submissions, para 86.

    [68] Respondent's Closing Submissions, para 86.

11. In order for the applicant to establish that the Department discriminated against him in the conduct of a child safety investigation, he needs to establish that the Department in carrying out such an investigation, either refused to provide him with services, in the terms or conditions which those services are provided to him or the manner in which those services are provided to him.[69]

    [69] Section 20 of the Act.

12. Framed in this way and having regard to the language used in s 20 of the Act, it is clear that the applicant must be the person who is refused services or who is provided with services on terms or conditions or in a manner that is discriminatory.[70]

    [70] IW at 25.

13. To the extent that a 'service' is characterised by whether it provides a benefit, many people may derive a benefit from an activity or process.  That, however, does mean that activity or process can necessarily be characterised as a service provided to them.

14. The question, therefore, is not whether a child safety investigation is a service to a child but whether it is a service so far as the applicant is concerned?  Moreover, even if the applicant is capable of deriving some benefit from a child safety investigation, is that sufficient to establish it is a service provided to him?

15. In MM, to which I referred earlier, Barr J remarked:[71]

    … People apply to become foster carers out of a strong desire to give and receive …  It seems to me that that privilege is a benefit and that to confer it or the chance of it is to provide a service[.]

    [71] MM at [42].

16. His Honour accepted that the process of selecting foster parents was capable of being a service to both aspiring foster parents and children in the care of the Department.[72]

    [72] MM at [41].

17. Can similar reasoning be applied to a child safety investigation?

18. There is no question that there may be circumstances where a child safety investigation may prove a benefit to someone other than the child to whom the investigation relates.

19. An alleged perpetrator of harm to a child may be exonerated as a consequence of the investigation.  There may also be cases where a parent who is struggling to care for a child may perceive the child being taken into the care of the Department as a benefit, at least in the short term.

20. As the authorities referred to earlier demonstrate, there is no bright line when it comes to identifying what activity or process constitutes a service for the purposes of the Act.

21. However, in my view, it cannot truly be said that a child safety investigation constitutes a service to the parent of a child the subject of the investigation.  As I have explained, while it is possible for a parent to derive a benefit from the outcome of such an investigation, unlike foster care, the process is not conducted for the benefit of the parent but to determine whether a child is at risk of harm.

22. The Department argues that a child safety investigation is carried out in circumstances where it has a statutory duty to act in the best interests of a child.  The Department points to the fact that some professions are subject to mandatory reporting obligations and that a parent's conduct may by necessity be the focus of the investigation.

23. These factors, so far as I understand the Department's case, support the conclusion that child safety investigations involve the performance of a statutory duty to protect children rather than a service.  As the authorities make clear the fact that an activity or process involves the exercise of a statutory duty or power does not mean it cannot also be characterised as a service.  The majority of the members of the High Court came to that conclusion in IW.  However, even if a child safety investigation constitutes a service to a child (as to which I express no opinion), the nature of the statutory duty or power may mean that the service in question is only a service so far as the child the subject of the investigation is concerned.

24. Similar arguments apply to random urinalysis as it is imposed in the course of a child safety investigation.  To the extent that it may be argued that compliance with random urinalysis is capable of being construed as a condition with which the applicant must comply to have contact with his children, and is hence a service, it is, in my view, misconceived.

25. Random urinalysis is imposed on a parent with a view to ensuring children are not exposed to harm not as a service to the parent.  The fact that the parent may ultimately receive some benefit from complying with the urinalysis (i.e., contact with the child) does not, in my view, make it a service provided to them.

26. The Department argues that a child safety investigation is not a service. I do not understand the Department to contend that the CSS Act impliedly repeals the Act or that there is an operational inconsistency between the CCS Act and the Act. Accordingly, I have not considered either of these issues.

Credibility and reliability

1. Having read the material lodged by the applicant and seen him give evidence and make submissions it is apparent he cares deeply for his children.  It is equally clear that he is frustrated and angry about what he perceives as an unwillingness on behalf of various agencies and the Family Court of Western Australia to treat him and his children fairly.

2. While the applicant's written and oral evidence was disjointed, confusing and difficult to follow, I do not doubt that he honestly believes all that he said.  That does not mean, however, that I accept everything he says to be true.  Much of what the applicant said was his subjective interpretation of various events which was not borne out by probative evidence.

3. By way of example, the applicant's complaint says:[73]

   I have been alienated and bullied by the Department.  An example was in late 2019 when Sylvia Gulliver said 'I can request the case manager contacts Parkerville and follow up a referral' but I had already sorted that out myself and for my children and had already had 2 weeks of protective behaviour therapy sessions not including my 2.5 hours induction a couple of weeks before.

   [73] Hearing Book at page 58.

1. The portion of the email to which the applicant referred says:[74]

   •You reported that you are seeking support for your son through Protective Behaviours and Parkerville, however there are waitlists and you are getting no support from the Department.

   •I can request that the case manager contacts Parkerville to try and follow up on this if you have already submitted a referral.  If you have not submitted a referral yourself I can request that the case manager does that as soon as possible for your son.

   [74] Respondent's Book of Documents, Vol 2, page 208.

2. Even when the passage from Ms Gulliver's email, reproduced above, is read in light of the email as a whole, there is no objective basis to support the conclusion that it constitutes alienation or bullying.

3. As I explained earlier in determining whether a complaint of discrimination is established, the Tribunal must make its findings on material which is probative of the matters to be proved.

4. As was made clear by Dixon J in Briginshaw[75] the Tribunal must feel an actual persuasion of the occurrence or existence of the facts alleged by the applicant.  While it is enough that an allegation is made out to the reasonable satisfaction of the Tribunal, inexact proofs, indefinite testimony, or indirect inferences are not sufficient.

   [75] Briginshaw at pages 361-362.

5. Where there exists a conflict between the applicant's evidence and that of the Department's witnesses, I prefer the latter.  The Department's witnesses were more detailed and consistent in their accounts of what took place.  In addition, in many instances the witnesses' evidence was corroborated by the Department's records.[76]

   [76] Respondent's Book of Documents, Vol 2, pages 177-178 and 189.

6. In contrast the applicant's evidence was often conclusory, vague, non­specific and lacking in detail.  Mindful of the serious nature and consequences of a finding of discrimination, I was not satisfied that the applicant had proved the allegations that constitute his complaint on the balance of probabilities.

The allegations

1. As I foreshadowed earlier the applicant's complaint consists of six allegations.  As far as possible I have set out the allegations in the applicant's own words.  Although I have found that allegations 3 and 4 form part of a child safety investigation and therefore do not involve the provision of a service to the parent of the child the subject of the investigation, I have proceeded to deal with the merits of those allegations in any event.

1. Accommodation for fathers and children

1. The applicant's complaint relevantly says:

   5.Around 8 July 2019 I was in another DV relationship and as the kids and I were packing the car to leave to escape this DV relationship, I was sucker punched in the eye by my (then) girlfriend.  This left me with a black eye for a week.

   6.The kids and I asked the DCP officer in Armadale, "is there a male refuge for a family escaping DV?".  We received the same answer as we did in 2016 when we were escaping DV.  "No there isn't a refuge for a male parent and his children".  So I ended up leaving my children at my mums for nearly a month, while I slept in my car with our 2 dogs.

   7.Because of this my kids missed a couple of weeks of schooling as I was getting no help.

   8.I know countless women who have been in the same situation and have been supported by DCP and been found a refuge and a healthier, safer beginning.  Some of these women had said to me, "that's so unfair and discriminatory.

   9.That isn't equal or fair as a woman with kids wouldn't be left homeless and on the streets for nearly a month, but because I was a man no help was provided.

2. Having regard to the applicant's witness statement it is apparent that he asserts that the Department discriminated against him by not providing a refuge for men escaping domestic violence and not providing him with priority housing.

3. The applicant says that upon escaping domestic violence in June 2019, Entrypoint (a non-government agency) provided him and his two children with a three night stay at a caravan park and that in the next couple of days there was an assessment by Centrecare, Gosnells which liaised with the Department.[77]

   [77] Respondent's Bundle of Documents, Vol 3, pages 287-288.

4. According to the applicant, as no assistance with housing was provided thereafter, he and the children were thus rendered homeless.  Ultimately, the applicant says he had no choice but to leave the children at his elderly mother's house while he slept in the car with two dogs for over a month and a half.[78]

   [78] Respondent's Bundle of Documents, Vol 3, page 288.

5. The applicant says further:[79]

   The department would of known of our homeless situation as the memorandum of understanding shared between agencies/parties would of shown we needed help yet again (sic) received nothing except 'Bond assistance'.  I secured a private rental after so many viewings and applications.

   [79] Respondent's Bundle of Documents, Vol 3, page 288.

6. Ben Whitehouse, District Director of the Armadale District for the Department testified:

   …

   32.Entrypoint is the first point of contact for families and individuals who require access to specialist homelessness services and other accommodation and/or support services in the Perth metropolitan area. Entrypoint is a free service, provided by Centrecare Incorporated which provides assessment and referrals for the homeless and those at risk of homelessness.  As part of the assessment process Entrypoint may contact the Department's Crisis Care Unit (as a first point of contact with the Department) to obtain information, for example regarding family domestic violence issues.

   33.The Department outsourced homelessness assessments and referrals to Entrypoint a number of years ago.  This was in order to meet demand for these services, and to ensure that homelessness needs are responded to and not entangled with child protection issues.

   …

   35.The Case Note indicates that as there were no concerns regarding [JJ]'s presentation and interaction with his children, and therefore no immediate child protection issues raised, Entrypoint made the decision to provide short term accommodation for [JJ] in the Rockingham area.

   …

   37.As there was an open child safety investigation and [JJ] was experiencing homelessness, I would have expected that Rockingham District Office would attempt to make contact with [JJ] as soon as possible.  I do not know if Rockingham District Office followed up with [JJ], however, I am aware that there were some further difficulties for the Department in locating [JJ], until the Department later became aware that he was residing in the Armadale area.

   38.If the Department had been able to locate [JJ], the priority issue would be dealing with the homelessness issue.  This involves identifying family or friends that he and the children could stay with.  If this was not successful, getting back to Entrypoint would be the second step. Case officers will usually aim to get the homelessness issue resolved by lunchtime, so that the parent and children would not find themselves homeless at the end of the day.

   39.As all our child protection matters involve children, this matter would have been a "Priority 2 response".  There are 2 levels of priority:  Priority 1 and Priority 2.

   40.In this case, this matter would have been the lower Priority 2 response, because although the child were young, they were not infants.  Further although the referral which prompted the child safety investigation related to family domestic violence between [JJ] and his former partner, the parties were not living together.  [JJ] had informed the Department that the two parties were not living together.  This means the case was not of the highest priority, rather, the child safety investigation related to chronic issues, but not high priority issues- there were issues to follow up, but not immediately, notwithstanding that [JJ] was homeless.

   41.Any person who was brought to the attention of the Crisis Care unit of the Department would have had the same response as [JJ].

   42.The Department does not operate crisis accommodation for any person escaping domestic violence, however, can support referrals to access those services that do provide crisis accommodation.  Support to access these services typically occur when a person states that they feel (or is assessed as being) unsafe in their home and require alternative accommodation to de-escalate or prevent family and domestic violence[.]

7. Denise Marchese, Area Manager at the Armadale Office of the Department explained:

   …

   5.In my role as Area Manager, I provide guidance and direction to 18 staff members and oversee the management of 1,521 tenancies.

   …

   10.The Housing division of the Department:

   (a)assists eligible families and individuals to obtain affordable housing; and

   (b)provides rental accommodation to eligible households across Western Australia.

   11.An applicant may be placed on the public housing waiting list upon meeting the eligibility criteria.  There is a significant waiting list for public housing rental accommodation, which averages 95 weeks.

   …

   15.If an applicant has an urgent need for housing and does not have any other housing options, the local Housing division office can provide information to an applicant about applying for priority assistance.

   16.There are two waiting lists for housing assistance:

   (a)the "wait turn" list, where an applicant is deemed eligible for public housing; and

   (b)the "priority housing" list, where an application is deemed priority due to homelessness, family and domestic violence or a severe and ongoing medical condition caused or aggravated by the current housing situation.

   17.The Department's Family Domestic Violence Policy outlines the housing management response in circumstances where the Department is aware family violence is occurring or is likely to occur.  When an applicant who is eligible for public housing demonstrates that they are experiencing, or at risk of experiencing family violence, their application will be assessed according to the Priority Housing Needs Policy …

   …

   21.While every effort is made to allocate housing according to the applicant's preferred location and type of accommodation, this is not always possible.  The ability to allocate property depends on a vacancy occurring, so some compromise may be necessary.  In such instances, a property in other areas as close as possible to the preferred location may be offered.

   22.Priority assistance housing is not emergency or crisis accommodation.  The Department does not operate crisis accommodation for any person escaping domestic violence. However, Housing division officers can support referrals to access those services that do provide crisis accommodation. These include such services as 360 Health, Centrecare, Anglican WA, Entrypoint and Mission Australia.  These services are outlined in a "Help is Available" handbook.

   …

   28.On 14 June 2019, [JJ] made an application for rental housing assistance.  [JJ] was listed for both the community housing wait list and the public housing wait list.

   29.Any person who contacted the Housing division and is eligible for public housing assistance would have been dealt with in the same way.

   30.[JJ] made an application for Bond Loan Assistance on 14 June 2019.  Department records indicate that [JJ] has also had bonds with the Housing division prior to 2019.

   31.The Department records show that in response to the application for rental housing assistance, [JJ] was listed on the wait list for public housing.  Records of the Housing division at this time do not indicate that [JJ] sought or was interviewed in relation to priority housing assistance.

   …

   35.From January 2020, [JJ] was offered rental properties on 5 occasions, however he declined each offer.  On 22 January 2020, [JJ] was offered Unit 3/29 Seventh Rd, Armadale.  This properly was declined due to medical issues and closeness of neighbouring properties.

   36.On 29 January 2020, [JJ] was offered Unit 10/1937 Albany Highway, Maddington.  This property was declined due to the closeness of neighbouring properties as this was likely to cause his son anxiety.  It was also too far away from hospitals for treatment for [JJ], who suffers with Crohn's Disease.

   37.On 3 February 2020, [JJ] was offered 33 Cordelia Road Armadale.  [JJ] declined this property due to safety concerns for his children and himself due to his expartner and his children's mother alleged previous associations with outlaw motorcycle clubs.

   38.On 6 February 2020, [JJ] was offered 64 Fountain Way Huntingdale.  This property was declined due to schools and hospitals being too far away from the property.

   39.On 10 February 2020, [JJ] was offered 5 Delamere Way Camillo.  This offer of accommodation was initially accepted but at the time of occupation was declined due to [JJ] being in a lease at his current private rental property.

   40.On 24 February 2020, in accordance with the Housing Allocations Policy, [JJ]'s rental application was withdrawn.  [JJ] was provided information regarding the appeals process. 

   41.On 19 April 2021, [JJ] completed the Housing Appeals Mechanism Request form detailing his reasons for appealing this decision.  The appeal process was successful, resulting in [JJ]'s housing application being relisted with the original listing date of 14 June 2019.

   42.On 13 August 2021, [JJ] attended Armadale Housing Office where a Priority Interview was completed.  [JJ] has been requested to provide supporting documentation to support this application.

Findings:  Allegation 1

1. This allegation appears to consist of two contentions.  The applicant's first contention is that there are no refuges for men escaping domestic violence.

2. Implicitly, the applicant argues that he was treated less favourably so far as the availability of a 'service' (that is, crisis accommodation) is concerned based on gender.

3. The Department does not dispute that there are refuges for women escaping domestic violence and none for men.  However, the Department says the evidence establishes that while it provides priority assistance housing it does not provide any crisis accommodation for victims of domestic violence.

4. In essence the Department says it does not provide a service to any persons hence it cannot be found to have discriminated against the applicant.

5. Whether or not an organisation should provide a particular service is a policy decision about which opinions may differ.  That, however, is not a matter with which these proceedings are concerned.

6. The Act is not concerned with what services are provided and by whom.  Rather the only issue is whether in the provision of a service people are treated less favourably in the circumstances that are the same or not materially different on the basis of various attributes one of which is sex.

7. The failure to provide a service to any person cannot give rise to discrimination on the basis of sex as no person, whatever their sex, is treated less favourably.[80]

   [80] Wood v Calvary Hospital (2005) EOC 93-392.

8. I note that Mr Whitehouse acknowledged that the Department outsourced homelessness assessments and referrals to Entrypoint a number of years ago.

9. Mr Whitehouse elaborated on this statement in re-examination:[81]

   The department funds service providers to provide crisis accommodation, both for homelessness as well as for people experiencing or fleeing family and domestic violence.

   …

   So the department doesn't actually employ people to provide those services.  The department funds external providers, such as Centrecare and MercyCare and (indistinct) Wungening who actually provide those.  So non-government organisations.

   [81] ts 112, 8 June 2022.

10. Other than to assert that the Department did not provide refuges for men and children escaping domestic violence, the applicant did not expressly contend that the Department is providing a service by funding non-government organisations who do and is otherwise responsible for the way in which those services were administered.

11. No evidence was provided by either party as to the nature of the Department's funding arrangements with non-government organisations or the extent to which it exercises control if any, over the way in which those services are administered.

12. I draw no adverse inference[82] from the Department's failure to lead evidence in relation to this issue as it was never clearly articulated that this was the basis on which the applicant ran his case.

    [82] See Jones v Dunkel [1959] HCA 8; 101 CLR 298.

13. In those circumstances I find that the applicant has not made out the first contention.

14. I turn now to what I understand to be the applicant's second contention which alleges that the Department failed to assist him with priority housing.

15. The applicant variously advances two propositions.  The first is that he did apply for priority housing on 14 June 2019.  The second is that either as a consequence of a memorandum of understanding (MOU) between agencies or because the Department knew he was homeless when he applied for rental housing on 14 June 2019, the Department failed to put him on the priority housing list.[83]

    [83] Respondent's Book of Documents, Vol 2, page 162.

16. I note that when completing the application for rental housing dated 14 June 2019, the applicant ticked the box marked 'Yes' in response to the question:  'Do you wish to apply for priority housing?'  The form then provides that:  'If yes, please speak with a customer service officer'.

17. It is not clear whether the applicant alleges that:

    1)he spoke to a customer service officer about priority housing in June 2019 but was treated less favourably than a woman in the same circumstances or circumstances that were not materially different in the processing of his application and the provision of accommodation; or

    2)notwithstanding he did not speak to a customer service officer about priority housing, he was treated less favourably than a woman in the same circumstances or circumstances that were not materially different in that the Department should have recognised, whether as a consequence of the MOU or its own knowledge, that he should have been placed on the priority housing list.

18. While the applicant says he applied for priority housing he does not explain what that process involved.  The applicant does not expressly say that upon ticking the box to confirm he wanted priority housing that he then, consistent with the instructions of the form, spoke to a customer service officer and provided the relevant supporting documents or indicated he was unable to provide supporting documentation, as required by the priority housing assistance policy.[84]  Moreover, Ms Marchese's evidence is that there is no record that the applicant sought or was interviewed in relation to priority housing assistance on or around 14 June 2019.  He did, however, apply for bond assistance on that date.

    [84] Respondent's Book of Documents, Vol 3, page 440.

19. Ms Marchese went on to explain that the Department's records show that the applicant attended the Armadale Office on a number of occasions after lodging his application for rental housing to provide additional evidence in relation to his application.  By implication, it would appear that at no time did the applicant speak to a customer service officer about priority housing.

20. While it is possible that the applicant believed he applied for priority housing by completing the rental housing form, based on the available evidence I am not satisfied that in June 2019 he did comply with the instruction on the rental housing form to 'speak with a customer service officer' about priority housing.

21. The alternate proposition, that the Department should have put the applicant on the priority housing list in the absence of him complying with the instruction on the rental housing form to 'speak with a customer service officer' faces an insurmountable difficulty.  To succeed the applicant would need to establish that a woman in the same circumstances or circumstances that were not materially different was or would have been placed on the list notwithstanding she had not sought priority housing.  There was simply no evidence that the Department included women on the priority housing list even though they had not sought out a customer service officer with a view to being placed on the list.

1. As for the assertion that the Department ought to have known that the applicant was in need of priority housing, because of the MOU or its own knowledge, the purpose of the MOU is to enable agencies such as Entrypoint to obtain information regarding family and domestic violence issues.[85]  Other than the case notes dated 29 May 2019 in relation to the applicant's contact with Entrypoint,[86] it is not clear what the Department knew as to the applicant's circumstances on 14 June 2019.  As I have already explained, I am unable to find that the applicant complied with the direction on the rental housing application form to speak to a customer service officer about priority.

   [85] See [139(32)] above.

   [86] Respondent's Bundle of Documents, Vol 2, pages 195 and 196.

2. Accordingly, I find that neither of the contentions capable of constituting allegation 1 have been established.

1. Support and advice for fathers and children

1. The applicant's complaint relevantly says:

   10.Not once have the staff of Armadale DCP been welcoming or inviting or helped with counselling or help with housing or finance.

   11.Yet if I was a woman with kids, I'd be much better off because then Armadale DCP would have provided help with everything and encouragement to help overcome the ordeal with domestic violence.

   …

   29.I received nearly zero help from the DCP although one would think being victims of Domestic violence, and me having ADHD and two dependent children, we should have received a high level of support with counselling, legal help, housing advice and financial aid.  The Department is being biased and one-sided favouring females.

2. The applicant says further that the Department 'guided S into securing legal advocacy by means of a private lawyer to the sum of 11k'.[87]

   [87] Applicant's Closing Submissions, 24 June 2022.

3. As has been typical of the applicant's complaint this allegation is very general in nature and lacks detail.  There is little by way of specific dates as to when the applicant says he asked for assistance, and it was not provided.

4. Apart from a few interactions with the Department that can be identified from the documents, this allegation stands as a general proposition that the Department could have done more to help him but chose not to because he is a man.

5. By way of a comparator the applicant points to S and says she was offered a range of services not made available to him. 

6. In its Statement of Issues, Facts and Contentions, the Department makes the point that it is not clear by what actions or conduct the Department is said to have discriminated against the applicant so far as this allegation is concerned.[88]

   [88] Respondent's Statement of Issues, Facts and Contentions, para 21.

7. The Department does not expressly address the applicant's assertion that its staff were not welcoming or inviting in their dealings with him.  However, the Departmental notes of various interactions with the applicant suggest that staff found him difficult to deal with.  The case notes of the meeting between senior child protection worker, Kathy Middlemass and child protection worker, Clive Lawrence, and the applicant on 3 September 2019 record that the applicant:[89]

   … was difficult to keep on track during the meeting as he would often cut me off when speaking, he would often start to tell a story and then change subject halfway through, he is also evasive when answering questions and provides 'answers' that don't always relate to the questions asked.

   [89] Respondent's Bundle of Documents, Vol 2, page 202.  The Department's case notes dated 29 May 2019 record that Entrypoint made similar observations about the applicant:  Respondent's Bundle of Documents, Vol 2, page 195.

8. At the meeting on 3 September 2019 the applicant raised concerns as to the assistance he received.  The case notes of that meeting record that the applicant claims he was not given any support during the previous assessment.[90]  When asked what support he needed the applicant said he needed financial support and spoke about car payments.  The applicant was advised that this was not something the Department was able to provide.  When asked what other supports the children need, the applicant once again referred to financial support.  The applicant was offered information regarding food hampers, however the offer was declined.[91]

   [90] It is not clear when the 'previous assessment' took place.  If this is a reference to seeking emergency housing in 2016, it is outside the period considered by the Commissioner the subject of referral to the Tribunal.

   [91] Respondent's Bundle of Documents, Vol 3, page 414.

9. It was put to Mr Whitehouse in cross-examination that a female fleeing domestic violence would receive better services 'than nothing and zero dollars spent'.[92]  Mr Whitehouse responded, 'you would get the same services if you were a male victim or a female victim'.

   [92] ts 110, 8 June 2022.

10. Although not posed as a question the applicant raised with Mr Whitehouse whether the Department provides access to child psychologists and specialists[93] and whether the Department buys cars and furniture for people.[94]

    [93] ts 109, 8 June 2022.

    [94] ts 112, 8 June 2022.

11. In re-examination Mr Whitehouse confirmed that the Department does not provide psychologists for children or buy cars or furniture for people who do not have children in the care of the Department.[95]

Findings:  Allegation 2

[95] ts 112, 8 June 2022.

1. The question as to whether the applicant has been the subject of discrimination in relating to housing has been dealt with in allegation 1.  There is no evidence the Department provides 'legal help'.  Accordingly, the failure to provide it to the applicant cannot constitute discrimination, it not being a service the Department provides to anyone.

2. Apart from the applicant's assertion that the Department facilitated S receiving legal support from a private lawyer, there is no probative evidence in support of this proposition.  The applicant does not provide the source of this information or the basis for his belief.  Accordingly, I am unable to make a finding as to what advice, if any, the Department provided to S or how it came to pass that she engaged a private lawyer if in fact, that did occur.

3. Of the remaining complaints the subject of this allegation, that leaves counselling and financial aid.  There is no evidence the Department provides counselling to adults or to children who are not in the care of the Department.  While there is evidence the Department does provide information regarding financial support, the applicant declined the offer.

4. As I foreshadowed earlier the applicant relies on S as a comparator.  The difficulty with using S is that other than the bare statement by the applicant that S received certain services not offered to him, there is no evidence in support of that assertion.  Not only was S not called to give evidence, but the applicant did not provide the evidential foundation on which his assertion is based.

5. I am not satisfied that the applicant has made out this allegation.

1. Allegations of abuse by women treated differently

1. The applicant relevantly says:[96]

   [96] Respondent's Bundle of Documents, Vol 1, pages 67-68.

   …

   16.When I complained that my ex's new partner had physically abused my son and had sexually molested him.  The DCP did not treat me the same as a woman would have been treated if she accused her ex or the ex's partner of physical and sexual abuse (See attached emails dated 20 Feb 2019, 6 December 2019)

   17.I was told by DCP they had 'interviewed' the children and the DCP found nothing had happened.  My son [J] and daughter [L] openly speak about these events!  My children don't lie about these things.

   18.When I asked the DCP when and where the interview took place they lied and claimed the children had ·been interviewed.  (See attached emails dated 6 December 2019)

   19.The same happened when the DCP were told about my son being beaten by his mother in a shower recess.  No action was taken.

   20.But when false accusations were made about me, such as on 2 September 2019, that I had hit my kids and called their mother names, the DCP immediately investigated, and took my children out of [school], without my consent to investigate the false allegations against me.

   21.Then I was forced to sign paperwork about this false allegation.  Kathy from Armadale branch of the DCP pressured me by saying, "if I didn't sign the statement it will look bad in the Family Law Court".  I was forced to sign something that didn't happen.  I was dumbfounded and in shock by this threat about the Family Court, so I signed this false allegation (see attached false statement DCD coerced me to sign).

   22.I actually support an ongoing relationship between my children and their mother.  I have had her over to our house whenever they want to see each other as I know it's safe for the children when I'm there[.]

2. The applicant's case rests primarily on the proposition that because he is a man, the Department did not treat seriously the allegation that his son, J, had been sexually molested by S's new partner.

3. The applicant alleged that when S went out, she left J and her daughter L sleeping in the same bed as S's new partner.  The applicant also alleges that on another occasion S's new partner touched J on the inner thigh.

4. By contrast the applicant says that no action was taken in response to the allegation that J was beaten in the shower by S.

5. By way of comparison the applicant says that when S made allegations that he hit his children and called S names, the Department took those allegations seriously and found them to be substantiated even though they were false.

6. The Department disputes that its approach to investigating the applicant's allegations was influenced by the fact that he is a man.

7. In a memorandum to the Family Court the Department says:[97]

   The Department has not substantiated that the children have been sexually abused.  The Department met with [the applicant] in relation to his concerns that [J] was sexually abused by one of [S's] friends.  [The applicant] asked [J] a number of leading questions and made several assumptions.  [J] was interviewed by workers and made no disclosures regarding sexual abuse.  The Department has not substantiated physical harm in respect of [L] and [J].  Whilst [S] has smacked [J], it appears it was in the form of discipline and excessive force was not used.  Whilst the Department does not condone physical discipline, this does not appear to be physical abuse.  This was the only time she has used physical discipline.  The children made no disclosure of physical harm by [the applicant].

Findings:  Allegation 3

[97] Respondent's Bundle of Documents, Vol 3, page 513.

1. As a basic proposition the applicant's case amounts to the contention that when he (a male) makes complaints, the Department does not take them seriously whereas when S (a female), makes a complaint, it does.  The applicant says that neither his complaint that J was molested by S's boyfriend nor that S smacked J in the shower were taken seriously as both complaints resulted in no action being taken.  On the contrary the complaint against him, apparently made by S, was substantiated.

2. There are a number of problems with the contentions said to support this allegation.

3. First, the applicant has not established that a female made the complaint to the Department about him.  The applicant was informed it was an 'anonymous reliable source'.[98]  He was also informed the source was not S.[99]

   [98] Respondent's Bundle of Documents, Vol 3, page 324.

   [99] Hearing Book, page 524.

4. Second, in my view, it is highly improbable that the Department would refuse to take seriously an allegation of sexual molestation of a child based either partly or wholly on the sex of the parent making the complaint.

5. Third, if as the applicant asserts, the Department discriminates against men, it is reasonable to expect that the Department would have vigorously pursued S's partner, the male who is alleged to have abused J.  It makes no sense that a Department that discriminates against men, would only do so when a man reports sexual molestation of a child but not in the investigation of the complaint of sexual molestation where the alleged perpetrator is a male.

6. Fourth, based on the evidence of the Department, which I accept, the Department did interview J who failed to disclose that any abuse took place.  I note also that the Western Australia Police concluded that they would not conduct any further investigation into the matter.[100]  It is apparent that the outcome of the investigation depended on the evidence provided by J, not the sex of the person who reported the allegation to the Department.

   [100] Letter from Andrew Martin, Acting Detective Superintendent Sex Crime Division to JJ dated 25 April 2021, Respondent's Bundle of Documents, Vol 3, page 509.

7. Fifth, to succeed in establishing he has been the subject of discrimination, the applicant would need to demonstrate that he was treated less favourably than a female in the same circumstances or circumstances that are not materially different.

8. The alleged conduct the subject of the various complaints of child abuse to the Department concern different factual circumstances.  As a consequence, those different factual circumstances are capable of explaining the difference in outcome.  Moreover, although S was found to have hit J, but no further action was taken, the allegation that the applicant hit his children was not substantiated.

9. The fact that the applicant was the subject of an unrelated allegation which was found to be substantiated does not of itself establish that he was treated less favourably on the basis of sex.

10. Similarly, the fact that the applicant believes the Department should have further investigated his notification that J was sexually molested does not, without more, establish that the Department's decision not to do so, was as a consequence of the applicant's gender.

1. Men unfairly forced to take drug tests

1. The applicant relevantly says:

   23.I have been subject to random urine analysis when in fact we are the victims of domestic violence.  The DCP ordered countless random urine analysis, possibly close to 15 which I have passed.  I have just finished the latest 40 days of random urinalysis which has nothing to do with the current falsified case of me hitting the children and calling their mother names.

   24.I told the DCP at the very beginning I had adult ADHD for which I take prescription Dexamphetamine.  My urinalysis will show dexamphetamine in the urine analysis.

   25.While the DCP has forced me to have drug tests, I know the DCP has not required the children's mother to be drug tested.  When the Court's required her to be drug tested she failed the test.  Here is another example of the Department treating men differently to women.

2. As is apparent from the portion of the applicant's complaint reproduced above, he asserts that notwithstanding there is no difference between his and S's respective positions as parents, only he was subjected to random urinalysis by the Department.

3. Ms Middlemas interviewed the applicant on 3 September 2019 as part of a child safety investigation concerning J and L.  Ms Middlemas testified that the purpose of the investigation was to assess if a child has been harmed through emotional abuse, family and domestic violence, sexual abuse, physical abuse or neglect.  The investigation included assessing the parents' capacity to protect their child and determine if the child is in need of protection.

4. As part of the investigation Ms Middlemas is required to assess the impact on the child of any suspected drug use by the parents.  If a parent admits to drug use, as S had done, it is necessary to speak with the parent about having a safety plan when using drugs to protect the children.

5. Ms Middlemas said that where a parent does not admit to using drugs, but the case worker suspects otherwise, the parent can be requested to complete urinalysis testing as confirmation.  Urinalysis testing will also confirm if medication being taken is consistent with any diagnosed medical condition reported by the parent.  According to Ms Middlemas at the meeting with the applicant on 3 September 2019, the applicant presented as erratic, jumped from topic to topic and was difficult to understand.  As a consequence of the applicant's behaviour and his history of drug use, he was requested to undergo urinalysis and signed an agreement to that effect.

6. In cross-examination, Ms Middlemas explained that S was not subject to random urinalysis because it was not necessary given that she admitted to her drug use.[101]

   [101] ts 100, dated 8 June 2022.

7. Ms Middlemas went on to explain that during her meeting with the applicant on 3 September 2019 he said he had not used methamphetamines for about six months.  Ms Middlemas formed the view that the applicant may be under the influence of drugs as he was quite erratic during the meeting.

8. Ms Middlemas also said that the applicant had a history of drug use as during a previous child safety investigation he had tested positive for methamphetamines when undertaking urinalysis.  On that occasion the applicant accused S of spiking his chicken nuggets.[102]

Findings:  Allegation 4

[102] ts 101, dated 8 June 2022.

1. It is apparent from the evidence of Ms Middlemas that in her view, there were differences between the circumstances pertaining to the applicant and S that explained why only the applicant was subjected to random urinalysis.  Whereas S had admitted to drug use, the applicant said he had not used methamphetamines for six months.[103]  In addition, the applicant had tested positive to methamphetamines during urinalysis imposed in the course of a previous child safety investigation.  According to Ms Middlemas, the applicant's erratic presentation during the meeting on 3 September 2019 was inconsistent with his stated position that he had not used methamphetamines for some time.

   [103] ts 100, dated 8 June 2022.

2. While I appreciate that there may well be a medical explanation for the applicant's erratic behaviour, I accept Ms Middlemas' evidence that she wanted to ensure the applicant was not using drugs.

3. As I have explained earlier, to succeed in establishing he has been treated less favourably than a person of the opposite sex, the applicant needs to identify a female whose circumstances are the same or not materially different.

4. Based on the objective information available to Ms Middlemas, the applicant's circumstances were significantly different to those of S whom he cites as a comparator.  Whereas S's drug use was not in dispute, for the reasons set out above, the applicant's drug use was.

5. Accordingly, I find that allegation 4 has not been established.

1. The manner in which the applicant's complaint was dealt with by Sylvia Gulliver

1. The relevant passage of the applicant's complaint together with a portion of Ms Gulliver's email about which the applicant complains has been reproduced in paragraphs [126] - [127] above.

Findings:  Allegation 5

1. As I explained in paragraph [128] above there is no objective basis on which it can be said that Ms Gulliver's email is capable of being characterised as alienating or bullying.

2. As a corollary, alienating or bullying conduct, even if established, without more is not unlawful discrimination unless it is proved that the conduct was directly or indirectly, at least in part, as a consequence of gender.

3. This allegation cannot succeed absent the applicant in the first instance establishing that the email is alienating or bullying.  It clearly is not.

1. The provision of female caseworkers

1. As I have already explained in [94] - [97] above, this allegation is misconceived in that it does not identify with sufficient particularity any service in relation to which the applicant was the subject of discrimination.

2. This allegation cannot succeed.

Conclusion

1. For the reasons set out above the complaint is dismissed.

Orders

The Tribunal orders:

1.The application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MR J O'Sullivan, SENIOR MEMBER

30 NOVEMBER 2022