Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Christopherson v The Star Pty Ltd [2024] NSWCATAD 58 Hearing dates: 21 September 2023, 12 October 2023 Date of orders: 06 March 2024 Decision date: 06 March 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: D Dinnen, Senior Member Decision: 1. Leave is granted under s 96(1) of the Anti-Discrimination Act 1977 for the Applicant's complaint regarding the incident of 4 September 2022 to proceed with respect to: (a) Direct and/or indirect age discrimination in contravention of ss 49YZA and 40YZN of the Act; (b) Indirect disability discrimination in contravention of ss 49B(1)(b) and 49M(1)(a) of the Act in relation to the requirement to provide secondary identification in the form of a bank card; and (c) Victimisation in contravention of s 50 of the Act with respect to the Applicant's complaint of age discrimination by: (i) Asking the Applicant to leave the premises; (ii) Referring the Applicant to police; and (iii) After 4 September 2022, issuing the Applicant with a WOL letter. 2. Leave is refused under s 96(1) of the Anti-Discrimination Act 1977 in relation to the remainder of the Applicant's complaint. 3. The matter is listed for case conference on Wednesday, 27 March 2024, at 2.00pm. Catchwords: HUMAN RIGHTS – Discrimination – equal opportunity – provision of services - age discrimination - disability discrimination – direct or indirect – victimisation - leave required for complaint to proceed – principles applying to grant of leave Legislation Cited: Anti-Discrimination Act 1977 Casino Control Act 1992 Casino Control Regulation 2019 Liquor Act 2007 Cases Cited: Abela v State of Victoria [2013] FCA 832 Bonella & Ors v Wollongong City Council [2001] NSWADT 194 Catholic Education Office v Clarke (2004) 138 FCR 121 Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Jones v Ekermawi [2009] NSWCA 388 Langley v Niland [1981] 2 NSWLR 104 New South Wales v Amery (2006) 230 CLR 174 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Sklavos v Australasian College of Dermatologists [2017] FCAFC 128 Tate v Rafin [2000] FCA 1582 Walker v Victoria [2011] FCA 258 Waters & Ors v Public Transport Corporation (1991) 173 CLR 349 Wiggins v Department of Defence - Navy [2006] FMCA 800; 200 FLR 438 Texts Cited: None cited Category: Principal judgment Parties: Liam Christopherson (Applicant) The Star Pty Ltd (Respondent) Representation: Counsel: M Foran (Respondent) Solicitors: Applicant (Self-Represented) Gadens Lawyers (Respondent) File Number(s): 2023/00268076 Publication restriction: Nil reasons for DECISION 1. On 4 September 2022 between the hours of 2:30am and 3:00am Liam Christopherson (the Applicant) and his sister attempted to enter the Star Casino in Sydney, managed by The Star Pty Ltd (the Respondent). They were asked for their identification by the security officer in attendance at the entrance. The Applicant showed his digital NSW driver licence, and was then asked to provide a secondary form of identification. 2. Ultimately the Applicant did not provide the secondary form of identification requested, complained of "ageism", asked to speak to the security officer's supervisor, and began filming the incident on his phone. After being asked to leave, the Police (who were close by) were called to remove the Applicant. During this interaction with the Police, the Applicant allegedly suffered a panic attack, and was taken to hospital in an ambulance. 3. The Applicant claims that he suffers from social anxiety, which made the interactions on the night in question more difficult. Following this incident, the Applicant was informed by the Respondent that he had been issued with a notice of withdrawal of licence (WOL), meaning that he was prohibited from entering the casino in the future. 4. On or around 7 February 2023 the Applicant made a complaint to Anti-Discrimination NSW (ADNSW), alleging that the Respondent engaged in the following conduct in contravention of the Anti-Discrimination Act 1977 (NSW) (the Act): 1. Disability Discrimination in contravention of ss 49A-49B and 49M of the Act; 2. Age discrimination in contravention of ss 49YZA and 40YZN of the Act; and 3. Victimisation in contravention of s 50 of the Act. 1. The Applicant alleged that the Respondent was vicariously liable for the actions of its employees pursuant to s 53 of the Act. 2. On 14 August 2023, the delegate of the President of ADNSW declined the complaint under s 92(1)(a)(i) of the Act on the basis that she was satisfied that the complaint was lacking in substance. At the Applicant's request, the President referred the complaint to the NSW Civil and Administrative Tribunal (the Tribunal) as required by s 93A of the Act. Pursuant to s 96(1) of the Act, leave must be granted by the Tribunal for the complaint to proceed. 3. A hearing on the question of whether leave ought to be granted by the Tribunal took place on 21 September 2023 and 12 October 2023 by AVL. The Applicant provided the Tribunal with written and oral submissions, a letter from a psychologist identifying his diagnosis of PTSD, moderate depression and severe anxiety manifesting as panic attacks (panic disorder) following a traumatic incident in 2018, copies of his driver's licence, membership card to The Star Club, a USB containing video of the incident recorded by him, video transcript, invoice from NSW Ambulance, WOL letter dated 5 September 2022, a copy of The Star Sydney Security Department Standard Operating Procedures, extracts from The Star's Incident Register, Workers Compensation certificate of capacity from 2018 and an invoice from his psychologist for an attendance on 18 September 2023. 4. The Respondent opposed leave being granted and provided with Tribunal with written and oral submissions, a copy of the Star Sydney's "Security Operation Order 01-2022 Requirement for Secondary Proof of Age", and a heavily redacted email from 5 September 2022 to STAR Security Managers titled "Daily Ops Meeting – Weekend Edition (2nd Sept – 4th Sept) containing a reference to an incident report identifying the Applicant as being issued "WOL for Behaviour" for "CHRISTOPHERSON provided Police with false identification and also was issued with a Fail to Quit fine." 5. At the hearing I explained to the Applicant the nature of a leave hearing and what was required of an application under s 96 of the Act. I explained that he would need to demonstrate to the Tribunal that it was just and fair in the circumstances for leave to be granted, in line with the authorities in Jones v Ekermawi [2009] NSWCA 388 (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 (Ekermawi). I explained that the Tribunal would accept the evidence he provided to the Tribunal at its highest for the purpose of determining whether leave ought to be granted. 6. For the reasons that follow, I have decided to grant leave for parts of the Applicant's complaint to proceed, and refused leave for the remainder. Legal Principles 1. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act. 2. Where the President decides to accept a complaint under s 89B, she must investigate that complaint: s 90(1) of the Act. If the President is satisfied at any time of the investigation that the complaint is lacking in substance, she may decline the complaint in whole or in part: s 92(1)(a)(i). A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22]. 3. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if she has received a written request from the complainant to do so: s 93A of the Act. 4. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act. 5. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones at [58]; Ekermawi at [25]. That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60]. 6. In determining whether to grant or refuse leave for a complaint to proceed pursuant to s 96(1) of the Act, the applicant's evidence must be taken at its highest - that is, everything the applicant has put in evidence is accepted as true - and then the Tribunal determines whether he could possibly succeed in his complaint of discrimination: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]). 7. If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act. Disability Discrimination in the provision of goods and services 1. Section 4 of the Act defines disability to mean: (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. 1. The Act defines disability to include past, future and presumed disability: 49A Disability includes past, future and presumed disability A reference in this Part to a person's disability is a reference to a disability— (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability). 1. Section 49B outlines what conduct constitutes discrimination on the ground of disability: (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator— (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. ... 1. Section 49M provides: 49M Provision of goods and services (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability— (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services. 1. For direct disability discrimination it is necessary that the disability explains the treatment or conduct of the discriminator which resulted in the less favourable treatment: Sklavos v Australasian College of Dermatologists [2017] FCAFC 128 (Sklavos) at [23]. It is therefore necessary to show the discriminator was aware of the disability: see Tate v Rafin [2000] FCA 1582 at [65], [67] and [68]; Wiggins v Department of Defence - Navy [2006] FMCA 800; 200 FLR 438 at [67]. In the matter of Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 (Nicholls) the Appeal Panel of the then Administrative Decisions Tribunal stated at [28]: The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person's sex, race, disability, etc (including the extended definitions of those grounds) is at least one of the 'real', 'genuine' or 'true' reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. 1. Indirect discrimination is concerned with a requirement or condition that operates differentially on a person with that disability, as compared with a person who does not have that disability. The causal link with the victim's disability is with the impact of the discriminator's conduct upon the disabled person: Sklavos at [23]. To make out his complaint of indirect disability discrimination, the Applicant needs to satisfy the Tribunal of each of the following elements: 1. The Respondent required him to comply with a requirement or condition. The phrase "to comply with a requirement or condition" imports the notion of compulsion or obligation (see Walker v Victoria [2011] FCA 258 [189] to [194] per Tracey J). The requirement or condition must also be of general application and not directed to the Complainant specifically: see Abela v State of Victoria [2013] FCA 832 at [92], [99] (Abela). In addition, the requirement or condition must be explicitly imposed, or implicit in the conduct which is said to be discriminatory (see Waters & Ors v Public Transport Corporation (1991) 173 CLR 349 at 360 per Mason CJ and Gaudron J 393 per Dawson and Toohey JJ and at 407 per McHugh J). 2. A substantially higher proportion of persons who do not have the Applicant's disability are able to comply with the requirement or condition. To undertake that comparison it is necessary to identify the relevant "base group" to whom the requirement is directed (Bonella & Ors v Wollongong City Council [2001] NSWADT 194 at [77]). The Act does not prescribe the composition of that group which will vary according to the circumstances of the case. 3. The requirement is not reasonable having regard to the circumstances of the case. 4. The Applicant does not or is not able to comply with the requirement or condition. 5. The imposition of the requirement or condition: 1. constituted a refusal by the Respondent to provide the Applicant with goods or services; or 2. concerned the terms on which he or she provided the person with those goods or services. 1. It is necessary that the actual requirement or condition be formulated by the Applicant with some precision: see New South Wales v Amery (2006) 230 CLR 174 at 212 (per Kirby J); Catholic Education Office v Clarke (2004) 138 FCR 121 at [103]. Age Discrimination in the provision of goods and services 1. Section 49YZA of the Act defines age discrimination: (1) A person ("the perpetrator" ) discriminates against another person ("the aggrieved person") on the ground of age if the perpetrator-- (a) on the ground of the aggrieved person's age or the age of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's age if it is done on the ground of the person's age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group. 1. Section 40ZYN is in similar terms to s 49M: 49ZYN PROVISION OF GOODS AND SERVICES (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of age-- (a) by refusing to provide the other person with those goods or services, or (b) in the terms on which the other person is provided with those goods or services. (2) Nothing in subsection (1) applies to or in respect of-- (a) benefits, including concessions, provided in good faith to a person by reason of his or her age, or (b) holiday tours offered or provided to persons who are of a particular age or age group. (3) Nothing in this section renders it unlawful for a person to discriminate against a person on the ground of age in disposing of goods, or in providing services, by gift or will or in accordance with the terms of a gift or will. 1. Significantly, the Act proscribes exceptions to age discrimination being unlawful in certain circumstances, including s 49ZYQ in relation to legal capacity: 49ZYQ LEGAL CAPACITY AND WELFARE OF CHILDREN Nothing in this Part-- (a) affects the operation of a law that relates to the legal capacity or the legal entitlements, obligations or disqualifications of persons who are under 18 years of age, or (b) affects the operation of a law the object of which is to protect the welfare of those persons, including provisions of the criminal law that are designed to protect them. Victimisation 1. Section 50 makes it unlawful to subject a person victimised to detriment on the grounds that they have made or could make a complaint under the Act: (1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has-- (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. 1. As discussed in Nicholls at [37]: 'One of the things listed in s50(1)(a) to (d) was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment. As for complaints of discrimination, for that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment.' Consideration Age discrimination 1. The Respondent accepts that it requires individuals under the age of 25 to provide a secondary form of identification, but submits that s 49ZYQ of the Act applies to exclude that conduct from being unlawful. Referring to the Liquor Act 2007 (NSW) (as applied by Schedules 5 and 6 of the Casino Control Regulation 2019 (Applied Provisions)) and the Casino Control Act 1992 (NSW) (CCA) which govern their operation, they submitted that because these contain provisions prohibiting the entry of persons under the age of 18 years and proof of age requirements, they are therefore "laws" that "relate to… legal entitlements, obligations or disqualifications of persons who are under 18 years of age" or laws "the object of which is to protect the welfare of those persons". 2. Section 126 of the Applied Provisions provides: If— (1) a responsible person for a hotel, club premises, small bar or licensed public entertainment venue is aware that a person (the relevant person) who may reasonably be suspected of being under the age of 18 years is attempting to enter the licensed premises, and (2) the presence of the relevant person on the licensed premises would, if the relevant person were under the age of 18 years, be an offence under this Act, the responsible person must refuse the relevant person entry to the premises unless there is produced to the responsible person an evidence of age document that may reasonably be accepted as applying to the relevant person and as proving that the relevant person is of or above the age of 18 years. 1. Similarly, section 95 of the CCA provides: (1) If a casino operator or a casino employee is aware that a person who may reasonably be suspected of being a minor is attempting to enter the casino, the casino operator or employee must refuse the person entry to the casino. Maximum penalty— (a) for a casino operator—1,000 penalty units, or (b) for a casino employee—50 penalty units. (2) A casino operator or employee is not required to refuse the person entry if there is produced to the casino operator or employee acceptable proof of age for the person. 1. A casino operator (such as the Respondent) is guilty of an offence under s 94 of the CCA if a minor enters the casino. 2. The Respondent developed and adopted policies including the "2021 Standard Operating Procedures" and the "Security Operation Order 01-2022 Requirement for Secondary Proof of Age", which specified what types of identification were acceptable to it, how and when to obtain identification, including the policy of requesting secondary identification from those under the age of 25. The Respondent submitted that these policies ensured compliance with the Applied Provisions and the CCA, and were: …a rational and defensible procedure of asking persons who appeared under the age of 25 years to produce a secondary form of identification. The practice adopted was also consistent with the responsible service of alcohol (RSA) course (required under part 5 of the Liquor Regulations 2018) which provided that the best practice for ascertaining the age of patrons includes asking for secondary identification where necessary. 1. The Applicant submitted that the defence under s 49ZYQ does not apply because these provisions placed no legal obligation on the Respondent to request a secondary form of identification from persons under 25 years, and that s 94(3) of the CCA contains a defence to "protect" the Respondent for persons over 14 years who have presented an acceptable form of proof of age: "(3) It is a defence to a prosecution for an offence under subsection (1) or (2) if it is proved that— (a) the minor was above the age of 14 years, and (b) before the minor entered the casino, or while the minor was in the casino, there was produced to the casino operator or to his or her agent or employee acceptable proof of age for the minor." 1. If requiring an individual to comply with a policy imposing an additional requirement on the basis of age is "less favourable treatment", then the Respondent's conduct is prima facie direct age discrimination within the meaning of s 49YZA(1)(a) of the Act. Taking the Applicant's evidence at its highest, applying the authorities referred to above at [21], the Applicant's age is at least arguably one of the real, genuine or true reasons for the treatment of being asked by the Respondent to produce a secondary ID. 2. It is not entirely clear whether the exception to s 49ZYQ applies in the circumstances. The exception refers to the protection of minors. The Applied Provisions and the CCA do not expressly impose requirements on individuals because they are under the age of 25. Merely because the Respondent asserts that policies are created for one purpose doesn't mean that their effect doesn't go beyond that stated purpose into unlawful discrimination. 3. I therefore disagree with the finding of the President of ADNSW that this part of the Applicant's complaint is lacking in substance. Taking into consideration all of the circumstances, it is fair and just to grant leave for the Applicant's complaint of direct age discrimination to continue. 4. In relation to the Applicant's complaint of indirect age discrimination, the Respondent submitted that there was no evidence persons under the age of 25 are unable to comply with a requirement to produce a secondary form of identification. I agree with that, but a claim of indirect discrimination is not limited to the ability to comply – the legislation refers to "does comply" and "does not comply", in addition to the ability to comply. This is a factual matter which the Applicant will need to ultimately prove. 5. The Applicant's claim is that it wasn't a broad requirement by the Respondent to provide secondary ID, but a more narrow requirement imposed that he provide that secondary identification in the form of a bank card. On his evidence, he offered other forms of secondary identification, including his Star Casino membership card, which were deemed unacceptable by the employee. The Respondent disputes this evidence, referring to its policy identifying a number of different forms of acceptable secondary identification. 6. Accepting the Applicant's evidence for the purpose of these leave proceedings, and taking the Applicant's evidence at its highest, it is arguable that the Respondent imposed a requirement on the Applicant, with which he was unable to or did not comply, which a majority of persons over the age of 25 were able to or did comply, and which was not reasonable in the circumstances. I therefore disagree with the finding of the President of ADNSW that this part of the Applicant's complaint is lacking in substance. 7. Taking into consideration all of the circumstances, it is fair and just to grant leave for the Applicant's complaint of indirect age discrimination to continue. Disability discrimination 1. The Applicant identified his disability as PTSD, moderate depression, severe anxiety and panic disorder and provided evidence in support of these conditions. For the purpose of this leave application, I accept that evidence and that the Applicant has those disabilities, and his evidence that his interactions with the Respondent's employees and the police on 4 September 2022 triggered the symptoms of his disability. 2. I agree with the Respondent's submission that there was no evidence suggesting it was aware of the Applicant's disability at the time of the incident, so a direct disability discrimination complaint must fail. 3. With respect to the Applicant's complaint of indirect disability discrimination, the Applicant submitted that the following requirements or conditions were imposed on him by the Respondent: 1. Without prior knowledge or notice, have on his person, a secondary form of ID by way of bank card. 2. Understand the reasoning for their request for a bank card without explanation and accept this without question. When this was questioned, talk over the top of him and provide no time for de-escalation or a reduction in stress experienced during the situation. 3. Leave their premises without explanation, immediately. 4. Be referred to NSW police in approximately 60 seconds without sufficient explanation as to why. 5. Exhibit behaviour that the Respondent prefers. 6. Receive letters from the Respondent threatening further police action if they are near the Respondent's venues. Within the letter, provide a contact method for questioning and then provide no response. 1. The Applicant's submissions addressed all of the requirements and conditions imposed on him as a whole. Addressing the question of whether a substantially higher proportion of person without his disability would have been able to comply, the Applicant stated: A substantially higher proportion of persons who do not have the Complainant's disabilities would be able to comply with the Respondent's requirements and conditions. They would not exhibit characteristics such as panic and psychological stress when exposed to these conditions or requirements for entry and as such, would be able to comply with them. Referral to police is an extremely confrontational condition imposed on a person and for persons with PTSD, would cause them to exhibit different behaviour than those who do not have PTSD. A person without PTSD and panic disorder may not exhibit any behaviour whatsoever. A person with PTSD and panic disorder will always exhibit panic and alternative behaviour when referred to Police. 1. Addressing the reasonableness of the conditions or requirements imposed, the Applicant further stated: The requirements imposed by the Respondent were not reasonable with regards to the circumstances of the case. A requirement for secondary ID is unreasonable when logically, a valid proof of age document is understood to be sufficient as per Liquor and Gaming guidelines. A requirement for a bank card contravenes Gamble Aware NSW's guidelines for responsible gambling, especially for persons with mental health issues such as anxiety and depression. Gamble Aware NSW's website states the following: i) You should consider setting stricter rules around gambling or not gambling at all if you: - Have mental health issues such as anxiety and depression ii) If you're going to gamble in a casino, club or pub, you can leave your bank and credit cards at home and only take cash you are happy to spend – and can afford to lose. The requirement imposed by the Respondent for bank cards to be brought to their venue is recognized by Gamble Aware NSW to have an unfair and disproportionate impact on persons with anxiety and depression. The Complainant's disabilities prevent him from complying with such a requirement or condition of entry and it is recognized that a substantially higher proportion of persons without the Complainants disabilities would be able to comply without significant detriment caused. The requirement imposed by the Respondent for persons to leave their premises immediately and be referred to police would be easily dealt with by persons who do not have anxiety, depression, PTSD and panic disorder. The Complainant has these disabilities and as such, was not able to comply. 1. Addressing each of the requirements or conditions claimed by the Applicant to have been imposed on him in turn, the Respondent accepted that it was a condition of entry into its casino that patrons who appeared under the age of 25 years produce a secondary form of identification. The Respondent also accepted that the failure to comply with its entry requirements (which included producing secondary identification) resulted in a refusal to provide services. It submitted that the Applicant could not establish: 1. that the secondary ID had to be a bankcard, based on its policy; 2. that a substantially higher proportion of persons without the Applicant's disability are and were able to comply with that condition; 3. that the Respondent's policy of requiring secondary ID was not reasonable; and 4. that the Applicant was unable to comply with the requirements because of his disability. 1. The Applicant's evidence provides a link between his inability to provide a bankcard as a secondary form of identification to the Respondent on 4 September 2022, and his disability. For the purpose of this leave application, the Tribunal will accept the Applicant's evidence that his depression and anxiety prevented him from carrying a bankcard with him to the Casino. The Tribunal will also accept that this requirement disproportionately affects persons with the Applicant's disability. 2. The Respondent relies on the submission that the Applicant cannot establish that the secondary form of identification requested had to be a bankcard. The video evidence of the interaction between the Applicant and the Respondent's employees starts part way through the interaction, with the only requirement expressed as "a secondary ID". 3. The Applicant's evidence is that this specific requirement was made of him, and that his sister was witness to this. There is thereby evidence which, taken at its highest, would support the Tribunal finding that the specific form of secondary ID which is linked to the Applicant's disability was required by the Respondent as a condition of entry to the Casino on 4 September 2022. Whilst the policy of requiring secondary identification would likely be considered reasonable, it is less certain that specifically requiring the Applicant provide a bankcard would be reasonable in the circumstances. 4. In my view, having considered all of the circumstances, it would be fair and just for leave to be granted for the Applicant's indirect disability discrimination complaint to proceed in relation to the requirement for him to provide a bankcard as secondary identification, which resulted in the refusal of services by the Respondent. 5. With respect to the conditions or requirements alleged by the Applicant to have been imposed on him by the Respondent outlined at 41(2) to 41(5) above, the Respondent submitted that: 15. RQ2 to RQ5 are not requirements or conditions imposed by the Respondent on patrons generally and are not the types of requirements or conditions to which the AD applies: see Abela above. Rather they appear to be allegations of "less favourable treatment" to which the direct discrimination complaint is directed. 16. In any event, it is not clear how they are requirements or conditions of the service provided by the Respondent and the Respondent submits they are not. 1. It is difficult to understand how the Applicant alleges that this conduct constitutes the imposition of condition or requirements by the Respondent. In his written submissions, he states: The requirement imposed by the Respondent for persons to leave their premises immediately and be referred to police would be easily dealt with by persons who do not have anxiety, depression, PTSD and panic disorder. The Complainant has these disabilities and as such, was not able to comply. 1. This submission addresses only 41(3) and 41(4) above, and there were no submissions made with respect to the other alleged conditions or requirements imposed. Even if the Tribunal accepted that that the Respondent imposed a requirement to "leave the premises immediately and be referred to police", accepted that the Applicant was unable to comply with the requirement because of his disability, and also accepted that persons without the Applicant's disability comply with that requirement where persons with the Applicant's disability could not, the evidence demonstrates the Applicant commenced filming the Respondent's employee without permission and would not leave when requested, which supports a finding that any such requirement was reasonable in the circumstances. 2. I agree with the Respondent that the Applicant's complaints outlined at 41(2) to 41(5) above are better understood as "less favourable treatment" experienced by the Applicant, rather than a condition or requirement imposed on him. Additionally, the Applicant's allegation outlined at 41(5) above is too vague to be properly understood. In circumstances where I have found that there cannot be any direct disability discrimination because the Respondent was not aware of the Applicant's disability, I do not consider it would be fair and just for leave to be granted for those parts of the Applicant's complaints to proceed. Victimisation 1. The Applicant alleges that he was victimised by being asked to leave the premises, referred to the Police, and issued with a WOL letter because he made an age discrimination complaint to the Respondent. 2. The Applicant's evidence, including the video footage provided to the Tribunal, demonstrates that he very quickly expressed to the Respondent's employees that he believed their conduct towards him was ageism. This supports a finding that s 50(1)(c) of the Act could apply if a) the Respondent's conduct towards him was considered detrimental and b) the "real, genuine or true reason" for the conduct was because the Applicant raised the prospect of a discrimination complaint on the basis of age. 3. The Respondent submitted that the evidence of the reason for the Respondent issuing the WOL is set out in the "Incident Register" and a record entitled "Daily Ops Meeting - Weekend Edition (2nd Sept - 4th Sept)", which lists "for behaviour" and "CHRISTOPHERSON provided Police with false identification and also was issued with a Fail To Quit fine." The Respondent submitted that the complaint of victimisation was speculative because the documentary record of the incident made no mention of the Applicant's allegations of ageism. 4. The documentation of the incident on 4 September 2022 is the Respondent's version of events. Taking the Applicant's evidence at its highest, the Applicant's complaint of victimisation has some substance. He has provided evidence to the Tribunal of the detriment he claims to have suffered as a result of being excluded from the Casino and the police being called. Should the matter proceed, it will be up to the Tribunal to determine whether or not the Applicant's evidence supports it finding that one of the real, genuine or true reasons for being asked to leave the premises, being referred to police, and being issued with a WOL letter was because he raised the prospect of an age discrimination complaint against the Respondent with its employees. 5. Bearing in mind that a denial of leave will terminate the Applicant's ability to pursue his rights in relation to this incident, and on the basis that the complaint has some substance, in my view it would be fair and for this part of his complaint to proceed. Conclusion 1. In my view on the material before me, on the basis of the matters discussed above, it is fair and just for leave to be granted to the following parts of the Applicant's complaint regarding the incident on 4 September 2022 to proceed pursuant to s 96(1) of the Act: 1. Direct and/or indirect age discrimination in contravention of ss 49YZA and 40YZN of the Act; 2. Indirect disability discrimination in contravention of ss 49B(1)(b) and 49M(1)(a) of the Act in relation to the requirement to provide secondary identification in the form of a bank card; and 3. Victimisation in contravention of s 50 of the Act with respect to the Applicant's complaint of age discrimination by: 1. Asking the Applicant to leave the premises; 2. Referring the Applicant to police; and 3. Issuing the Applicant with a WOL letter. 1. The remainder of the Applicant's complaint is refused leave. Orders 1. Leave is granted under s 96(1) of the Anti-Discrimination Act 1977 for the Applicant's complaint regarding the incident of 4 September 2022 to proceed with respect to: 1. Direct and/or indirect age discrimination in contravention of ss 49YZA and 40YZN of the Act; 2. Indirect disability discrimination in contravention of ss 49B(1)(b) and 49M(1)(a) of the Act in relation to the requirement to provide secondary identification in the form of a bank card; and 3. Victimisation in contravention of s 50 of the Act with respect to the Applicant's complaint of age discrimination by: 1. Asking the Applicant to leave the premises; 2. Referring the Applicant to police; and 3. After 4 September 2022, issuing the Applicant with a WOL letter. 1. Leave is refused under s 96(1) of the Anti-Discrimination Act 1977 in relation to the remainder of the Applicant's complaint. 2. The matter is listed for case conference on Wednesday, 27 March 2024, at 2.00pm. ********* I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 March 2024