Federal Court of Australia

Maksacheff v Commissioner of Police (WA) [2023] FCA 406

ORDERS

THE COURT ORDERS THAT:

1.    Leave under s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) to bring the application filed on 15 July 2022 is refused.

2.    The interlocutory application filed on 30 August 2022 is dismissed.

3.    On or before 17 May 2023 the respondent may apply for any special costs order by filing and serving an outline of written submissions of no more than five pages in length.

4.    The proceeding is otherwise dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACKSON J:

1    The applicants, Daniel and Agnieszka Maksacheff, seek leave under s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) to commence a proceeding in this Court. The application they want to bring involves allegations of unlawful discrimination by a police officer under the Disability Discrimination Act 1992 (Cth) (DDA). The respondent is the Western Australian Commissioner of Police.

2    The discrimination is said to have arisen out of things that happened on 3 June 2021, after the applicants had disembarked a domestic flight at Perth Airport. They claim that a police officer demanded that they wear a face mask before they could leave through the arrivals gate. The applicants say that this involved discrimination on the ground of a disability because, it is alleged, each of them had medical conditions that prevented them from safely wearing a face mask.

3    Each of the applicants made a complaint to the Australian Human Rights Commission (AHRC). On 16 May 2022, the AHRC terminated the complaints under s 46PH(1)(a) and s 46PH(1B)(a) of the AHRC Act on the grounds that the alleged acts were not unlawful discrimination and the complaints were misconceived and lacking in substance.

4    The applicants then made an application to this Court, purportedly under s 46PO(1) of the AHRC Act, alleging unlawful discrimination. I say purportedly because, since their complaints had been terminated on the grounds just indicated, s 46PO(3A)(a) provided that the application was not to be made unless the Court had granted leave. The applicants had neither sought nor obtained leave at the time they filed the application. It is therefore arguable that the application was not competent, because it was made in contravention of the section: see e.g. Praljak v Bond University [2022] FCA 1439.

5    On 30 August 2022, however, the applicants made an interlocutory application seeking leave to proceed with the application. That was more than 100 days after the termination of the complaints, where s 46PO(2) of the AHRC Act requires an application alleging unlawful discrimination to be made within 60 days or within such further time as the court concerned allows. There may be a question as to whether the AHRC Act permits leave to be applied for or granted after the 60 days has passed. There may also be a question about whether it was necessary for the applicants to seek an extension of time under s 46PO(2) (which they have not done). However, the Commissioner of Police has not taken any point about whether leave can be granted retrospectively, or about the time limits. It is therefore appropriate to proceed on the assumption that it remains open to the Court to grant leave under s 46PO(3A)(a), and that, if applied for, an extension of time would have been granted.

6    Rather than rely on any procedural ground, the Commissioner of Police opposes the application for leave on the basis that the applicants have not established that they have a reasonably arguable claim for unlawful discrimination. For the following reasons, I agree, and leave will be refused and the proceeding dismissed in respect of each of the applicants.

The allegations of unlawful discrimination

7    The circumstances alleged to have given rise to the applications appear from a 'statement of claim' attached to the originating application, and from complaints lodged with the AHRC that are annexed to an affidavit of Robert Grealy sworn on 17 October 2022. It is important to say at the outset that the circumstances appear in those two places as allegations only. The truth of the allegations is unsupported by any evidence. The applicants have not made any affidavits personally deposing to the events described in the application or complaints, or regarding their alleged disabilities. Mr Grealy is a lawyer for the applicants and his affidavit goes no further than to annex the complaints, the State Solicitor's Office's letter to the AHRC in response and the AHRC's notices terminating the complaints. The applicants were given an opportunity to file any further affidavits containing any relevant evidence, but they did not take that up. As a result, neither Mr Grealy, the applicants, nor anyone else attests to the truth of any of the allegations made. So on the face of the materials before the Court, there is no evidence that any of the events apparently relied on actually happened.

8    Further, the nature of the disabilities from which the applicants are said to suffer is not described, let alone evidenced. In the statement of claim the applicants allege that on 3 June 2021 they 'suffered from individual medical conditions that prevented them from safely wearing a face mask'. They also claim they told the relevant police officer that they suffered from medical conditions that 'made it unsuitable for them to wear face masks' and in their separate but essentially identical complaints they refer to their alleged disabilities in similar terms. But what the disabilities might be is not disclosed, let alone supported by evidence.

9    The applicants' allegations, which are no more than allegations, are as follows. After disembarking an aircraft at Perth Airport together, and upon reaching the arrivals gate, the applicants were stopped by a police officer who demanded that they each wear a face mask before they could go through the arrivals gate. The demand was related to the COVID-19 pandemic and the Airport and Transportation (Face Mask) Directions made under the Emergency Management Act 2005 (WA) (Face Mask Direction). There was also a demand allegedly made about using hand sanitiser, but that does not form the basis of any complaint of discrimination, and I will not mention it further.

10    The applicants allege that they each told the police officer that they suffered from medical conditions that made it unsuitable for them to wear face masks. This wording appears to be derived from the Face Mask Direction which stated at paragraph 3(b) that, unless an authorised officer directed otherwise, a person must wear a face mask at all times while they are at an airport unless they had 'a physical or mental illness, condition or disability which makes wearing a face mask unsuitable'.

11    The police officer is said to have then demanded that the applicants produce 'medical exemptions' in relation to their inability to safely wear a face mask. The applicants are said to have told the officer that they did not 'lawfully have to carry "medical exemptions" with them'. The officer told them that if they refused to wear a face mask, they would be refused access through the arrivals gate. The applicants asserted that the officer was not permitted to impede their passage through the airport. The officer apparently asserted that he had the power to do that, and that the applicants would not be allowed to pass 'unless they complied with his demands' (in the statement of claim the officer is described as male but in the complaints the officer is described as female). The applicants say that they then put on face masks 'under duress' so that they were allowed to exit the airport.

The complaints to the AHRC

12    There are discrepancies between the statement of claim and the complaints to the AHRC, but there is no need to spell them out or to try to resolve them. The unlawful discrimination alleged in the court application must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint, or the discrimination must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint: s 46PO(3) of the AHRC Act. Despite the discrepancies, the proposed application meets those requirements.

13    In their complaints, the applicants relied on s 24 of the DDA, which makes it unlawful for a person who provides services to discriminate in certain ways (as described in more detail below). In terminating the complaints, the delegate of the President of the AHRC made findings that the actions taken by the WA Police officers were to protect the public from the 'pandemic outbreak of COVID-19 and/or to assist Perth Airport to manage its compliance with the Directions', which was a provision of a service to the community 'as a collective', rather than the provision of a service to an individual as is required by s 24 of the DDA (relying on Bickle v State of Victoria (Victoria Police) [2020] FCA 168 at [19]). The delegate was therefore satisfied that the applicants' complaints were misconceived, as they were based on an incorrect understanding of how the law applies.

14    The delegate then went on to state that even if it could be determined that the WA Police were providing a service as required by s 24 of the DDA, there was insufficient information to support a claim of direct or indirect discrimination by the WA Police based on the information provided to the AHRC. In relation to direct discrimination, it appeared to the delegate that everybody at the airport was required under the Face Mask Direction to wear a face mask unless they could take the benefit of an applicable exception. The delegate could not see how the applicants could claim they were treated less favourably because of their disabilities compared to any other person, with or without a disability. It appeared to the delegate that the applicants were approached because they were not wearing a face mask, not because of any disability. Any traveller without a disability who was not wearing a face mask would have been treated in the same way.

15    In relation to indirect discrimination, it appeared to the delegate that the WA Police had imposed a general requirement that people entering the airport were to wear masks unless they could take the benefit of an exception. The delegate considered that there was insufficient information before her to show that the applicants were unable to comply with that requirement because of their disability and that people with the disability more broadly were unable to comply. The nature of the disability had not been disclosed to the AHRC. The delegate was therefore satisfied that the complaint was lacking in substance.

16    The delegate also considered that s 30 of the DDA, concerning requests for information in connection with unlawful discrimination, might be relevant. But that has not been raised in the present application, so it is not necessary to summarise the delegate's reasons in that regard.

The requirement for leave and relevant provisions and principles

17    It is convenient to summarise the relevant provisions and the principles concerning disability discrimination, and applications for leave to commence proceedings, before describing the parties' cases.

Provisions about unlawful disability discrimination

18    As will be seen, the applicants seem to allege both direct and indirect discrimination. Direct disability discrimination on the ground of a disability is defined in s 5(1) of the DDA to occur when, because of the disability, a person (the 'discriminator') treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different. Omitting to make or propose to make reasonable adjustments in certain circumstances is also defined as direct discrimination in s 5(2), but the allegations here do not engage that part of the definition.

19    Section 6(1) of the DDA defines indirect disability discrimination as occurring when:

(a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

(c)    the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

20    This does not apply if the requirement or condition is reasonable having regard to the circumstances of the case, with the burden of proving that effectively falling on the respondent: s 6(3) and s 6(4). Once again, there is a further definition of indirect discrimination in s 6(2) which the allegations in this case do not engage.

21    Conduct that falls within the definition of direct or indirect discrimination will not be unlawful unless it occurs in certain protected areas of life set out in Part 2 of the DDA. The applicants submit that two such areas are relevant here. The first is access to premises; s 23 makes it unlawful to discriminate by, among other things, refusing to allow the aggrieved person 'access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use': s 23(a). The second is the provision of goods, services and facilities; s 24 makes it unlawful for a person who provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability by refusing to provide them with those goods or services or to make those facilities available to them.

The requirement to obtain leave to commence the proceeding

22    Mortimer J (as she then was) considered the requirement for leave under s 46PO(3A)(a) in James v WorkPower Inc [2018] FCA 2083. Her Honour's statement of the principles has been applied in numerous subsequent cases. In summary:

(1)    Like other judicial discretions under which leave may be granted to take a step in a proceeding, the interests of the administration of justice are a governing consideration. The amendments to s 46PO in 2017 which introduced the leave requirement had a clear purpose, and any consideration as to where the interests of the administration of justice lie must give weight to that purpose (at [31]).

(2)    That purpose was to provide a filter. The amendments removed what was previously an entitlement to bring a proceeding in this Court once a complaint was terminated (at [32]). Mortimer J reached that view after considering s 46PO in its statutory context. In particular, leave is not required where the complaint is of public importance (s 46PH(1)(h)) or where it was terminated because there was no reasonable prospect of the matter being settled by conciliation (s 46PH(1B)(b)), which implicitly recognises that the complaint is reasonably arguable (at [33]-[36]).

(3)    Therefore it is appropriate for the Court to consider whether the claims made by an applicant are reasonably arguable and are, at least, not fanciful. That bar is not particularly high as the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources which would likely be consumed by dealing with the proceeding (at [37]).

(4)    The Court should not embark on a detailed consideration and determination of the merits of an applicant's underlying arguments about unlawful discrimination. Questions of fact and law which are arguable should be determined at trial (at [39]).

23    No submissions were addressed to me on whether the decision of the High Court (in a different context) in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 impacts on this last point, and I will proceed on the basis that it remains good law.

24    In James at [38] Mortimer J also outlined a range of other factors that may be taken into account. But it is always necessary to satisfy the Court that a proposed application is reasonably arguable before leave will be granted: Matthews v Markos [2019] FCA 1827 at [37] (Abraham J).

25    In Wilson v Britten-Jones (No 2) [2020] FCA 1290 at [86], Abraham J said:

Properly read, James v WorkPower was not setting two different standards, with it necessarily being sufficient to simply determine whether the claim is fanciful or not, it being a lesser standard than reasonably arguable. Content is given to that term by the purpose of s 46PO(3A) as described in James v WorkPower, and as explained inter alia, at [43]. There must currently exist in the material relied on a factual basis to establish that the applicant's claim is reasonably arguable. Although questions of fact and law which are arguable are to be determined at the final hearing there must be a rational factual substratum for the allegations: James v WorkPower at [39], [43]. In other words, there must be some factual basis for the claims, even at a threshold level which is what is required for leave.

I respectfully agree.

The applicants' proposed case

26    There is no claim of direct disability discrimination in the statement of claim. But in their submissions, the applicants say that when they told the police officers (referred to in the plural this time) 'that they suffered medical conditions that made it unsafe to wear face masks, the officers directly discriminated against them by demanding the production of their medical information'.

27    As for indirect disability discrimination, the statement of claim alleges that the Police Commissioner's conduct was indirectly discriminatory in instructing or allowing police officers to do three things. The first was to 'profile people not wearing masks' and impede their progress through the airport. The second was to demand that unmasked persons produce a 'medical exemption' to prove that they suffered a medical condition that made it unsuitable to wear a face mask. The third was to prevent persons from going through the airport unless they wore a face mask, even when they said they suffered a medical condition that made it unsuitable to do so.

28    The particulars given as to why these things were indirectly discriminatory are as follows:

i.    A large proportion of Australians suffer from medical conditions (including, but not limited to, asthma, lung complaints, breathing disorders, psychological trauma and illnesses, heart conditions and skin conditions) which make it unsafe for them to wear a face mask (the Affected Group);

ii.    By reason of their Disabilities, the Applicants were part of the Affected Group;

iii.    The Affected Group suffered from medical conditions that prevented them from complying with any public health direction concerning face masks; and

iv.    By automatically excluding anyone not able to provide proof that they suffered from a medical condition that made it unsuitable to wear a face mask [the respondent] discriminated against the Affected Group and the Applicants.

29    The statement of claim also alleges that by 'inciting' the police officer to engage in discriminatory conduct, the Police Commissioner breached s 43 of the DDA, which makes it an offence to incite the doing of an act that is unlawful conduct under, relevantly, Division 2 of the DDA, in which s 23 and s 24 are found.

30    The applicants' submissions rely on both of those provisions. In relation to the first, it is said that s 23(a) of the DDA has been breached because of the conduct of the police officer(s) in preventing the applicants from further traversing the airport. In relation to the second, it is said that s 24(a) of the DDA has been breached because the police officer(s) were present at the request of 'the Airport Police' (whoever they may be), and so were providing services to them (the Airport Police) when they 'accosted the Applicants'.

31    According to the applicants, 'there was no public health direction in place that allowed or required the officers to demand the production of a person's private medical information if they were not wearing a face mask'. Nor were the officers permitted to demand the production of that information under any other Western Australian legislation. The applicants submit that they 'told the officers that they suffered from medical conditions that made it unsafe to wear a face mask. At that time, any reasonable suspicion ended, and the officers had no legislative power to enquire further or demand the production of private medical information'. They also submit that 'It is beyond argument that a reasonable person in the officers' position would have known that some people would suffer from medical conditions that would make mask wearing unsafe or unsuitable'.

32    The submissions also assert that it is not sufficient to say that the officer(s) only 'accosted' the applicants because they thought that they were breaching the Face Mask Direction, as they 'accosted the Applicants because they were not wearing face masks BECAUSE they suffered from a protected medical condition'. This is expressly put as a claim of indirect discrimination.

33    The statement of claim makes a number of general factual allegations about the effectiveness of face masks and other measures in reducing the risk of transmitting the virus that causes COVID-19. It would appear from the submissions that this goes to the question of whether the requirement or condition contained in the Face Mask Direction was reasonable, as the applicants submit that there was 'no legitimate reason' for the alleged discriminatory conduct because, among other things, it 'was highly unlikely that SARS-COV2 would be spread inside the Airport by any person' and '[m]asks do very little to stop the transmission of viral particles'. On the view I have taken of the matter, there is no need to go into this aspect of the applicants' case. There is also a reference to the International Covenant on Civil and Political Rights but there is no suggestion that it has been enshrined in domestic law beyond the DDA and AHRC Act which the applicants invoke independently.

34    The applicants claim that they have suffered anxiety and depression as a result of the allegedly unlawful conduct, and seek general and aggravated damages.

The applicants' case is not reasonably arguable

35    For the following reasons, the applicants have not put any reasonably arguable case of unlawful discrimination before the Court.

There is no evidence

36    I made the point at the outset that there is a complete absence of any evidence to the effect that any of the things which are said to have happened actually did happen. The application therefore fails to put a factual basis to establish that the applicants' claim is reasonably arguable. There is no rational factual substratum for the allegations. It would be contrary to the interests of the administration of justice to allow a claim to advance on the basis of speculation that witness evidence and other evidence might be adduced at some point might support the case. This by itself is sufficient ground to dismiss the application for leave.

The applicants' alleged disability or disabilities is unknown

37    But it is even worse than that. I have also made the point that, not only is there no evidence of the alleged events, the nature of the asserted disability or disabilities is not specified. The closest the applicants get is to say in the statement of claim that they are members of a group that suffers from conditions that make it unsafe for them to wear a face mask, which include 'asthma, lung complaints, breathing disorders, psychological trauma and illnesses, heart conditions and skin conditions'. It is not said from which of these various conditions they suffer. Since this list is expressly without limitation, they may allegedly suffer from different conditions again. It is not known whether the applicants are said to suffer from the same disability or different ones.

38    The existence and nature of an alleged disability are obviously fundamental to any claim for disability discrimination. Under s 5(1) of the DDA, direct discrimination only occurs if less favourable treatment is because of the disability. Under s 6(1)(b), there is only indirect discrimination if, because of the disability, the applicant does not or would not comply, or is not able or would not be able to comply, with the relevant requirement or condition. To make an application alleging unlawful disability discrimination without saying what the disability is, much less providing evidence of it, is frivolous and vexatious.

39    It appears from the complaints to the AHRC that this omission is a deliberate choice by the applicants. Each of the complaints say that the 'complainant is not required by law (Australian Privacy Principles) to provide evidence' to support their contention that they suffer from a medical condition that prevents them from safely wearing a face mask. But where the applicants seek leave to put a claim of disability discrimination in this Court, they must state what their alleged disabilities were, and must provide at least some evidence of the disabilities, in order to satisfy the Court that it would be appropriate to permit their claims to proceed. They have not done so. This too is sufficient basis to dismiss the application for leave.

The complaint does not identify any direct discrimination

40    The complaint of direct discrimination is simply that when the applicants told the police officers that they suffered from medical conditions that made it unsafe to wear face masks, the officers demanded production of 'medical information'. The applicants do not identify any provision of the DDA on which they seek to rely in their claim for direct discrimination. I have already indicated that since the applicants make no allegation concerning reasonable adjustments, they can only be relying on s 5(1) of the DDA. That requires comparison between the treatment which the discriminator gives to the aggrieved person and the treatment that the discriminator would give to a person without the disability in circumstances that are the same or not materially different: Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 at [213]-[214].

41    The complaint here does not make any such comparison, nor does it provide a basis on which a comparison could be made. The minimum circumstances that must be posited to be the same, or not materially different, are that the applicants and the hypothetical comparator persons were in Perth Airport without face masks during the time in which the Face Mask Direction was being enforced. There is no suggestion in any of the materials that the police officers would have treated the comparators more favourably. Any such suggestion would be far-fetched; the idea that the police would have let an unmasked person who did not have, and did not assert, a relevant disability pass through the airport unimpeded, while at the same time stopping people who claim to have a relevant disability, is incredible.

42    If a further circumstance is posited as the same - that the applicants and the comparator were in Perth Airport without face masks during the time in which the Face Mask Direction was being enforced and they each asserted that they suffered from medical conditions that made it unsuitable to wear face masks - there is still no basis for thinking that the police officer(s) would have treated the comparator differently. In such a circumstance, there is no reason to think that the police officer(s) would have required the applicants, but not the comparator, to produce a medical exemption.

43    The claim of direct disability discrimination is incoherent and fanciful and it would not be in the interests of the administration of justice to permit it to proceed.

The claim does not disclose indirect discrimination

44    The claim of indirect discrimination also faces numerous obstacles. I have already mentioned the most obvious one: the applicants refuse to say what their disabilities were, and have not provided any evidence of the disabilities. The claim of indirect discrimination thus breaks down because no arguable basis is disclosed for thinking that the applicants could not comply with any relevant requirement or condition because of their disability, or that the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

45    The applicants' argument as to causation, that the officers 'accosted' them (imposed a requirement) because of their disability, does not support any finding of indirect discrimination. It must be their inability to comply with the requirement, not the imposition of the requirement, that is caused by the disability. This they cannot establish.

46    Also, the applicants have not sufficiently identified the nature of the requirement or condition the police are said to have imposed so as to give rise to indirect discrimination. The judgment of Gleeson CJ in State of New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 shows that it is important to pay close attention to the nature of the alleged requirement or condition. Here, it seems, it could be either or both of two things: a requirement to wear a mask when passing through the airport; or a requirement to produce medical evidence of a medical condition that makes wearing masks unsuitable, in order to be permitted to pass through the airport. The applicants' materials put some emphasis on the latter, as the complaint made in the particulars is that the police 'automatically' excluded from the airport 'anyone not able to provide proof that they suffered from a medical condition that made it unsuitable to wear a face mask'. If it is the requirement to provide proof that is the relevant requirement, it is impossible to see how that could have resulted in indirect discrimination, because there is no basis in the allegations to suggest that the applicants' disability was the cause of their failure or refusal to produce evidence of the disability. Any claim that it was would be incoherent.

47    The above is sufficient to compel the conclusion that the claim of indirect discrimination must fail. It is also appropriate to note two other respects in which it is problematic, as they were the subject of submissions from the Commissioner.

48    First, the Commissioner submits that even if there was unlawful discrimination, it did not occur in one of the protected areas of life in Part 2 of the DDA. The first area that is relevant here concerns public premises: DDA s 23. The Commissioner submits that s 23 did not apply because he did not have any control of or authority over access to or use of the airport in the sense contemplated by that section. The submission appears to be that s 23 cannot apply to a person who was not the owner, occupier, operator or controller of the airport.

49    While as a matter of construction that is arguable, I do not consider it necessary to determine this application on that basis, or appropriate to do so in the absence of full argument. The only authority on which the Commissioner relies, Ellis v FJM Property Pty Ltd (No 2) [2019] FCCA 1821 at [26], is potentially distinguishable because the judge's comments there appear to be directed to a situation where the claim was made on a mistaken assumption that the respondent had some interest in the relevant premises or the business conducted on them. The status of the police as (arguably) controlling access to the airport for the purposes of the Face Mask Direction may put them in a different category.

50    As for the other potentially relevant area of life, s 24, the applicants' claim there is plainly incoherent. Their allegation is that the police on behalf of the Commissioner were providing a service, not to the applicants, but to 'the Airport Police'. But all the forms of discrimination enumerated in s 24 involve the provision of services to the aggrieved person or a refusal to provide those services to the aggrieved person (or, similarly, making facilities available to the aggrieved person or refusing to do so). Even if the Western Australian Police were providing services to 'Airport Police', that could not found a claim of discrimination by the applicants. So any claim under s 24 must fail.

51    Second, the Commissioner also submits that his conduct was reasonable, and that this is an insurmountable obstacle in the way of the applicants' complaint: see s 6(3) of the DDA. I agree that the applicants' case in relation to this issue appears weak. Gleeson CJ's judgment in Amery indicates that one reason it is important to identify the requirement alleged to give rise to indirect discrimination is that the reasonableness of the respondent's conduct must be judged by reference to the requirement. Here, it is the conduct of the Commissioner (or his officers) in imposing the requirement that is to be judged as reasonable or not: see Amery at [3], [15]. Importantly, it is not the Face Mask Direction itself that is alleged to be discriminatory here. It is what the officer(s) did at the airport that is said to have involved discrimination, and the alleged conduct of the Commissioner in instructing or allowing them to do it: cf. Amery at [17]. The Face Mask Direction is but one of the circumstances against which the conduct of the respondent must be judged: see Amery at [13].

52    Here it is a particularly important circumstance. The police officers were at the airport in order to ensure compliance with the Face Mask Direction. That direction imposed legal obligations which it was their responsibility to enforce. I have described the relevant obligation to wear a mask above, including the exception which applies when a person has a 'physical or mental illness, condition or disability which makes wearing a face mask unsuitable'. In that context, it is difficult to see how it could have been unreasonable for the police officers to require people who were unmasked, and who did not produce evidence of such a physical or mental illness, condition or disability, to wear a mask before being allowed to move through the airport. In imposing that requirement, the officers were giving effect to the Face Mask Direction, which had force of law under s 86 of the Emergency Management Act.

53    The submissions made by the applicants do not articulate relevant unreasonableness in any coherent way. As I have said, they do not clearly identify the requirement that was allegedly imposed, but in connection with reasonableness they do seem to place emphasis on an alleged requirement to produce medical evidence. The submissions say that the police officers 'were not permitted to demand the production of the Applicants' private medical information under the provisions of any WA state legislation' and that there was 'no reasonable ground on which the officers could presume that the Applicants were committing an offence'. The submissions assert that once the applicants told the officers that they suffered from medical conditions that made it unsafe to wear a face mask, 'any reasonable suspicion ended'. This amounts to an assertion that where a person who may be committing an offence tells a police officer that they have a lawful excuse, the police officer must take the person at their word, and it is not reasonable for the officer to inquire further or require verification of the excuse. That only needs to be stated to be seen to be false.

54    I therefore agree that it appears likely that the conduct of the police officer(s) in imposing any relevant requirement was reasonable. But as I have indicated, it is open to characterise the relevant requirement, not as the requirement to produce medical evidence of the disability, which seems to have been reasonable, but also as a broader requirement not to proceed through the airport without a mask. Also, I am conscious that the question of reasonableness is a question of fact that depends on all the circumstances, and also that the burden of proof for that question would be on the Commissioner. In relation to this defence then, the absence of evidence may be an issue for the Commissioner. I therefore will not dismiss the application for leave on the ground that the conduct of the police officer(s) in imposing any relevant requirement was reasonable. It is enough to dismiss it on the bases that it lacks any evidentiary foundation, and that the alleged disabilities have not been particularised or otherwise described, and that the apparent complaint that indirect discrimination arose from a requirement to produce medical evidence is incoherent.

Conclusion

55    The proposed application is manifestly deficient. To purport to bring it in this Court without putting on any evidence capable of establishing it, and while refusing to particularise the key requirement of a disability, was to abuse the process of the Court by, at least, bringing proceedings that were manifestly groundless: see Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75 at [27] (French CJ, Gummow, Hayne and Crennan JJ). That abuse persisted when the applicants pursued the necessary leave to proceed. Leave will be refused.

56    The Commissioner seeks his costs of the proceeding and in view of the result must be entitled to those costs. However, in light of these reasons and the observations just made, I will give him liberty to apply within two weeks for any special order as to who should be responsible for payment of those costs, and on what basis they should be assessed. Further directions will be made giving the applicants or any other affected person the ability to respond if such an application is made. If no application is made within that time, the applicants will be ordered to pay the respondent's costs of the proceeding on a party-party basis.

Associate:

Dated:    3 May 2023