The applicant's Charter claim was summarily dismissed under s 75 of the VCAT Act, following the earlier summary dismissal of his discrimination claim under the Equal Opportunity Act 2010 (Vic). The Tribunal held that where a discrimination claim is summarily dismissed because the impugned conduct does not fall within any 'area of life' regulated by the EO Act (and thus VCAT lacks jurisdiction under the enabling enactment to determine unlawfulness), the applicant is not a person who 'may seek any relief or remedy' otherwise than because of the Charter for the purposes of s 39(1), and the Charter claim cannot independently survive. The Tribunal preferred the 'factual availability' construction of s 39(1) over the 'abstract availability' construction advanced by the Victorian Equal Opportunity and Human Rights Commission as intervenor, reasoning that mere standing to lodge an application is insufficient — the applicant must have an entitlement to obtain relief under an enabling enactment in respect of which VCAT retains jurisdiction. The question of whether references to Commonwealth legislation by a self-represented applicant raised a federal matter depriving VCAT of jurisdiction was resolved in the negative, the Tribunal finding the references were legally incoherent and did not constitute justiciable 'matters' within ss 75–76 of the Constitution.
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