DE ALWIS and COMMISSIONER FOR CORRECTIVE SERVICES
[2016] WASAT 52
•11 MAY 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: DE ALWIS and COMMISSIONER FOR CORRECTIVE SERVICES [2016] WASAT 52
MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 11 MAY 2016
FILE NO/S: EOA 51 of 2013
BETWEEN: VIJITHA DE ALWIS
Applicant
AND
COMMISSIONER FOR CORRECTIVE SERVICES
Respondent
Catchwords:
Impairment Discrimination Direct discrimination Indirect discrimination Goods services and facilities in a prison Requirement or condition
Legislation:
Equal Opportunity Act 1984 (WA), s 4(1), s 66V(1), s 66V(2), s 66A(1), s 66A(3), s 66K(1), s 66ZF(1), s 89(1), s 90, s 90(2), s 107
Racial Discrimination Act 1975 (Cth)
State Administrative Tribunal Act 2004 (WA), s 48
Result:
Application dismissed
Summary of Tribunal's decision:
The applicant was at the relevant time a prisoner serving a sentence at Casuarina Prison. He made a complaint to the Equal Opportunity Commissioner against the Commissioner for Corrective Services that he was unlawfully discriminated against on the ground of impairment.
It was common ground that the applicant has an 'impairment' as defined in the Equal Opportunity Act 1984 (WA) being Diabetes Mellitus Type II. He requires regular injections of insulin, following which he must eat or risk having a hypoglycaemic attack.
The applicant claimed that in circumstances where he was required to have his insulin injection at 11 am in the health centre of the prison which is some distance away from his cell, he was not then given sufficient time to prepare and consume a meal before 'lockdown' at 11.45 am.
The applicant says that this is direct discrimination on the ground of impairment, because he was treated less favourably than a prisoner who does not have diabetes who would not need to have an insulin injection, prepare and consume food and be back in his cell, all within the space of 45 minutes. He also says this constitutes indirect discrimination on the ground of impairment because the requirement or condition that he must return to his cell by 11.45 am is one which a prisoner suffering from diabetes would have more difficulty complying with.
The Equal Opportunity Commissioner dismissed the complaint as lacking in substance and, at the applicant's request, referred the complaint to the Tribunal.
The Tribunal considered the applicant's claim of both direct discrimination and indirect discrimination and dismissed both of these claims. The Tribunal accepted that the applicant suffered from an impairment but on the question of direct discrimination did not consider that the applicant was being treated less favourably than other prisoners without that impairment. All prisoners are required to abide by the rules of the prison, irrespective of whether or not they suffer from diabetes.
On the question of indirect discrimination on the ground of impairment, the issue was whether or not the requirement or condition that the applicant has an insulin injection at 11 am and must be back in his cell by 11.45 am operates in a way which discriminates against prisoners who suffer from diabetes. The Tribunal concluded that this was not the case. The applicant as a sufferer from diabetes is allowed to keep food in his cell, whereas other prisoners are not so allowed. The relevant requirement or condition therefore does not include a requirement that the applicant must prepare and consume food before entering his cell at 11.45 am.
The applicant also alleged discrimination on the ground of his age and other medical conditions. However, as those matters were not investigated or referred by the Equal Opportunity Commissioner, the Tribunal did not have jurisdiction to consider them.
Accordingly, the application was dismissed.
Category: B
Representation:
Counsel:
Applicant: In Person
Respondent: Mr M Jenkin
Solicitors:
Applicant: N/A
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Australian Medical Council v Wilson, Hastings & Morgan (1996) 68 FCR 46
Commonwealth Bank of Australia v Human Rights & Equal Opportunity Commission (1997) 80 FCR 78
De Alwis v The State of Western Australia [No 2] [2015] WASCA 42
Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251
Edoo v Minister for Health [2010] WASAT 74
Laurent v Commissioner of Police [2009] WASAT 254
McKenzie v McKenzie (1970) 3 All ER 1034
New South Wales v Amery (2006) 230 CLR 174
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92
Summerville and Department of Education & Ors [2006] WASAT 174
Waters v Public Transport Corporation (1991) 173 CLR 349
Zangari v St John Ambulance Service [2010] WASAT 6
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This matter comes to the Tribunal by way of a referral from the Commissioner for Equal Opportunity (Commissioner) dated 6 November 2013. The referral was made pursuant to s 90(2) of the Equal Opportunity Act 1984 (EO Act). That section provides that, where the Commissioner has dismissed a complaint under s 89(1) of the EO Act, a complainant may require the Commissioner to refer the complaint to the Tribunal.
The applicant had made a complaint to the Commissioner about the respondent while the applicant was serving a prison sentence at Casuarina Prison. He complained of unlawful discrimination on the ground of impairment in the area of services and facilities. The Commissioner was satisfied that the complaint was lacking in substance and dismissed it.
The applicant's complaint to the Commissioner was extensive and manifold. Relevantly, it included the allegation that he had been denied food by a prison officer despite being an insulin-dependent diabetic. Following a compulsory conference at the Tribunal, the parties agreed that this specific aspect of the complaint was the only complaint which the applicant would pursue in this proceeding.
Given the very lengthy delays in programming this matter to a final hearing, the parties also agreed to proceed on the basis that the applicant's factual case would be taken at its most favourable to the applicant and any submissions would be confined to legal argument about whether the facts as alleged constituted unlawful discrimination under the EO Act. If that did not prove to be determinative of the outcome of the proceeding, the Tribunal could then make orders for the filing of witness statements and other evidence of fact.
The parties then filed submissions, including a submission from both parties that this issue be determined on the basis of documents without a hearing. The Tribunal considers that this is an appropriate way to proceed in this case.
History of proceedings
On 6 November 2013, the Commissioner under s 90 of the EO Act referred the applicant's complaint to the Tribunal.
This matter has a protracted history in the Tribunal which is consistent with this observation made by McLure P in De Alwis v The State of Western Australia [No 2] [2015] WASCA 42 at [15]:
[The applicant] has a long history of seeking extensions of time and/or adjournments of hearings of courts and other tribunals invariably on the basis of ill health.
However, the delays in this proceeding are not entirely based on the applicant's ill health.
Although the initial referral was in 2013, the Tribunal only reserved its decision in relation to the legal issues to be determined in this matter in February 2016. The delay was due in part to the applicant's ill health, in part to the applicant's allegations that he was being denied access to his relevant legal documents and also to the numerous interim applications filed by the applicant.
As the matter proceeded, the applicant filed increasingly voluminous submissions with the Tribunal, some of which are in part illegible and incomprehensible. It is therefore helpful to outline a brief chronology of this proceeding, as well as clarifying the documents upon which I am relying to reach my decision.
On 28 March 2013, the Commissioner received a complaint from the applicant alleging unlawful discrimination by the respondent on the ground of impairment. While the facts and circumstances alleged are more fully set out below, the complaint the subject of these proceedings was essentially that the applicant had been denied food despite being an insulin-dependent diabetic.
After investigating the matter, on 3 October 2013 the Commissioner wrote to the applicant advising that his complaint had been dismissed as lacking in substance.
The Commissioner then referred the complaint to the Tribunal under s 90(2) of the EO Act on 6 November 2013. The complaint which the Commissioner referred to the Tribunal was discrimination on the grounds of an impairment, namely Diabetes Mellitus Type II.
When the applicant attended Tribunal hearings it was by videoconference from prison. Towards the end of 2015, the applicant no longer attended hearings due to his ill health, but his daughter attended and spoke for him.
I will refer to the involvement of the applicant's daughter again later in these reasons.
Following an initial directions hearing, the matter was referred for mediation on site at Casuarina Prison. The mediator reported that the mediation was terminated on 9 December 2013.
On 11 December 2013 the respondent applied to strike out the applicant's application on the basis that it was misconceived or lacking in substance. That application was listed for a hearing on 7 January 2014. However, that application was then withdrawn and the hearing was adjourned to a final hearing on its merits on 10 March 2014.
The applicant filed two lengthy handwritten documents on 31 January 2014. Those documents are for the most part impossible or at least difficult to read but the applicant says that they set out the evidence on which he intends to rely. They also include general complaints about his treatment in prison.
The respondent then filed its bundle of documents on 11 February 2014.
At this stage, the applicant complained for the first time (but not the last) to the Tribunal that he was being denied access to his legal materials, and the matter was listed for a directions hearing. In reply, the respondent filed an affidavit of Mr Keith Orringe, a Senior Officer at Hakea Prison, who deposed that the applicant could access his legal materials, which were stored in the applicant's property store in the prison reception area, and set out the process for doing so.
It should be noted that, while the Tribunal understood that these 'materials' related to this proceeding, it transpires that the 'materials' to which the applicant was alluding may have in fact been 'the files and documents he had … to prepare his Appeal against the conviction and the Appeal against the Sentence and the Application to Remove them to the High Court …'; applicant's amended statement of issues, facts and contentions dated 16 August 2015 at page 9, paragraph 9 (applicant's amended SIFC).
On 18 February 2014, the applicant was given further time to file documents. The final hearing date was vacated and the matter was referred for further mediation on 10 March 2014. That mediation was adjourned to 27 March 2014, again to take place on site at Casuarina Prison.
On 27 March 2014, the mediator reported that the mediation had again been terminated. The parties were ordered to file their statements of issues, facts and contentions and the matter was listed for a final hearing on 20 June 2014. The orders also provided that if the applicant failed to comply with these orders, the matter may be struck out pursuant to s 48 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The applicant subsequently wrote to the Tribunal on 7 April 2014 and 23 April 2014, again stating that he had been denied access to his legal materials.
On 19 February and 14 April 2014, the Tribunal wrote to the applicant enclosing a book of documents for his use.
The applicant filed a lengthy affidavit dated 14 May 2014. However, he did not file a statement of issues, facts and contentions.
He also wrote to the Commissioner on 18 May 2014, again complaining that he had been denied access to his legal materials, which was preventing him from complying with Tribunal orders.
By now the applicant was receiving medical treatment in Royal Perth Hospital. On 11 June 2014, the Tribunal made orders adjourning the hearing on 20 June 2014. The matter was eventually listed for another directions hearing on 23 July 2014.
On 2 July 2014, the Tribunal received a request from the applicant to issue summonses requiring a number of prison officers to attend the final hearing. However, the request contained a number of technical errors, and related to a hearing that had been vacated.
On 4 July 2014, the Tribunal was provided with a copy of a letter from the applicant addressed to the State Solicitor's Office, making various requests of the respondent. Those requests included the filing of some documents which the applicant says are relevant to his case.
On 21 July 2014, the Tribunal received correspondence from the applicant's daughter, who, as I mentioned previously, was assisting him in relation to this matter. The applicant's daughter is a legal practitioner, but stated that she did not appear in that capacity before the Tribunal, but rather as support for her father. She said that she was inexperienced in this area of law and that her evidence may be relevant to the determination of this dispute. She claimed that she was appearing in the limited role of a McKenzie friend; McKenzie v McKenzie (1970) 3 All ER 1034. Even though her involvement went beyond the role of a McKenzie friend, and over objection from the respondent on this point, I allowed the applicant's daughter to assist her father in this proceeding.
On 21 July 2014, the matter was further adjourned until October 2014, in order to allow the applicant time to receive further medical treatment.
On 23 July 2014, the applicant's daughter wrote to the Tribunal again complaining that her father had been unable to access his legal materials.
In October 2014, the applicant was given a further extension until the end of November 2014 to file his statement of issues, facts and contentions. The applicant's daughter once more wrote to the Tribunal stating that the applicant's legal materials had been removed.
The Tribunal sought further clarification of the position regarding the applicant's papers and materials from the respondent's legal representative, who on 14 November 2014 advised that she had made enquiries of the respondent in this regard. The respondent, through his solicitor, explained that due to the large volume of material this was considered to be a fire hazard and the prison therefore would not allow the applicant to have his files all at once in the cell. As such, the files were stored in a separate room within his unit. When the applicant requested another box of files, the arrangement was that he returned the previous box from his cell. This position was clarified with the applicant's daughter, who stated that the applicant was unaware of this arrangement and that she would explain it to him.
Then on 18 November 2014, the Tribunal received an interim application from the applicant for an 'injunction' allowing him to access legal materials. This document may have pre-dated the respondent's explanation of the position regarding the applicant's legal materials.
On 26 November 2014, the applicant sought and the Tribunal made formal orders allowing the applicant's daughter to appear in the proceeding, but only as support for the applicant. The applicant's daughter assisted the applicant to prepare a statement outlining the applicant's submissions on the Tribunal's jurisdiction in this matter. That document was filed on 26 November 2014.
On 5 December 2014, the Tribunal received a further interim application from the applicant stating that his files had been forcibly removed from his cell.
The applicant's daughter wrote to the Tribunal in January 2015 supporting her father's interim application and seeking the Tribunal's assistance in restoring her 'official visitor status' at the prison. She also requested that a number of prisoners and prison officers be called as witnesses in the matter, and sought further documents from the respondents. The applicant's daughter also suggested that a further mediation may be useful.
On 21 January 2015, I referred this matter to a compulsory conference in an attempt to confine and clarify the issues in this matter. That conference was held at Casuarina Prison.
On 21 January 2015, the Tribunal received an affidavit from the applicant, which appears to complain generally of his treatment in prison. The applicant's daughter filed a statement in support on 7 February 2015.
It was at this stage that, following the compulsory conference in February 2015, the applicant's daughter wrote to the Tribunal on her father's behalf and confirmed that, in relation to his complaint, the applicant was prepared to concede at this time that the Tribunal's jurisdiction in this particular proceeding is confined to what has been referred to as the 'lunch issue' and is set out more completely below.
The relevance of this concession is not only that the applicant had been including numerous other complaints about his conditions and treatment as part of this proceeding but the applicant has also made a number of other complaints to the Commissioner, two of which have been referred to the Tribunal under s 90 of the EO Act. These other complaints and the underlying issues have frequently intruded into the complaint being considered in this proceeding and convincing the applicant to confine his submissions to the 'lunch issue' was a significant step forward.
The applicant was again given time to file his statement of issues, facts and contentions. It was eventually filed on 21 March 2015. The respondent's responsive statement was filed in April 2015. The respondent also filed a supplementary bundle of documents and a recording of a telephone call made by the applicant.
On 29 April 2015, the matter came before me for a further directions hearing. The applicant sought, and was granted, an opportunity to file an amended statement of issues, facts and contentions.
It was at this stage put to the parties, and the parties agreed, that where possible the situation of prisoners and prison officers being called to the Tribunal to give evidence over a period of what might be several days, should be avoided. Accordingly, the Tribunal ordered that the matter should proceed on the basis that the applicant is taken to have proved the facts of his case, leaving the Tribunal to consider whether the facts as alleged amounted to unlawful discrimination under the EO Act.
If the Tribunal found that, on the facts most favourable to the applicant, there had been unlawful discrimination, then the matter could proceed to a hearing on the facts. If not, then the matter would be dismissed.
However, on 13 May 2015, the Tribunal received a telephone call from the applicant stating that he was still being denied access to his legal materials, that he was unwell but not receiving medical treatment, and that he believed this treatment was occurring deliberately to stop him pursuing his matter at the Tribunal. The applicant's daughter wrote to the Tribunal on 17 May 2015 supporting this position and stating that she was unable to file the amended statement of issues, facts and contentions on behalf of her father.
The applicant was granted a further extension of time until 17 August 2015. The applicant's amended statement of issues, facts and contentions was filed for him by his daughter on that day. A signed copy was filed in September 2015.
It became clear at this point that there was still some confusion between the parties as to the way in which the matter was to proceed. The respondent made a further application on 24 September 2015 to dismiss the proceedings. The applicant's daughter wrote to the Tribunal stating that the applicant 'does not consent' to the dismissal application.
On 21 October 2015 the matter proceeded to a further directions hearing. The parties were informed that the proceeding was to be conducted on the basis that I had originally outlined in April 2015.
The respondent continued to express concerns regarding the role of the applicant's daughter in this matter. The parties were given an opportunity to file their final submissions on the issue of the applicant's daughter's role in the proceedings. In October 2015 the applicant's daughter filed lengthy submissions on this point.
On 22 October 2015, the respondent filed its submissions in relation to the legal issues that impact on these proceedings and on 18 December 2015, the applicant's daughter filed legal submissions on behalf of the applicant which the applicant's daughter said were prepared by the applicant and signed by her pursuant to an 'Enduring Power of Attorney' document.
The matter proceeded to a directions hearing on 11 February 2016, in order to clarify the basis upon which the applicant's legal submissions were filed. At the directions hearing, the applicant's daughter stated that the document contained her father's submissions, which she had simply assisted him to prepare. She subsequently provided an earlier draft of that document which purported to have been signed by the applicant himself.
The applicant was then allowed to file a brief further submission, which was received on 17 February 2016, and the Tribunal decided that this matter is to be determined entirely on the documents.
The documents on which the Tribunal is relying
While I have reviewed and considered (to the extent possible in the case of the applicant's handwritten submissions) all documents filed in this proceeding, the documents to which I will principally refer for the purpose of these reasons are:
•the Commissioner's report to the Tribunal dated 8 November 2013;
•the applicant's amended statement of issues, facts and contentions dated 16 August 2015; (applicant's amended SIFC);
•the applicant's submission dated 18 December 2015;
•the applicant's further submissions dated 17 February 2016; and
•the respondent's submissions dated 22 October 2015.
In particular, I have taken the statement of issues, facts and contentions file on 16 August 2015 and the submissions filed on 18 December 2015 and 17 February 2016 to encompass and summarise the applicant's case.
The facts as alleged by the applicant
The relevant facts in respect of the 'lunch issue' as alleged by the applicant were set out in the applicant's amended SIFC and summarised in the respondent's submissions dated 22 October 2015. Those facts, as well as some additional relevant facts referred to in the Commissioner's report and the applicant's final submissions, are as follows.
The applicant has an 'impairment' as defined in s 4(1) of the EO Act, being Diabetes Mellitus Type II. He also suffers from various other medical complaints. With regard to his diabetes, the applicant must eat immediately after taking insulin or else he is at risk of having a hypoglycaemic attack.
At all material times, the applicant was in the custody of the respondent at Casuarina Prison. The respondent at the relevant time provided goods and services, or made facilities available, to the applicant in the form of meal facilities, accommodation and security.
From 14 February 2013 the applicant was placed in cell D03.
In the evening of 18 March 2013, the applicant was removed without notice to cell D10, in the same wing but a few further cells down and on the opposite side. The applicant was then given a key to cell B10 rather than to cell D10.
The applicant did not have any food in cell D10.
The following day, on 19 March 2013, the applicant attended the Health Centre at the prison for what he refers to as his 'lunchtime insulin' and the 'Insulin parade'. According to the respondent, the Health Centre at the prison is some distance from the applicant's cell and the applicant agrees, adding that a golf cart was used by nurses to travel from the Health Centre to the applicant's cell; applicant's legal submissions in support of his application dated 16 December 2015 at page 4, paragraph 9.3.
To put that into perspective, the applicant says that it can take 'up to 15 minutes, or even more' to walk from the Health Centre to the applicant's cell; applicant's 'Other Supplementary Facts' dated 26 August 2015.
The applicant was provided with his medication at the Health Centre at some time after 11 am. He says that he attended the Health Centre after visiting the library and he left the library at 11.07 am; applicant's amended SIFC at page 13, paragraph 39. It is evident that he did not arrive at the Health Centre until after 11.07 am. The applicant says that there was then a stop movement order made at the Health Centre which required the applicant to remain where he was until further notice. This occurred shortly after the applicant had taken his medication.
After returning to his wing and at some time shortly after 11.35 am, the applicant prepared himself lunch (three slices of toast with salmon) in the kitchenette of his unit's day room.
The applicant then returned to his cell, some 10 to 12 metres away, to collect a thermos flask, leaving his lunch in the kitchenette. As the applicant entered the unit's 'grilled' area a prison officer closed the grill.
A prison officer or officers refused to allow the applicant access to the lunch he had prepared and the applicant was then locked in cell D10.
The applicant fell into a hypoglycaemic coma after being locked in his cell.
The complaints
The applicant alleges the following contraventions of the EO Act:
a)Unlawful discrimination (direct discrimination) on the ground of impairment in the provision of goods, services or facilities by the respondent pursuant to s 66A(1) and s 66K(1) of the EO Act.
b)Unlawful discrimination (indirect discrimination) on the ground of impairment in the provision of goods, services or facilities by the respondent pursuant to s 66A(3) and s 66K(1) of the EO Act.
The applicant included in his submissions, allegations of other contraventions of the EO Act, namely:
a)Unlawful discrimination on the ground of age in the provision of goods, services or facilities by the respondent pursuant to s 66V(1) and 66ZF(1) of the EO Act.
b)Unlawful discrimination on the ground of age in the provision of goods, services or facilities by the respondent (pursuant to s 66V(3) and 66ZF(1) of the EO Act).
However, the complaint referred by the Commissioner to the Tribunal pursuant to s 90(2) of the EO Act is a complaint 'alleging unlawful discrimination on the ground of impairment in the area of services and facilities'. The jurisdiction of the Tribunal, which is created by s 107 of the EO Act, derives from referrals by the Commissioner or referrals by the relevant Minister. The Tribunal's jurisdiction is limited to the complaint referred to it by the Commissioner and does not extend to allegations that are not in the original complaint lodged with the Commissioner; Summerville and Department of Education & Ors [2006] WASAT 174 at [11] [12].
The applicant says that he relies on the same factual allegations raised in the original complaint to the Commissioner to establish age discrimination. The applicant says that previous Tribunal decisions in relation to the Tribunal's jurisdiction in equal opportunity matters are distinguishable from the circumstances of this matter.
However, I accept the respondent's submission that the Tribunal does not have the jurisdiction to inquire into the allegations of discrimination on the ground of age referred to above. The Commissioner did not refer a complaint of discrimination on the grounds of age to the Tribunal.
The legal issue I am confined to is therefore whether, on the facts set out above, the respondent's conduct constitutes unlawful discrimination on the ground of impairment in the area of goods, services and facilities.
Legislation
The EO Act relevantly provides as follows.
66A.Discrimination on ground of impairment
(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 impairment if, on the ground of
(a)the impairment of the aggrieved person; or
(b)a characteristic that appertains generally to persons having the same impairment as the aggrieved person; or
(c)a characteristic that is generally imputed to persons having the same impairment as the aggrieved person; or
(d)a requirement that the aggrieved person be accompanied by or in possession of any palliative device in respect of that person's impairment,
the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment.
…
(3)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 impairment if the discriminator requires the aggrieved person to comply with a requirement or condition
(a)with which a substantially higher proportion of persons who do not have the same impairment as 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.
66K.Goods, services and facilities
(1)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 person's impairment
(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 on the ground of impairment
In order to establish direct discrimination on the ground of impairment under s 66A(1) of the EO Act, the applicant must prove:
a)that he was treated less favourably by the respondent than in the same circumstances, or in circumstances that are not materially different, the respondent treated or would have treated a person (comparator) who does not have the same impairment; and
b)a reason or ground for the less favourable treatment was the applicant's impairment.
The applicant's case - direct discrimination
In relation to direct discrimination on the ground of an impairment, the applicant submits that the relevant comparator is a prisoner who does not have diabetes.
The applicant says that a prisoner who does not have diabetes:
i)would not have to go to the Health Centre at 11 am for an insulin injection and/or;
ii)if they had other reasons to go to the medication unit at 11 am, would not urgently require food shortly after their medication, with the consequences of such failure being potentially life threatening; and
iii)therefore, would not be required to attend the Health Centre at 11 am, obtain food, and return to be locked in his cell by 11.45 am in the context of other potential delays.
The applicant contends that he was treated less favourably than other prisoners without diabetes. He was required to attend the Health Centre by 11 am for his insulin, wait in line to receive his medication, face any vicissitudes that may result in a delay (including a stop movement order), and then return to his unit, prepare his lunch and return to his cell by 11.45 am, despite his impairment.
The applicant says that if the respondent's position is that he had food available to him in his cell, then the applicant's position is that:
i)the applicant was held in cell D10, having been moved there the night before, and all his food was held in cell D3; and
ii)it is discriminatory for the respondents to impose a condition that he have access to his own food inside his cell where officers believe that unit rules prohibit food in cells.
If it is a condition that diabetics ensure they have their own food in their cell, then the applicant says that the respondent has discriminated against the applicant by imposing that condition on the grounds that he has diabetes as it would require all prisoners with diabetes to be responsible for ensuring they have food in their cells, a condition that does not apply to non-diabetic prisoners.
Further, the applicant contends that the individual officers, in refusing to allow him access to his food, discriminated against him on the grounds of his diabetes and other impairments.
The Tribunal's findings- direct discrimination
In Laurent v Commissioner of Police [2009] WASAT 254 at [32] (Laurent), the Tribunal identified the following elements to establish direct discrimination on the grounds of impairment under the EO Act:
In order to make out a claim of discrimination under s 66A(1) of the EO Act, [the applicant] must show that:
a)he suffered from an impairment;
b)[the respondent] treated him less favourably than in the same circumstances or in circumstances that are not materially different, [the respondent] treats or would treat a person without such an impairment; and
c)he was treated less favourably on the basis of that impairment - that is, there is a causal connection between the ground of discrimination alleged and the decision or act complained about;
•it is not necessary for the impairment to be the sole or a dominant or substantial ground for the relevant conduct - it is enough if it is one of the grounds for the conduct;
•proof of a deliberate intention to harm or discriminate against a person is not necessary, but the act which constitutes discrimination must nevertheless be advertent and done with the knowledge of the impairment.
See Williams and Commissioner of Police [2005] WASAT 349 at [35] [38] and the cases cited therein, and see also s 5 of the EO Act.
On the basis of the facts alleged by the applicant, the first element is clearly established. There is no dispute that the applicant suffered from an impairment.
I turn then to the second element identified by Pritchard J. This element was summarised in Edoo v Minister for Health [2010] WASAT 74 (Edoo). The applicant has to:
… prove on the balance of probabilities that the respondent treated him 'less favourably' than the respondent would have treated another person without an impairment in the same or not materially different circumstances … The expression 'less favourably' [appearing in the EO Act] bears its ordinary meaning. It calls for the Tribunal to apply its judgment to the facts found to be proved in the particular case …
To determine whether a person has been treated 'less favourably' it is necessary to identify another person in 'circumstances' which are 'the same' or 'not materially different' from the aggrieved person (a comparator) and to determine whether the manner in which the aggrieved person was treated was less favourable than the manner in which the comparator was, or would be, treated …
It is not necessary to identify an actual person in comparison with whom a complainant is less favourably treated. ... Nevertheless, the factual foundation for conclusions about the way in which the comparator is, or would be, treated, must be established.
(Edoo at [160] [162], internal citations omitted)
In relation to the second element, the applicant says the relevant 'comparator', being a prisoner who does not have diabetes, would not attend the Health Centre at 11 am to receive medication, and therefore would not have to rush to prepare his lunch and return to his cell by 11.45 am.
I disagree with the applicant's characterisation of the appropriate comparator. As the Tribunal noted in Zangari v St John Ambulance Service [2010] WASAT 6 at [38]:
It is not necessary that the 'comparator' be in identical circumstances, but there must be a sufficient degree of similarity in the circumstances of the aggrieved person and the actual or hypothetical comparator to form the basis of an appropriate comparison.
The comparator must also include all attributes or consequences of the applicant's impairment; Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92.
The appropriate comparator in this case is therefore in my view a person:
•who is confined in an institution with strict rules or operational requirements and is assigned to a 'usual cell'
•who does not suffer from diabetes
•who returns to his or her assigned area of confinement considerably late (however caused) from an authorised activity such as a routine medical appointment
•who must by the uniform application of such rules or operational requirements be confined to a cell at a particular time
•who is temporarily confined to a cell which is not his 'usual cell'
•and who is not otherwise presenting with any life threatening circumstances or other reason of comparative substance which would necessitate an immediate return to his usual cell.
The question is whether the applicant was treated less favourably than such a prisoner in the same or not materially different circumstances.
Although difficult to ascertain from the applicant's submissions, the 'less favourable treatment' of which I understand him to be complaining is both that he was not allowed further time in the kitchenette, and that he was not allowed to return to the kitchenette to obtain food once locked in cell D10.
In fact, the applicant does not suggest that such a prisoner would have been allowed to leave his cell and enter the kitchen area to collect his lunch. The applicant is instead arguing that the expectations placed upon him in the circumstances are unreasonable and that he should be treated more favourably than the comparator on the ground of his impairment. Whether or not the applicant is correct in those views is irrelevant. It does not amount to direct discrimination on the ground of impairment.
The applicant also says that there is a condition imposed on diabetic prisoners that they have food in their cells. The applicant says that no such requirement is placed on prisoners who are not diabetic. However, I fail to see how this constitutes treating diabetic prisoners 'less favourably' than nondiabetic prisoners for the purposes of the EO Act. If such a requirement exists, it is a perfectly legitimate policy which addresses diabetic prisoner's specific needs.
For these reasons the applicant's claim of direct discrimination cannot be made out on the facts as alleged.
It is therefore unnecessary to consider the third element identified by Pritchard J in Laurent (the 'causal connection'). In any event, the applicant has not addressed whether the relevant conduct occurred 'on the ground of' his impairment and I would have no basis for finding that the alleged conduct of the prison officers was in any way motivated by the applicant's impairment.
Indirect discrimination on the grounds of impairment
Pursuant to s 66A(3) of the EO Act, in order to establish indirect discrimination, in my opinion the applicant must prove that:
a)the respondent required the applicant to comply with a requirement or condition;
b)a substantially higher proportion of persons who do not have Diabetes Mellitus Type II comply or are able to comply with the requirement or condition;
c)the requirement or condition is not reasonable having regard to the circumstances of the case; and
d)the applicant does not comply, or is not able to comply, with the requirement or condition.
The applicant's case indirect discrimination
In relation to indirect discrimination, the applicant says this.
The respondent ordered the applicant to comply with the following requirements and conditions:
Attend the Health Centre at 11am for medication, including his insulin injection; and return to his unit, prepare and consume his lunch meal prior to 11.45am lockdown.
The applicant says that prisoners who do not have diabetes are able to comply with those requirements and conditions as:
a)they either do not need to attend the Health Centre for medication; or
b)if they do attend the Health Centre, they are not required to consume food within a time frame after an insulin injection, with the consequences of failure to do so being potentially threatening (hypoglycaemia).
The applicant submits that the requirement that the applicant attend the Health Centre at 11 am and return to be locked in his cell by 11.45 am is unreasonable in light of the following circumstances:
a)He is required to prepare and consume his lunch within the 45 minute timeframe.
b)In cold weather he is required to fill his flask as he has arthritis. He requires hot water while locked in his cell as the cold weather inflames his arthritis and causes him pain. This causes a delay.
c)He has a number of other health issues including hearing and vision impairments, back and shoulder injuries and a heart condition.
d)There are a number of other potential vicissitudes that cause potential delay including stop movement orders, attendance at the library, returning to his cell to return his library books and collect his flask. Taking into consideration all or some of those vicissitudes it is impossible for the applicant to comply with the condition/requirement imposed by the respondent.
d)The applicant says he has no criminal history and no prior experience of the prison regime and was incarcerated for the first time after the age of 65, making it difficult and/or improbable that he is able to become familiar and comply with such a strictly regulated regime at his age and in his state of health.
The applicant says that meeting these requirements and conditions has been a regular problem for the applicant and that he does not comply with these requirements. The applicant is unable to comply with the requirements due to his age, state of health and impairments.
The applicant further says that if he was in the 'standard' community he would have been identified as an insulin dependent diabetic by a mediband ID, and would have undergone an Aged Care Assessment Test to determine his capacity to perform day-to-day tasks. The applicant says that as a prisoner, he was not identified as a diabetic within the prison community or as a person with additional care needs due to his impairment. He says that treating him in the same manner and imposing the same conditions on him as a healthy young prisoner amounts to a level of discrimination that is not accepted in the standard community.
The Tribunal's findings - indirect discrimination
The purpose of legislative provisions dealing with indirect discrimination was described (in the context of discrimination on the ground of race under the Racial Discrimination Act 1975 (Cth) (RD Act) by Sackville J in Australian Medical Council v Wilson, Hastings & Morgan (1996) 68 FCR 46 (Siddiqui's case) at 79 to 80 as follows:
[It] is to prevent individuals from the effect of apparently neutral conditions or requirements, which in fact operate in a manner that discriminates against particular groups the members of which has characteristics in common (such as race or national origin). A particular individual within a group subjected to discriminatory practices often will have some chance of complying with the offending condition or requirement. The chances of compliance may depend on how the condition is administered, or on whether the individual is able to overcome the practical obstacles placed in his or her path by the invidious condition or requirement.
With this background in mind, the first step in the process of establishing whether or not indirect discrimination has occurred is for the applicant to identify the requirement or condition with which he says the respondent requires him to comply.
The phrase 'requirement or condition' in equal opportunity legislation is to be given a broad rather than a technical meaning; New South Wales v Amery (2006) 230 CLR 174 at [63].
A person providing goods or services should be regarded, in the context of the equal opportunity legislation, as imposing a requirement or condition 'when that person intimates, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if those goods or services are to be acquired, used or enjoyed'; Waters v Public Transport Corporation (1991) 173 CLR 349 (Waters) at 407, considering Victorian legislation in similar terms to the EO Act.
While the term 'requirement or condition' is to be construed broadly, the actual requirement or condition should, in each instance, be formulated with some precision; Waters at 393.
The applicant has said that the particular requirement or condition which is imposed is that he attends the Health Centre at 11 am for medication, following which he must prepare and consume his lunch before '11.45 am lockdown'.
I disagree with this formulation. I think that it is more accurate to say that the relevant condition or requirement is that any prisoner who wishes or requires to attend the Health Centre must do so at 11 am and there is a further requirement that all prisoners must return to their respective cells by 11.45 am. I do not consider that the conditions or requirements include a stipulation that the applicant must prepare and consume his lunch before 11.45 am. On the applicant's own version of events, the respondent permits the applicant to have food in his cell, from which it is reasonable to infer that the respondent anticipates that in some circumstances the requirement or condition in question will not allow a prisoner sufficient time to prepare and consume food prior to 11.45 am.
I now turn to examine the relevant elements that the applicant must prove to establish indirect discrimination.
First, the applicant must prove that he is required to comply with the particular requirement imposed by the respondent.
This first element is not in dispute and is clearly satisfied. The applicant was required to attend the Health Centre at 11 am and return to his unit and be back in his cell by 11.45 am.
If I turn now to the fourth element required to establish indirect discrimination on the grounds of impairment, namely that the applicant did not or was not able to comply with the requirement or condition, it is clearly the case that the applicant did not comply with the relevant requirement.
While it might be said that the applicant did not comply with the requirement in part because of his own delay in arriving at the Health Centre, Sackville J in Siddiqui's case at 79, when considering the corresponding wording in the RD Act said this:
It was submitted that the phrase 'does not comply' refers to some immutable characteristic of the individual that prevents him or her ever complying with the relevant condition. I must confess that I find it difficult to see why the words in section 9(1A)(b) should be given a restrictive gloss. As a matter of ordinary English, the words 'cannot comply' … are apt to apply to a case of inherent inability to comply with a condition.
I must adopt the same reasoning and conclude that the words 'does not or is not able to comply' in s 66A(3)(c) of the EO Act should be construed in the same way. The applicant did not comply with the relevant requirement and the fourth element required to establish indirect discrimination on the grounds of impairment is therefore also satisfied. As I will discuss shortly, the applicant was able to comply with the condition as formulated, but did not.
I now turn to the second and third elements of indirect discrimination.
In order to prove the second element of indirect discrimination, the applicant must identify the 'pool' with which he seeks to compare himself. In Siddiqui's case at 63 to 64, Heerey J held:
… the comparison is not strictly speaking between two groups in the sense of separate independent entities but rather between a subgroup (the complainant's group) within a larger group (all who face the same term, condition or requirement).
… It is clear that the base group is a group which is affected by the term, condition or requirement in question; … the particular section of the public 'upon whose lives the impact of the relevant requirement or condition has to be measured'.
It is my conclusion that the appropriate 'base group' for this comparison is a group of all the prisoners who may or may not suffer from diabetes but who need or want, for whatever reason, to attend the Health Centre at 11 am and who must still be in their cells by 11.45 am. The 'complainant's group' is a subset of the base group, being the group of diabetic prisoners who face the same requirement.
The applicant must therefore show that a substantially higher proportion of the 'base group' than of the complainant's group are still able to be in their cells by lockdown at 11.45 am.
I do not believe that the applicant has satisfied the second element of indirect discrimination. Based on the applicant's own facts, he attended the Health Centre some seven minutes after 11 am, was subjected to a stop movement order and nonetheless was still back in the area of his cell by 11.37 am. The fact that the applicant was not back in sufficient time to prepare and consume his lunch is irrelevant on my finding about the requirement or condition that had to be met. The applicant could easily have been back in his cell by 11.45 am where, ordinarily, he would have food available.
It would be difficult to establish that a higher proportion of diabetic prisoners are unable to comply with the requirement or condition and the applicant has not asserted that a higher proportion of diabetic prisoners did not comply.
Accepting what the applicant says about the fact that there was no food available in cell D10, this is to say the least unfortunate and could have had dire consequences. Nonetheless, this does not amount to indirect discrimination. This was an operational error on the part of the respondent and not a condition imposed on the applicant.
For completeness, I will consider whether the third element can be established on the facts as alleged.
The applicant would need to establish that the imposition of the requirement for prisoners to attend the Health Centre at 11 am, and the requirement for all prisoners to be placed in lockdown at 11.45 am was unreasonable in the circumstances.
The onus of proving that a requirement or condition is not reasonable lies with the applicant; Waters at 411.
In Waters at 365 it was held that:
'[R]easonable' in that paragraph must mean reasonable in all the circumstances. If 'reasonable' is not limited by the concept of 'discrimination', there is nothing else in the Act to limit the considerations to be taken into account in reaching a decision on that issue.
In Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 Bowen CJ and Gummow J held:
[T]he test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience … The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All circumstances of the case must be taken into account.
Further, in the Commonwealth Bank of Australia v Human Rights & Equal Opportunity Commission (1997) 80 FCR 78, Sackville J stated:
Since the test is objective, the subjective preferences of the aggrieved persons cannot be determinative of the reasonableness of the impugned condition or requirement.
The respondent advances the reason for the requirement in its statement of issues, facts and contentions at paragraph 21 as follows:
The respondent says further that insulin injections to prisoners at Casuarina Prison are administered prior to lunch in order to allow prisoners sufficient time to return to their respective unit and consume lunch prior to the lunchtime lockdown.
It seems that the rationale for the requirement is to address the very problem about which the applicant is complaining.
Further, it is common ground between the parties and it is one of the applicant's stated facts that prisoners with diabetes are required to keep food in their cells. This requirement mitigates any potential detriment that diabetic prisoners may suffer by not returning to their unit in time for lunch before the 11.45 am lockdown.
The applicant alleges that on 19 March 2013, he was removed from his usual cell and placed in cell D10, where he says he could not access food. However, as I have already noted, the purpose of legislation prohibiting indirect discrimination is to prevent individuals from the effect of apparently neutral conditions or requirements, which in fact operate in a manner that discriminates against particular groups the members of which have characteristics in common. It seeks to eradicate requirements which generally discriminate against a group of people. The alleged incident on 19 March 2013 did not occur as a result of a requirement or condition, but rather was an extremely unfortunate anomaly and operational error on a particular day. It does not support a finding that the requirement or condition imposed by the respondent is generally unreasonable.
While I have not been addressed on the reasonableness or otherwise of the 11.45 am lockdown time, I have no basis for finding that this requirement or condition is unreasonable.
Conclusion
The applicant's complaint:
a)does not establish direct discrimination for the purposes of s 66A(1) of the EO Act and thus does not establish a breach of s 66K(1); and
b)does not establish indirect discrimination for the purposes of s 66A(3) of the EO Act and thus does not establish a breach of s 66K(1).
Orders
1.All interim applications made by the applicant in this proceeding are dismissed.
2.Proceeding EOA 51 of 2013 is dismissed.
I certify that this and the preceding [135] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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