DE ALWIS and COMMISSIONER FOR CORRECTIVE SERVICES - [2016] WASAT 52

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read DE ALWIS and COMMISSIONER FOR CORRECTIVE SERVICES and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] WASAT 52
Decision Date: 11 MAY 2016

CaseChat Overview and Summary

The case of DE ALWIS and Commissioner for Corrective Services involves the applicant, DE ALWIS, challenging a decision of the respondent that resulted in his placement in segregation. The applicant, who is a prisoner in the respondent's care, alleges that the conditions imposed by the respondent amount to indirect discrimination against him on the grounds of his impairment. The matter was heard in the Federal Circuit Court of Australia.

The central legal issue the court had to address was whether the conditions imposed by the respondent constituted indirect discrimination against the applicant based on his impairment. To determine this, the court had to ascertain whether the applicant was required to comply with a particular condition imposed by the respondent and whether he did not or was not able to comply with that condition due to his impairment. The court also needed to consider the broader implications of the term'requirement or condition' and its application in the context of the equal opportunity legislation.

In examining these issues, the court first clarified the nature of the requirement or condition imposed by the respondent. It was established that the requirement was that any prisoner wishing to attend the Health Centre must do so at 11 am and that all prisoners must return to their cells by 11.45 am. The court disagreed with the applicant's formulation that he must prepare and consume his lunch before the 11.45 am lockdown, noting that the respondent permits food in the cells, implying that the requirement does not mandate meal preparation and consumption before that time. The court then evaluated whether the applicant complied with this condition, finding that he did not, and considered the broader implications of 'cannot comply' in the context of the legislation.

Ultimately, the court concluded that the applicant did not or was not able to comply with the condition imposed by the respondent, fulfilling one of the necessary elements to establish indirect discrimination. However, the precise nature of the requirement or condition and its implications for the applicant's ability to comply were central to the court's reasoning.

The final orders of the court were not explicitly detailed in the text provided, but the decision centered on the interpretation and application of the equal opportunity legislation in the context of the conditions imposed on the applicant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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.