Gardener Roberts v The GEO Group Australia Pty Ltd
[2013] NSWADT 166
•26 July 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Gardener Roberts v The GEO Group Australia Pty Ltd [2013] NSWADT 166 Hearing dates: 4 June 2013 Decision date: 26 July 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave for the complaints to proceed is refused
Catchwords: ANTI-DISCRIMINATION - Application for declined complaint of race discrimination to proceed - whether fair and just for leave to be granted Legislation Cited: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977Cases Cited: IW v City of Perth (1997) 191 CLR 1
Jones and Anor v Ekermawi [2009] NSWCA 388Category: Interlocutory applications Parties: Guy Gardener Roberts (Applicant)
The GEO Group Australia Pty Ltd (Respondent)Representation: Counsel
R Perla (Respondent)
G Gardener Roberts (Applicant in person)
File Number(s): 131017
REASONS FOR DECISION
Introduction
Mr Gardener Roberts, an Aboriginal inmate at the Parklea Correctional Centre, complains of race discrimination against the operator of the Centre, The GEO Group Australia Pty Ltd (GEO). He complains about: the way in which his application to attend his father's funeral was dealt with; not receiving adequate psychological counselling following the death and having a visit from his mother terminated. He says each of those incidents was on the ground of his race. The President of the Anti-Discrimination Board declined these complaints as lacking in substance. When that happens, the Tribunal must give permission (or 'leave') before the complaint can go ahead. The test is whether it is fair and just to do so: Jones and Anor v Ekermawi [2009] NSWCA 388.
In this case it is not fair or just for the complaints to proceed because:
(1) GEO did not have all the information it needed to process Mr Gardener Roberts' application to attend the funeral and even if more assistance had been given to complete the paper work, his application would have been refused;
(2) Mr Gardener Roberts was not provided with counselling support following his father's death but there is no evidence that any failure was on the ground of race; and
(3) his mother's visit was terminated because of his own actions not because of his Aboriginality.
Mr Gardener Roberts has withdrawn a fourth complaint about phone access with his mother.
Refusal to attend father's funeral
What happened?
Mr Gardener Roberts said that the main thing he is complaining about is the failure to process his application to attend his father's funeral and not being told why he was not allowed to attend. He says that no-one made sure that the application had been received and was in order. Mr Gardener Roberts said that each officer "kept throwing it on to the next person."
This complaint is identical to a complaint Mr Gardener Roberts made to the NSW Ombudsman. In a letter that Mr Philip Mannion, the Operations Manager at Parklea Correctional Centre, originally wrote to the NSW Ombudsman, and which was copied to the President of the Anti-Discrimination Board, he gave the following account of Mr Gardener Roberts' application to attend the funeral:
Mr Gardener completed an inmate request form on 24 June 2011 following the death. This request was registered by staff and forwarded to his area manager, Mr Barry Tanzer. Arrangements were made by the Area Manager for inmate Gardener to contact his Mother Joy Roberts. His phone call took place in the presence of Area Manager Barry Tanzer and the Area Supervisor Sarah Gillespie. Ms Roberts was spoken to by correctional staff and informed that she was to forward funeral documentation to the Operations Manager. She was provided with the names and facsimile numbers of the General Manager and Operations Manager however no documentation was ever received from a funeral home regarding funeral arrangements.
On 27 June 2011 a case note created by Mr/Ms Manweller states that:
Had a chat with Guy to assess how his weekend went. There were nil incidents and he talked about how his charge was heard and he seemed happy with the outcome. He talked about how the body of his father hasn't yet been released, but would appreciate attending to say his goodbyes.
A case note Mr/Ms Fuaivaa from 29 June 2011 states that:
Inmate Gardener was seen by the RAPO (Vivian Scott) on 28 June 2011 in regards to his foster father passing away. From discussions and interview with RAPO inmate seems to be demanding and with the record that he has from previous case notes on internal charges he has been made aware that his request to attend the funeral may not be granted. RAPO will converse and discuss further action with General Manager at PKA CC. (Words in brackets added.)
Mr Gardener Roberts says the RAPO came "but didn't do anything."
A further case note dated 30 June 2011 from Simone James records that:
The author spoke with inmate Gardener at the inmate's request. Gardener expressed his frustration with the outcome of his visit with RAPO Vivian Scott on 29 June 2011. Inmate Gardener stated that he felt the information he supplied to the RAPO regarding the death of his father and his relationship with him was misinterpreted. Gardener stated that he was very disappointed that he may not receive approval to attend his father's funeral.
Mr Gardener Roberts says his mother provided a copy of his father's death certificate and did "everything else she was asked to do."
Ms Simone James helped Mr Gardener Roberts complete an inmate request form. Mr Gardener Roberts says Ms James gave the form to the desk clerk but then brought it back saying it should have been put through the right channels. Mr Gardener Roberts says that Ms James told him that she had taken it to another office. According to Mr Gardener Roberts the application form "went missing". Ms James gave him a photocopy of the application but that document was not in evidence.
A document headed "Inmate Request Register" records that on 24 June 2011 Mr Gardener Roberts lodged a request to go to his father's funeral. That document records that the request was referred to the Area 2 Manager. The document itself was not in evidence. That tends to support Mr Gardener Roberts' assertion that it "went missing".
According to the Operations Manager, Mr Mannion, an Inmate Request form was not sufficient. An Application for Local Leave Permit (Funerals or other events of family or cultural significance) needed to be completed. It was not completed because no details about the funeral were provided by Mr Gardener Roberts' mother about the funeral arrangements. Mr Mannion adds that even if that form had been completed he would not have supported the application because of Mr Gardener Roberts' poor behaviour and the risk associated with conducting such an escort.
Legal principles
It is unlawful to discriminate against a person on the ground of race by refusing to provide that person with a "service" or in the terms on which the service is provided. Section 19 of the Anti-Discrimination Act 1977 (AD Act) states that:
It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:
(a) by refusing to provide the person with those goods or services, or
(b) in the terms on which the other person is provided with those goods or services.
I understand Mr Gardener Roberts' complaint to be one of direct discrimination as defined in s 7(1)(a):
(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if the perpetrator:
(a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or ...
In order to substantiate a complaint of direct race discrimination, Mr Gardener Roberts would have to prove that:
(1) he is of a member of a race as defined in the AD Act;
(2) he was refused a service or provided with a service on unfavourable terms; AD Act, s 19
(3) in refusing that service or providing it on unfavourable terms, the respondent treated him less favourably than it treated or would have treated a person who was of a different race in the same or similar circumstances; (differential treatment) and
(4) at least one of the reasons for that treatment was Mr Gardener Roberts' race: (causation) AD Act, s 7 and s 4A.
Consideration
"Race" is defined in the AD Act to include "colour, nationality, descent and ethnic, ethno-religious or national origin." I accept that Mr Gardener Roberts is Aboriginal.
The service that the respondent is providing must be identified with precision: IW v City of Perth (1997) 191 CLR 1 per Brennan CJ and McHugh J. GEO did not dispute that the processing of an application to attend a funeral is a "service". I accept that proposition. I understand Mr Gardener Roberts' submission to be that GEO should have assisted him to provide the necessary paper work and ensured that his application was in order. Those actions relate to the terms on which the service of "processing an application" is provided.
While there is limited evidence on this point, it appears that Mr Gardener Roberts did not know that he needed to complete an Application for Local Leave Permit. Instead he says that he completed an Inmate Request Form. Neither Mr Gardener Roberts nor GEO has provided a copy of that form. But that is not the document that Mr Gardener Roberts needed to complete. It does not appear that he was ever provided with a blank copy of the correct form and asked to complete it. GEO employees spoke to Mr Gardener Roberts' mother and asked her to provide information from the funeral home that would allow the Application for Local Leave Permit to be completed. There is no evidence that anything else was done to ensure that the correct application was completed and submitted.
Even if GEO has refused to provide Mr Gardener Roberts with a service, or provided that service on unfavourable terms, Mr Gardener Roberts would still have to prove that one reason for that conduct was because he is Aboriginal. There is no direct evidence to support that assertion. Mr Gardener Roberts infers that he was not assisted to complete the relevant paper work because 13 years ago Ralph Quinlan, an Aboriginal inmate, escaped from custody when attending a funeral.
Mr Gardener Roberts' case is weak. A Tribunal hearing this case on the existing evidence would be likely to find that Mr Gardener Roberts' mother was asked to provide, but did not provide, the information from the funeral home that was necessary for the Application for Local Leave Permit to be completed. Other than an incident 13 years ago involving an Aboriginal inmate, Mr Gardener Roberts has not pointed to any basis for suspecting that his Aboriginality was a reason that GEO did not do more to ensure that the correct application was provided and completed.
In any case, even if that documentation had been completed, the Operations Manager of the Centre expressed the view that approval would not have been given because of Mr Gardener Roberts' poor behaviour and the risk associated with conducting an escort.
In all the circumstances it is not fair or just for this complaint to proceed.
Inadequate counselling
What happened?
Mr Gardener Roberts complains about the lack of adequate counselling support following his father's death.
This complaint is identical with another complaint made by Mr Gardener Roberts to the NSW Ombudsman. In responding to the President of the Anti-Discrimination Board, the legal manager for The GEO Group Australia Pty Ltd provided the same materials that were provided to the NSW Ombudsman.
Mr Philip Mannion, the Operations Manager at Parklea Correctional Centre, expressed the opinion that adequate support had been provided to Mr Gardener Roberts following the hospitalisation and subsequent death of his father. On 23 June 2011, he was permitted to telephone his mother Joy Roberts, and speak to her for approximately 25 minutes. Contact was also made on 24 June 2011 by the Acting Operations Manager, a senior psychologist and a counsellor. Mr Gardener Roberts was also spoken to by another officer on 28 June 2011.
Several case notes record conversations and interviews that Mr Gardener Roberts had with various people about this time. These are contemporaneous notes and provide reliable evidence of what took place.
On 24 June 2011 Mr Gardener Roberts was interviewed. The case note, written by Mr/Ms Lutchman and labelled "psychology" states that:
Reasons for interview. Psychology was notified of the loss of inmate Gardener's uncle. Interview was set to assess his mental and emotional state. Interview was held in the presence of two officers from segregation, acting operational manager, counsellor and senior psychologist. Inmate Gardener presented stable and settled in mental state. Nil emotion was displayed and nil signs of grief noted. He was coherent and organised in his thought patterns. He stated that his uncle aged 52 was the father figure for him who had visited him once while he was incarcerated. Inmate Gardener displayed nil depressive symptomatology and nil thoughts of self harm or suicide. He was able to make random jokes and laugh throughout the interview. He was able to guarantee his safety. He has had contact with his mother. Inmate Gardener tended to have a number of complaints and arguments as things were not going the way he wanted it (for example time at visits etc). He clearly stated that he would treat others the way they treat him. This dysfunctional thought was restructured for him during this interview.
The purpose of this visit was to assess Mr Gardener Roberts' mental and emotional state. The conclusion following that assessment was that he appeared to be stable and settled and did not display any symptoms of grief, disorganised thought, depression or self harm. There is no decision recorded as to whether Mr Gardener Roberts did or did not require counselling sessions but it appears from the following case notes that no such sessions were provided.
A case note dated 1 July 2011 from Mr Edsall, behaviour management specialist, states as follows:
Spoke with Gardener with PBDU SAS Finbar Kearney and Area Manager Barry Tamzin for about 45 minutes. Discussed his progress since discharge from PBDU (Personality Behaviour Disorder Unit) involvement. He requested information regarding our discharge and previous contact details for external psychologist who he was arranged to see on release. Discussed his upcoming court appearance for bail application, his recent death of his "Uncle/Father" who he had previously disclosed to author he had extensive contact with through his childhood and adolescence. Also discussed his outstanding charges in terms of what he would hope to see if he receives a custodial sentence and how he wants to "do his time." (Words in brackets added.)
According to Mr Gardener Roberts this was not a counselling visit in relation to the death of his father. I accept that that was not the purpose of this particular visit.
On 5 July 2011 a case note from Simone James states that:
The author spoke with inmate Gardener today accompanied by Mr Peter Townsend - Deputy Manager Inmate Classification and Placement. Gardener spoke of his 'father' whose funeral was conducted today. The inmate became visibly upset, however stated that he was coping. Gardener read aloud from notes he had written which referred to memories he had of his father. Gardener stated he was disappointed that he was not being given approval to attend the aforementioned funeral.
There was no evidence that Ms James or Mr Townsend are psychologists or counsellors. While Mr Gardener Roberts spoke about his father's death, this was not a counselling session.
The final relevant case note labelled "Chaplaincy" written by Paul Orury was also made on 5 July 2011, the date of the funeral. It stated that:
I was called to see Guy in Segro as today was his father's funeral. He still held some frustration and anger that communication was lacking. He wanted Bro Bernard to know the funeral was today as he said he would go for him. On speaking to Bro Bernard later, he had not been told when the funeral was on and had decided to stay home today as he was sick. Had a time of reflection with Guy and played Gurrumul's song "Bapa". Guy has borrowed this chapel CD for the rest of the day with the officer's permission.
This was apparently a visit from a chaplain, not a counsellor.
Based on the existing evidence, a Tribunal hearing this case would be likely to find that GEO did not provide Mr Gardener Roberts with any counselling sessions following the death of this father. There may be a dispute as to whether such sessions were needed and what the normal practice is in relation to the provision of counselling.
Legal principles
The legal principles in relation to this complaint are essentially the same as for the previous complaint.
In order to substantiate a complaint of direct race discrimination, Mr Gardener Roberts would have to prove that:
(1) he is of a member of a race as defined in the AD Act;
(2) he was refused a service or provided with a service on unfavourable terms; AD Act, s 19;
(3) in refusing that service or providing it on unfavourable terms, the respondent treated him less favourably than it treated or would have treated a person who was of a different race in the same or similar circumstances; (differential treatment) and
(4) at least one of the reasons for that treatment was Mr Roberts' race: (causation) AD Act, s 7 and s 4A.
Consideration
The service in this case is the provision of counselling when required. Whether that is a service that GEO provides was not a matter on which evidence was given or submissions made. For the purpose of these proceedings I accept that GEO provides such a service to inmates.
Even if GEO has refused to provide Mr Gardener Roberts with a service, or provided that service on unfavourable terms, Mr Gardener Roberts would still have to prove that at least one reason for that conduct is that he is Aboriginal. There is no direct evidence to support that assertion, nor is there any basis for drawing that inference. A more plausible explanation is that Mr Gardener Roberts was assessed on 24 June 2011 and a decision made then that no formal counselling was required. In all the circumstances it is not fair or just for this complaint to proceed.
Termination of mother's visit
On 23 June 2011 Mr Gardener Roberts says employees of GEO terminated a visit with his mother inappropriately immediately after he had been told that his father had died. Mr Gardener Roberts says that during the visit an officer snatched a letter he had on the table. He said he caught her reading it and got up and walked over to ask her why she was reading the paper. He admits that he swore at her.
There is a report from Mr/Ms Pallas on the file in relation to this incident dated 24 June 2011:
Whilst performing my duties as a Visits officer on 24 June 2011 at about 9:20am the following happened.
We received an inmate now known to me as Gardener from Segregation. Gardener was seated at table 7 with his visitor. As he sat at the table I noticed an envelope on the table. I approached the table with inmate Gardener and stated that the letter has to be left at the front desk as there was no request form for it to come to visits. At this stage Gardener started to get abusive towards myself saying "my mum has to read it". I replied "your mum can read it when the visit is over". At this stage I took the letter to the front desk. Officer Coker then checked the content of the envelope and at this stage inmate Gardener started to abuse Officer Coker with words to the effect "you are not allowed to read my letter as it was legal mail".
Inmate Gardener was told by Officer Coker that "I am only checking the content of the letter not reading it." Gardener started abusing Officer Coker, saying "you fucking bitch you are not allowed to read it so fucking put it down, fucking bitch I am going to kill you, you are fucking dead". At this stage Shift Manager Mr P McDermott was contacted to attend visits. When Mr McDermott arrived he was informed of what happened and at this stage inmate Gardener's visit was terminated and returned to segregation.
An Officer Report Form from another officer, Siaa Faleilua, supports this version of events. On the same day Mr Gardener Roberts was charged for abusing staff. GEO policy states that inmates and visitors are only allowed to take legal documents into the visiting area with prior approval.
The contemporaneous notes do not support Mr Gardener Roberts' allegation that his visit was terminated on the ground of his Aboriginality. There is no evidence from which such an inference can be drawn. Indeed there is an alternative explanation that is more plausible. That is, that Mr Gardener Roberts abused an employee when she removed a document from the table. In all the circumstances it is not fair or just for this complaint to proceed.
Order
Leave for the complaints to proceed is refused.
Decision last updated: 26 July 2013
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