Gibbs v Wanganeen
[2001] FMCA 14
•6 March 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
Mark Gibbs v Ian R Wanganeen [2001] FMCA 14
HUMAN RIGHTS – offensive behaviour by a prisoner within a prison because of the race of a prison officer – whether act done otherwise than in private
COSTS – whether costs should be awarded at an interlocutory stage of human rights proceedings
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Racial Discrimination Act 1975 (Cth), s.18C
Summary Offences Act 1966 (Victoria)
CASE FOLLOWED
Low v Commonweatlh [2000] FMC 6
CASES CITED
Hall v Sheiban (1988) 85 ALR 503
Project Blue Sky v ABA (1998) 194 CLR 355
CASES CONSIDERED
McMahon v Bowman [2000] FMC 3
CASES REFERRED TO
Korszac v Commonwealth of Australia (2000) EOC ¶93-056
McIvor v Garlick [1972] VR 129
ApplicantMark Gibbs
Respondent: Ian R Wanganeen
File No:AZ73 of 2000
Delivered on: 6 March 2001
Delivered at: Adelaide
Hearing Date: 5 and 6 March 2001
Judgment of: Driver FM
REPRESENTATION:
Counsel for the Applicant: Mr T L Stanley
Solicitors for the Applicant: Tindall Gask Bentley
Counsel for the Respondent: Mr G A Britton
Solicitors for the Respondent: Aboriginal Legal Rights Movement Inc
ORDERS:
The application is dismissed.
IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
ADELAIDE REGISTRY
No AZ73 of 2000
Mark Gibbs
Applicant
And
Ian R Wanganeen
Respondent
REASONS FOR DECISION
This is an application by Mr Mark Gibbs pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act), claiming that he was the victim of offensive behaviour contrary to s.18C of the Racial Discrimination Act 1975 (the RDA).
The applicant is a correctional services officer in the Yatala Labour Prison, and the respondent at the relevant time was a prisoner housed in “F” division of that prison. The applicant alleges that at approximately 5.47pm on 3 June 1999 the respondent had a conversation with him in which he became abusive and referred to the applicant as a “fucking white cunt”, “a fucking dog” and “white trash". This conversation allegedly took place in the accommodation office located within “F” division.
The respondent and the applicant have agreed on the following statement of facts:
(a)The applicant, Mark Gibbs, was at all relevant times employed by the Department of Correctional Services, South Australia as a correctional services officer at Yatala Labour Prison.
(b) The respondent, Ian Wanganeen, was at all relevant times a sentenced prisoner held in custody in “F” division in Yatala Labour Prison.
(c) “F” division is one of four custodial divisions established by the Department of Correctional Services within the confines of the Yatala Labour Prison for the purpose of holding prisoners in custody.
(d)“F” division houses prisoners who are undertaking work duties and consequently have greater privileges than some of the other prisoners, including a later lock‑up time and greater access to telephone calls.
(e)On 3 June 1999 the applicant was undertaking work duties in “F” division.
(f) On that day the respondent had been required by correctional services officers to undergo a urine test as he had been suspected of taking a prohibited substance.
(g) In addition to the urine test the respondent was also subjected to a standard strip search.
(h) The respondent took the urine test and was searched, and the results of both were that he was “clean”.
(i) Subsequent to returning from those tests the respondent had a discussion with the applicant in the accommodation office located in “F” division.
The respondent denies using the precise words alleged and further denies that he acted unlawfully pursuant to s.18C of the RDA. In particular, the respondent says that the conversation took place in private and that it did not take place in the hearing of others. The Human Rights and Equal Opportunity Commission terminated the complaint on the basis that Mr Wanganeen had not breached s.18C of the RDA because the respondent's act was not done otherwise than in private. The case proceeded before me on this preliminary point as an interlocutory hearing.
Subsection 18C(1) of the RDA provides that:
It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or some or all of the people in the group.
Subsections 18C(2) and (3) provide as follows:
(2) For the purposes of subsection (1) an act is taken not to be done in private if it:
(a)causes words, sounds, images or writing to be communicated to the public; or
(b)is done in a public place; or
(c)is done in the sight or hearing of people who are in a public place.
(3) In this section: “public place” includes any place to which the public have access as of right or by invitation, whether express or implied, and whether or not a charge is made for admission to the place.
The applicant bears the onus of establishing that the relevant act was done otherwise than in private. It follows that if the relevant act was not done otherwise than in private the application must fail.
As I have noted, the Court heard this issue as a preliminary issue. In addition, I indicated to the parties at the commencement of the hearing that I wished to consider whether, even if the applicant could establish a breach of s.18C of the RDA, this would be an appropriate case to grant relief pursuant to section 46PO(4) of the HREOC Act, given that the provision of relief for unlawful discrimination pursuant to that section is discretionary.
The only evidence put before the Court was the affidavit of Mark Gibbs made on 26 July 2000, the affidavit of Bahal Gill made on 31 July 2000, and oral evidence provided by Mr Gibbs on 5 March 2001. Mr Gibbs was cross‑examined on his oral evidence as well as on his affidavit. The following material facts emerged from Mr Gibbs' evidence:
(a) Yatala Prison is an extensive prison complex of which “F” division is one part. (The applicant tendered a map of the prison complex which Mr Gibbs referred to in giving his evidence.)
(b) A visitor to the prison is first directed to a gatehouse opposite a car park and upon being given appropriate security clearance is directed by a physical line marking through a gate to a visits centre some 30 metres from “F” division.
(c) “F” division is a residential complex to which certain classes of persons, other than prisoners and correctional staff, may be admitted under escort. The class of persons includes lawyers representing a prisoner but does not include family members.
(d) “F” division is located approximately 100 metres from the outer perimeter of the prison complex.
(e) The conversation alleged took place within the accommodation office in “F” division which is a fully enclosed room with walls consisting partly of perspex so that persons outside can see into the room. Visitors to “F” division are escorted to the accommodation office and prisoners also have access to it. The ordinary hours during which a visitor may be admitted are between 9.00am and 4.30pm on weekdays.
(f) At the time of the alleged conversation there were no visitors in or about the accommodation office but the conversation was overheard by Mr Gill who is another correctional officer. Mr Gill was in or about the accommodation office at the relevant time.
(g) The conduct of prisoners within the prison is regulated by rules. It is a breach of these rules for a prisoner to orally abuse a correctional services officer. An officer is required to report an incident which involves a breach of the rules. Mr Gibbs considered that Mr Wanganeen had breached the rule against abuse as a result of the incident and filed a report. Subsequently, Mr Wanganeen was removed from “F” division to “B” division of the prison with a consequent loss of privileges. Mr Gibbs is not aware of any of reason for this move other than his report.
10. I accept the applicant's contention that the issue before the Court is one of statutory construction. The meaning of the phrase "otherwise than in private" is to be derived from its statutory context: Project Blue Sky v ABA (1998) 194 CLR 355 at 368 and 381. The phrase was considered by this Court in McMahon v Bowman [2000] FMC 3. In that case Federal Magistrate Raphael referred with approval to the decision of HREOC in Korszac v Commonwealth of Australia (2000) EOC ¶93-056.
11. In Korszac it was held that s.18 of the RDA is intended to apply to the workplace. I assume that the same view would be taken of s.18C. Also, it was held that the applicant does not have to establish that the relevant act occurred in public or in a public place. What is required is that the relevant act occurred otherwise than in private. Section 18C(2) of the RDA is inclusive but not exhaustive of the circumstances in which an act is to be taken as not being done in private. I accept that conclusion.
12. The legislation is remedial and its operation should not be unduly confined. It was not possible for Parliament to stipulate all circumstances where a relevant act is to be taken as not being done in private. On the other hand it is clear from the section and its context that an act done in private is not to be taken as a breach of s.18C. Clearly, Parliament wished to protect private conversations from the reach of the legislation. Commonly, a person's home is a place where a person engages in private conversations. An exception is where a conversation in a home can be heard in a public place. That was the circumstance considered by Mr Raphael in McMahon v Bowman.
13. I was referred by Mr Stanley to the decision of the Supreme Court of Victoria in McIvor v Garlick [1972] VR 129. In that case the Court considered whether the foyer of a hospital is a public place pursuant to the Victorian Summary Offences Act 1966. The Court provided some useful guidance as to the meaning of the expression "public place" within the context of that legislation. However, care needs to be taken in applying what a court says about the meaning of an expression in a particular Act to the same expression used in a different Act. As the applicant has submitted, words have to be interpreted in the context of the particular legislation in question. But this case is a material guide to the common law meaning of the words "public place" and has relevant application to the interpretation of s.18C(3) which, as Mr Stanley has submitted, is an inclusive and not an exhaustive definition. The question then is whether a prison or this prison is a public place, either at common law or under subsection (3) of s.18C.
14. A prison is a home of sorts in that it is a place where prisoners live for the duration of their confinement. It is a closed community to which access and egress are strictly regulated. A prison is not in general a public place, but some parts within a prison may be a public place depending upon the circumstances. Also, it is possible that an act done within a prison may be done otherwise than in private, depending upon the circumstances, even if done in a place that is not a public place.
15. Yatala Prison was the applicant's workplace but that does not of itself render the alleged act done in the workplace an act done otherwise than in private. A workplace may be a private home, for example where a carer is providing services to a disabled person in his or her home. Although a prison is a workplace, it is also a place where prisoners live, and accordingly it has some of the attributes of a private home. I accept that a workplace may be a place in which persons reside and still be a place in which conversations can occur otherwise than in private but I do not accept that a prison is necessarily a place which is a public place simply because it is a workplace.
16. I find that the gatehouse at the entrance to Yatala Prison is a public place and that the visits centre within the prison is also a public place. That is so because in the first place the public has a direct right of access to the gatehouse, and the public is invited, having satisfied security requirements, to proceed to the visits centre within the prison. However, “F” division is not a public place because there is no express or implied invitation for the public to enter it unescorted.
It would still be possible for an act to take place within “F” division otherwise than in private if members of the public, by which I mean persons other than prisoners or correctional services staff, were actually present within “F” division at the place where the act occurred, when it occurred, or at least within earshot. However, that was not so in this case. In addition, the act took place at a time after any visitors to “F” division might reasonably have been expected to have left.
18. There is also the issue of the quality of the conversation itself. It is possible that in a prison a prisoner may have a conversation with a prison officer that was not intended to be a private conversation. Given the peculiar characteristics of a prison, I find that exchanges between prisoners and their guards will frequently be private conversations but they may not be. In the present case I find that the exchange was intended by the respondent to be a private one. He clearly wanted to confront the applicant over the issue of immediate concern to him. He appears to have expressed himself off the cuff, and he appears not to have been intending by those statements to make a public complaint. I conclude, therefore, that the act complained of in this case was not done otherwise than in private and that accordingly the application must fail.
19. As I noted, I did invite submissions on the second issue of whether, even if s.18C had been breached this would be an appropriate case for relief, and I do note for the record that even if I were wrong in the view that the act which occurred did not occur otherwise than in private, I would have some difficulty in considering this case to be an appropriate one for the provision of relief under s.46PO(4) of the HREOC Act. As I have already noted, the provision of relief under that section is discretionary, even where an act of discrimination has been established.
20. The case involves an alleged act of discrimination by a prisoner serving a term of imprisonment against a prison officer. The prison officer had control over the prisoner. There was a procedure within the prison for dealing with racial abuse, or any other abuse, of a prison officer by a prisoner. That procedure was followed and I find that Mr Wanganeen was subjected to a penalty in consequence. It would be neither necessary nor desirable that this Court impose an additional penalty on the respondent.
21. However, Mr Stanley has rightly pointed out that the legislation is not punitive, it is compensatory and there is the possibility that a prison officer, or even this prison officer, may sustain injury, whether to his feelings or otherwise, necessitating some form of compensation. This Court cannot arbitrarily refuse to provide relief where relief is called for: Hall v Sheiban (1988) 85 ALR 503. As a general principle, however, my view is that matters such as the present can and should be adequately dealt with in accordance with the rules regulating conditions within the prison.
22. As to costs, although Mr Britton sought an order for costs and Mr Stanley indicated that he would not oppose an order, I do not consider that any order for costs should be made. As I noted in the matter of Low v Commonwealth [2000] FMC 6, applicants under this legislation should be given a reasonable opportunity at a preliminary stage in proceedings to determine whether they have a valid claim for relief. In my view it would be contrary to the objects of the legislation if cost awards were commonly made at an early stage in proceedings before an applicant had had that opportunity. Therefore, the only order I make is that the application is dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the Reasons for Judgment of Driver FM.
Associate:
Dated 14 March 2001
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