Gibbs v Wanganeen - [2001] FMCA 14

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…

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.

Continue reading Gibbs v Wanganeen

Details

AGLC: Gibbs v Wanganeen [2001] FMCA 14
Case: [2001] FMCA 14
Decision Date: 6 March 2001

CaseChat Overview and Summary

Mark Gibbs, a correctional services officer at Yatala Labour Prison, filed an application against Ian Wanganeen, a prisoner at the same facility, under section 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Gibbs claimed that Wanganeen subjected him to offensive behaviour due to his race, in violation of section 18C of the Racial Discrimination Act 1975 (Cth). Gibbs alleged that Wanganeen verbally abused him using derogatory terms in the accommodation office of "F" division within the prison on 3 June 1999. Wanganeen denied using the specific words and argued that the conversation was private. The Human Rights and Equal Opportunity Commission dismissed the complaint, and Gibbs sought relief in the Federal Magistrates Court.

The primary legal issue was whether the alleged offensive act by Wanganeen was done "otherwise than in private" as required by section 18C(1) of the Racial Discrimination Act. If the act was done in private, it would not constitute an unlawful act under the Act. The court also considered whether, even if the act was unlawful, this was an appropriate case for relief under section 46PO(4) of the HREOC Act.

The court held that the conversation between Wanganeen and Gibbs was intended to be a private one, despite occurring in the accommodation office within "F" division. The office, while not a completely private space, was not a public place accessible to the general public. Given the nature of the prison environment and the absence of any members of the public, the court concluded that the conversation was indeed private. Consequently, the application failed as the alleged act was not done otherwise than in private. Even if it had been, the court found that the case did not warrant relief under the HREOC Act, as internal prison procedures adequately addressed the issue.

The court dismissed Gibbs' application and did not award costs, considering that applicants should be given an opportunity to determine the validity of their claims at an early stage in proceedings without the burden of costs.

Orders