Hudson v The Australian Capital Territory (Discrimination)
[2021] ACAT 19
•16 March 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
HUDSON v THE AUSTRALIAN CAPITAL TERRITORY (Discrimination) [2021] ACAT 19
DT 4/2020
Catchwords: DISCRIMINATION – strike-out application – whether alleged discrimination occurred in one of the areas of public life – goods, services and facilities identified as area of public life – whether decisions about a detainee’s classification, non-association, transportation and discipline in a prison are ‘services’ under the Discrimination Act – complaints under these categories struck out – decisions about health access, visitor arrangements, special diets, loss of property and complaint handling may be capable of being characterised as services – these complaints not struck out
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 32, 56, 74
Anti-Discrimination Act 1977 (NSW) s 19
Corrections Management Act 2007
Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32
Disability Discrimination Act 1992 (Cth) s 24
Discrimination Act 1991 ss 2, 4AA, 7, 8, 20, Dictionary
Equal Opportunity Act 1984 (WA)
Human Rights Act 2004 ss 8, 30
Human Rights Commission Act2005 ss 53A
Cases cited:Alipek v GSL Custodial Services Pty Ltd [2008] VCAT 845
Charles v State of Victoria [2015] VCAT 375
Cheluvappa v University of Canberra [2018] ACAT 108
Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308
Egan v State of Victoria [2011] VCAT 1364
James Rainsford v State of Victoria & Anor [2005] FCAFC 163
IW v City of Perth (1997) 191 CLR 1
Mahommed v State of Queensland [2006] QADT 21
Rainsford v State of Victoria & Anor (No.2) [2004] FMCA 707
Rainsford v State of Victoria [2008] FCAFC 31
Rainsford v Victoria [2007] FCA 1059
State Electricity Commission of Victoria v Andrew Rabel and the President & Members of the Equal Opportunity Board [1998] 2 VR 102
State of New South Wales v Whiteoak [2014] NSWCATAP 99
Waters v Public Transport Corporation [1991] HCA 49
Whiteoak v State of New South Wales [2014] NSWCATAD 45
Tribunal:Presidential Member H Robinson
Date of Orders: 16 March 2021
Date of Reasons for Decision: 16 March 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 4/2020
BETWEEN:
AARON HUDSON
Applicant
AND:
THE AUSTRALIAN CAPITAL TERRITORY
Respondent
TRIBUNAL:Presidential Member H Robinson
DATE:16 March 2021
ORDER
The Tribunal orders that:
1.Complaints relating to the following matters are struck out as being outside the scope of the Discrimination Act:
(a) The classification decisions.
(b) The non-association decisions.
(c) The disciplinary decisions.
2.The applicant is, by 13 April 2021, to file a document that identifies:
(a) each act, matter or circumstance (complaint) he wishes to rely upon; and
(b) in relation to each complaint:
(i)the unfavourable treatment that resulted and/or the condition or requirement that the applicant says amounts to discrimination; and
(ii)the protected attribute that was the basis for the discrimination in relation to each incident.
The Tribunal notes: The applicant may find it useful to do this using the amended chronology filed by the respondent and identified as R1 in these proceedings.
3.If the applicant does not comply with this direction, the Tribunal may dismiss the matter in chambers pursuant to section 74 of the ACT Civil and Administrative Tribunal Act 2008.
4.The matter will then be listed for a further directions hearing.
………………………………..
Presidential Member H Robinson
REASONS FOR DECISION
1.The applicant is a detainee at the Alexander Maconochie Centre (AMC). He has made a complaint of unlawful discrimination under the Discrimination Act 1991 (Discrimination Act) in relation to sixty-four decisions and actions taken by the respondent in relation to that detainment.
2.By way of an interim application dated 4 September 2020, the respondent has sought to dismiss (‘strike out’) the claim in whole or in part, pursuant to section 32 or section 56(d) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), on the basis that it is either without substance or frivolous and vexatious. The main issue in the context of the strike-out is whether the complaints, as made by the applicant, fall into “areas of public life” to which the Discrimination Act applies.
The law
3.The Discrimination Act does not prohibit all acts of unfavourable or discriminatory treatment. Rather, it makes unlawful certain acts that occur in areas of public life prescribed in Part 3 of the Discrimination Act because a person has a protected attribute as defined in section 7 of the Discrimination Act.
4.Section 8 of the Discrimination Act establishes two forms of discriminatory conduct:
(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
(3) For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.
The applicant has not clearly identified whether the incidents set out in the chronology are alleged to be direct or indirect discrimination, but the general tenor of the complaints is that they are ‘unfavourable treatment’ as per the definition of direct discrimination. The applicant has not identified a condition or requirement imposed by the AMC that he says has the effect of disadvantaging him because of his political or religious views. If the matter is to progress, the applicant will be required to provide further particulars, and I will make an orders to that effect.
5.Regardless of whether the alleged discrimination is direct or indirect, it will only be unlawful if it occurs in one of the “areas of public life” set out in Part 3 (Unlawful discrimination) of the Discrimination Act. That is, the actions must occur in the context of:
(a)work and employment;
(b)education;
(c)access to premises;
(d)goods, services and facilities;
(e)accommodation; or
(f)clubs.
6.Only the “goods, services and facilities” ground has been identified as potentially relevant in this case.
7.Under section 20 of the Discrimination Act, a person discriminates against another in the provision of goods, services or facilities if:
Goods, services and facilities
It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person—
(a) by refusing to provide those goods or services or make those facilities available to the other person; or
(b) in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or
(c) in the way in which the provider provides those goods or services or makes those facilities available to the other person.
8.‘Services’ is defined to include:
services provided by a government, government authority, local government body or corporation in which a government has a controlling interest…[1]
[1] Discrimination Act 1991 Dictionary ‘(definition of ‘services’)
9.Not everything done or provided by a government body will be a ‘service’ within the meaning of this definition, and what falls within the scope of the definition can be a difficult question.
10.The Tribunal only has jurisdiction to determine a claim for unlawful discrimination where the subject of the claim has been referred to the Tribunal from the Human Rights Commission under section 53A of the Human Rights Commission Act2005 (HRC Act).
Procedural background
11.This matter was referred to the Tribunal pursuant to section 53A of the HRC Act on 24 January 2020.
12.At a directions hearing on 13 March 2020, the applicant was ordered to file a providing further details about his claim by 2 April 2020. That date was later extended to 3 April 2020 and then to 8 May 2020. On 19 June 2020 the applicant was ordered to provide particulars of the complaint by 8 July 2020.
13.The applicant eventually filed a chronology of complaints on 7 July 2020 (the chronology). The chronology identifies sixty-three incidents or circumstances (complaints), but not how the applicant says those complaints fall within the scope of the Discrimination Act.
The strike-out application
14.The key question for the strike-out is whether some or all of the actions of the respondent, complained about by the applicant, are capable of being characterised as a provision of ‘services’ within the meaning of Part 3 of the Discrimination Act. If they are not, then the application, as currently set out, cannot succeed.
15.The relevant test for striking out an application lodged under the HRC Act was set out by Presidential Member Symons in Cheluvappa v University of Canberra[2] (Cheluvappa). In that case, the Tribunal referred to a decision of the Victorian Court of Appeal in State Electricity Commission of Victoria v Andrew Rabel and the President & Members of the Equal Opportunity Board[3] (Rabel), where that Court considered the approach to be taken in applications for summary dismissal in a discrimination matter. The Tribunal stated at [39]:
[2] [2018] ACAT 108
[3] [1998] 2 VR 102
In Rabel, the Court of Appeal set out the principles for considering an application to strike out or dismiss a complaint at a preliminary stage of the proceedings in the context of a discrimination matter. The principles were summarised by the Victorian Civil and Administrative Tribunal (VCAT) in Jamieson Mary v The Australian Worker’s Union & Anor (Jamieson) as follows:
(1) Section 109 [of the Equal Opportunity Act 1995] permits an application to be made by the respondent at a preliminary stage; s75 [of the Victorian Civil and Administrative Tribunal Act 1998] permits an order to be made at any time including on the Tribunal's own initiative. The procedure to be adopted is in the Tribunal's discretion. The proceeding may be determined on the pleadings and submissions alone, or by allowing the parties to put forward further material, including affidavits and oral evidence.
(2) If in a proceeding a complainant indicates to the Tribunal that the whole of their case is contained in the material put before the Tribunal, the Tribunal is entitled to determine the matter by asking whether, on all the material before it, there is a question of real substance to go to a full hearing.
(3) However, if a complainant indicates that there is other evidence they can call to support their claim and the Tribunal does not permit that evidence to be called, the Tribunal cannot determine the matter on the basis that the complainant's material contains the whole of their case.
(4) A proceeding to dismiss or strike out a complaint is similar to an application to the Supreme Court in civil proceedings for summary dismissal. Both are designed to prevent abuses of process. However, it is a serious matter for the Tribunal, in an interlocutory proceeding which will generally not involve the hearing of oral evidence, to deprive a litigant of the chance to have their complaint heard in the ordinary course.
(5) In an application, the respondent bears the onus of showing that the complainant's case ought not be allowed to proceed. In a s75 hearing where the Tribunal proceeds on its own initiative the Tribunal must be satisfied on all the material before it that the complaint should not be allowed to proceed.
(6) For a dismissal or strike out to succeed, a respondent must show, or the Tribunal when proceeding on its own initiative must be satisfied, that the complainant's case is obviously hopeless and untenable or that it could on no reasonable view justify relief. The Tribunal's power to dismiss or strike out a complaint should however be exercised with caution and consistently with the objectives of the Act.
(7) In dealing with a dismissal or strike out matter a clear distinction must be drawn between the complaint or claim itself and the evidence which is to be given in support of it. A complaint cannot be dismissed or struck out as lacking in substance merely because it does not in itself contain the evidence supporting the claims.
(8) A complaint can be dismissed or struck out if it is obviously unsustainable in law or in fact. This will include, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action, or where the respondent can show a defence sufficient to warrant the summary termination of the complaint.
(9) The Tribunal should not apply technical, artificial or mechanical rules in coming to a view about the case that a complainant wishes to advance.
Two additional comments should be made. First, if the material before the Tribunal shows that there is a dispute between the parties as to a fact in issue and the material does not assist the Tribunal to resolve the dispute, then it would be difficult for the Tribunal to be satisfied that the complaint is so lacking in substance that it should be dismissed or struck out.
Second, if the respondents have satisfied the Tribunal that the complaint or any part of it is frivolous, vexatious, misconceived or lacking in substance in respect of any element essential for the complainant to prove in order to substantiate the complaint at a full hearing, then the complaint or the relevant part of the complaint should be dismissed or struck out.
16.Several points may be made based on this.
17.First, in considering whether to strike out the present application, the Tribunal must bear in mind that only minimal evidence has been filed. If the strike-out is successful, the applicant will be denied the opportunity to prove his allegations. The Tribunal may consider the strength of the applicant’s factual case, but the primary basis for this strike-out application is that the claim cannot succeed at law. Accordingly, for the purposes of the strike out, I have assumed that the applicant is capable of establishing the facts asserted in his documents.
18.Second, I have had had regard to the applicant’s limited resources and capacity to gain legal advice or do research while in detention. The applicant is not legally trained, and while he has set out the factual allegations, his legal arguments are those of a layperson wading through a complicated area of law. I have read his documents with a view to the substance of the allegations, rather than whether they meet legal forms.
19.Finally, I have not considered whether the applicant has a relevant protected attribute. The applicant appears to contend either that there is some correlation between his political views and his membership of an Outlaw Motorcycle Gang (OMCG), or that membership of an OMCG is itself an expression of political views. There is little evidence to support this contention before the Tribunal at present. The applicant also claims that he holds the protected attribute of ‘religion’, but it is not set out in the documents which religion, or how this relates to his claim, as this is not particularised at all. Ultimately, whether the applicant possesses a protected attribute, and whether there are any casual links between those attributes and the complaints, will be a matter for evidence, nearly none of which has been filed to date.
The applicant’s facts
20.The following is a summary of the applicant’s version of events. I have attempted to identify what kind of ‘services’ (or perhaps ‘facilities’) the applicant is basing his claim on. The summary is broad in nature, having regard to the possible sensitivity of the subject matter.
21.The applicant is a member of an OMCG. He holds political views that he describes as “national socialism.”
22.In October 2019 the applicant came to the AMC on remand and was housed in a Sentenced Unit (SU).
23.In late November 2018 the applicant was told by an officer that he would be moved to a remand area that was protection area of the gaol (classification decision 1).
24.The applicant was involved in an altercation during his removal from the SU. He was then placed in a management unit. He alleges that “6 to 8 others” were in the same or similar situations but were not subject to the same disciplinary action (disciplinary decision 1).
25.In December 2018 the applicant was returned to the SU. On 22 December 2018 he was assessed and determined to be a mainstream prisoner (classification decision 2).
26.On 17 February 2019 the applicant was involved in an altercation with two other detainees, including a member of a rival OMCG. He was hospitalised as a result. The applicant says that officers knew of the non-association between these individuals and himself but failed to ensure they did not come into contact (non-association complaint 1).
27.Because of the February altercation, the applicant was disciplined with 7 days’ loss of privileges, limited phone calls and contact visits, and no access to the multi-purpose building (disciplinary decision 2). He says that others involved in the altercation were not disciplined and that the decision to discipline him was based on his political opinions.
28.In April 2019 there was another altercation at the AMC allegedly involving the applicant. He was relocated to the Management Unit while the matter was investigated (classification decision 3). Three days later further disciplinary action was taken against him (disciplinary action 3). The applicant appealed this disciplinary action and sometime over the next few days the penalty was reduced.
29.On 20 April 2019, the applicant, along with two other detainees, were charged with assault. The applicant and the other detainee were returned to the SU for a further seven days segregation (disciplinary action 4).
30.The applicant alleges that when he asked why this happened, he was advised that the “GM does not want Nazis in her jail and has the right to extend segregation orders for the security and safety of the centre.” The applicant then had a mental health crisis and was transferred to another facility for the night.
31.On 27 April 2019, the applicant’s period of segregation was extended over the weekend (disciplinary action 5).
32.On 29 April 2019 the applicant was advised that he would be moved and housed in the segregation unit for the foreseeable future (classification decision 4). He says that when he asked why, he was advised that “…if we want to act like Nazis we will be treated like Nazis.”
33.On 7 May 2019 the applicant was advised of ongoing segregation (classification decision 5).
34.During the move, some of the applicant’s property was misplaced (the loss of property allegation). It is unclear whether the applicant believes that this was deliberate or negligent, but in either case the consequence was loss of his property.
35.On 13 May 2019 the applicant complained about lack of access to education and programs. He was advised he could access them individually, but communal access would only be allowed when his behaviour improved (the education access issue).
36.On 23 May 2019 he complained about his vegetarian meals being mixed up (the meal issue).
37.On 27 May 2019 the applicant was allowed out of his cell to receive medication. However, he encountered another detainee with whom he should have had no association (non-association complaint 2). He considers this to have been either deliberate or a consequence of the AMC not taking his concerns about the risk occasioned by such interaction seriously.
38.The applicant subsequently requested that visits be scheduled at alternative times to avoid confrontations, but this was denied (visitor arrangements request). On 30 May 2019, a potential visitor cancelled the visit rather than risk a confrontation with the visitor of another detainee because the visits scheduled at the same time.
39.In his chronology, the applicant explained that:
I feel the jail is provoking already a tense situation, I have explained that my visitors will behave but will defend themselves if required. In the last 12 months there has been at least 3 all in brawls involving bikies in act I do not want to see someone hurt or killed because ACT Corrective Services want to have a laugh.[4]
[4] Applicant’s chronology of complaints 7 July 2020 page 7
40.On 31 May 2019 the applicant did not receive a vegetarian meal for the 4th week in a row. Further meal issues happened on other occasions.
41.On 2 June 2019 there was an encounter between the complainant and rival OMCG members in the visiting area, which the applicant considered a foreseeable result of the denial of the visitor arrangements request.
42.On 4 June 2019 the applicant asked to see a mental health worker but this was not arranged (health access issue 1).
43.On 5 June 2019 the applicant was advised that his “buy up” form was not received by the relevant authorities and therefore he was not able to supplement his diet (buy-up issues). He says his form was given to the officer at the same time as his cellmate’s but was not actioned.
44.On 7 June 2019, again on 8 June 2019, and possibly on other occasions, the applicant was denied the opportunity to visit a nurse, despite reporting severe shoulder pain. When transported to hospital, it was in what he considered to be an unroadworthy vehicle. He was again unable to receive medical attention on 24 June 2019 (health access issue 2).
45.On 10 June 2019 the applicant submitted a formal complaint in relation to the vehicle that transported him to hospital. The vehicle had a crack in the front window and the applicant had concerns about its roadworthiness but did not object as he needed to get to hospital (transportation issue).
46.At 7:30 in the morning on 22 June 2019 the applicant suffered a shoulder injury while dressing. He was unable to see a doctor on that day. At 8:30pm that night a nurse gave him oral pain medication. He was unable to see a doctor until 11am on 24 June 2019. (health access issue 3). He was then referred to a physiotherapist.
47.On 27 June 2019 the applicant was advised that due to good behaviour he would be moved back to the SU. He declined to be moved because of the risk he saw being created by the absence of non-association arrangements between himself and other inmates (non-association complaint 3).
48.Also on 27 June 2019 the applicant was advised that complaints he had made about his property, and the time and date of visits had been referred to a senior officer but that no information could be provided to him about the progress of the complaint (complaint handling issue).
49.On 28 June 2019 the applicant asked another officer about the progress of his complaint regarding visitor times. He was told that this was a matter for the general manager, but that she was away. The applicant asked to speak to the deputy general manager but was unable to do that either. When he expressed his concerns about having rival OMCG members attending at the same time, he was told, “Oh well if something happens we will deal with it then and I guess you will then have some friends in here.” (visitor arrangements issue)
50.Sometime in mid-2019, possibly on 7 June 2019, the applicant was advised that the AMC would not acknowledge the applicant’s request for arrangements to be made so he did not have to deal with members of rival OMCGs and that he should “deal with the situation” (non-association complaint 4). A few days later he was advised that the non-association arrangements in place would need to be removed if he wanted to participate in education programs. A member of staff reconfirmed that he would need to sort out arrangements with other gang members, but said that “if he had his way he would have them all live with each other and deal with it themselves”, which the applicant took to mean that he would have them all assault each other.
51.On 8 July 2019 the applicant’s buy up was not delivered again.
52.On 10 July 2019 the applicant was again unable to see a mental health professional (medical access issue). Later, his shoulder dislocated, and the only medical treatment was a nurse who gave him ‘meds’. He was offered an opportunity to go to the crisis support unit but was concerned there would be no medical treatment. The applicant formed the view that he was being denied medical treatment as a punishment.
53.On 16 July 2019 the applicant was transported to hospital for a conduction study in what he considered a ‘defective’ vehicle (transportation issue). He put in a complaint but was later advised the vehicle is no longer in the AMC’s possession.
54.On 21 July 2019 the applicant looked at the visits list and noticed there were four OMCG gang members booked for the same visit time. The applicant was advised he would be put on ‘box visits’ and his visitors would leave early or he would be moved to the SU. Following incidents, which he considered foreseeable, his visiting arrangements were limited or amended. The applicant contends he was being ‘bullied’ into moving into the SU (visitor arrangement issue).
55.On 2 August 2019 the applicant attempted to fill in a ‘change of religion’ form but was advised by AMC staff that the form had to be filled in by 10am. The applicant’s regime meant that he could not do this. Staff refused to assist him (change in religion issue).
56.On 22 July 2019 the applicant was told he would need to move to one of two areas, both with a rival members of an OMCG. He suffered a mental health incident, was subjected to a use of force, strip searched, removed to the management unit and his shoulder dislocated (discipline complaint 5).
57.On 29 July 2019 he was moved to the SU and found his property missing again. He was advised there would be consequences if he made further complaints.
‘Services’ under Part 3 of the Discrimination Act
58.The issue before the Tribunal is whether any of the above incidents may properly be considered the provision of ‘services’ within the meaning of that term in section 2 of the Discrimination Act.
59.The respondent submits that, as a matter of law, a ‘good or service’ for the purposes of Part 3 of the Discrimination Act is something that confers a “benefit, advantage or assistance” to the applicant. Decisions about detainee’s accommodation and discipline do not meet this description and are therefore not ‘services’ to which the Discrimination Act applies.
60.In particular, the respondent denies that the following are ‘services’:
(a)The associations and placements of detainees.
(b)The discipline of detainees.
(c)The allocation of visitor times.
61.The respondent’s argument in relation to these functions may be summarised as follows: these are functions exercised by staff members in accordance with the Corrections Management Act 2007 (CM Act) and they are imposed on the applicant under that Act as a necessary incident of detainment. The applicant has no control over the functions being exercised and no ability to decide whether to accept the decisions being made, and therefore they are not ‘services’ for the purposes of the Discrimination Act.
62.The respondent relied on several decisions from other jurisdictions (authorities) considered below, in support of this position. These authorities are from other jurisdictions, so they are not binding, but several are highly persuasive.
63.Before considering the authorities, I note that the effect of the respondent’s argument would be that incarcerated individuals, who are obviously in highly vulnerable positions, are deprived of some legal protections provided to other citizens. The respondent effectively submits that, this is an inevitable consequence of incarceration, which equates which a necessarily high degree of control by the Territory over the detainee.
64.The potential removal of legal protections evokes section 8 of the Human Rights Act 2004 (HR Act), which provides:
Recognition and equality before the law
(1) Everyone has the right to recognition as a person before the law.
(2) Everyone has the right to enjoy his or her human rights without distinction or discrimination of any kind.
(3) Everyone is equal before the law and is entitled to the equal protection of the law without discrimination. In particular, everyone has the right to equal and effective protection against discrimination on any ground.
Examples of discrimination
Discrimination because of race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth, disability or other status.
65.Section 30 of the HR Act requires that, so far as it is possible to do so consistently with its purpose, legislation is to be interpreted in a way that is consistent with human rights. Additionally, section of 4AA of the Discrimination Act specifically requires that the Act be interpreted in a manner beneficial to the applicant and in a manner consistent with human rights:
4AA Interpretation beneficial to people with protected attributes
This Act must be interpreted in a way that is beneficial to a person who has a protected attribute, to the extent it is possible to do so consistently with—
(a)the objects of this Act; and
(b)human rights under the Human Rights Act 2004.
Note: The Legislation Act, s 139 (1) (which is about interpreting legislation to be consistent with its purpose) and the Human Rights Act 2004, s 30 (which is about interpreting legislation to be consistent with human rights) are also relevant to interpreting territory laws.
66.I will come back to these in due course, but these provisions require that an expansive and beneficial interpretation be given to the meaning of the word ‘services’ where it is reasonable and consistent with the legislative framework to do so. I will now turn to the authorities.
67.More generally, the starting point in any consideration of the meaning of ‘services’ are the decisions of the High Court in Waters v Public Transport Corporation[5] and IW v City of Perth[6] (IW).
[5] [1991] HCA 49
[6] (1997) 191 CLR 1
68.In both cases, the High Court identified the need to interpret the term ‘services’ liberally, but to identify the ‘services’ in question with reasonable precision. The way the applicant has presented his case means the latter requirement is not satisfied, but that is something that can be remedied through further details. The more significant question is whether, in operating a prison, and dealing with the applicant as a detainee, the respondent is providing the applicant with ‘services’ within the meaning of that term in the Discrimination Act.
69.In IW the High Court considered the meaning of the term ‘service’ in the context of Perth City Council’s decision to reject an application for town planning approval for a centre for people with HIV. The High Court ultimately decided that the Equal Opportunity Act 1984 (WA), as the legislation then was, did not apply to the Council in its refusal to exercise a statutory discretion. Different approaches were taken, but the broad principles that can be drawn from the decision are that:
(a)the Equal Opportunity Act 1984 (WA) should be given a “fair, large and liberal” interpretation;[7]
(b)a narrow construction of the word ‘service’ would frustrate the intended operation of the Act, which is not penal but educative, compensatory and ameliorative in character;[8]
(c)a service could include any helpful or beneficial activity, including the performance of a statutory duty; and
(d)a statutory duty may meet obligations owed to the public and simultaneously provide a service to a particular individual.[9]
[7] IW v City of Perth (1997) 191 CLR 1, 12 (Brennan CJ and McHugh J); 39 (Gummow J)
[8] IW v City of Perth (1997) 191 CLR 1, 72-3 (Kirby J); 23 (Dawson and Gaudron JJ)
[9] IW v City of Perth (1997) 191 CLR 1, 13 (Brennan CJ and McHugh J); 43-4 (Gummow J)
70.IW suggests that it is at least possible that activities undertaken under the CM Act may also be services, at least where they are helpful or beneficial to the detainee. However, while acknowledging that decision, the respondent’s submissions urge caution:
At its most expansive, [services] has been treated covering any helpful or beneficial activity. But a “service” does not result from the exercise of every power or performance of every function by government, even if it may be helpful or beneficial to a complainant. Some powers and functions will have no parallel with the goods, services and facilities provided by the private sector and will fall outside any statutory definition.
It is also important that a complainant have some agency in access to the good or service. It is artificial to identify as a service for the purpose of anti-discrimination law a single or discrete aspect of a helpful or beneficial activities which a complainant has no control.
71.The respondent then referred to the case of State of New South Wales v Whiteoak[10] as authority for a more restrictive approach.
[10] [2014] NSWCATAP 99
72.The applicant in Whiteoak alleged that NSW Corrections had discriminated against him in breach of section 19 of the Anti-Discrimination Act 1977 (NSW) on the ground of race in making several decisions relating to his classification and access to development programs.
73.At first instance, the NSW Civil and Administrative Tribunal (NCAT) found that, in classifying a prisoner, corrective services were providing a ‘service’. The State of New South Wales appealed that decision.[11]
[11] Whiteoak v State of New South Wales [2014] NSWCATAD 45
74.The Appeal Panel of the NSW Civil and Administrative Tribunal considered the ‘ordinary meaning’ of the word ‘services’ and concluded, in part, that:
“services” in s 19 only occurs as something that is or could be provided. The word “provide” is defined in the Macquarie Dictionary as:
1. to furnish or supply. 2. to afford or yield...
…these meanings convey the essential notion of making something available. They do not suggest in any way that “provide” includes imposing something on a person. Thus, if a governmental function or statutory duty is being performed and the persons affected have no ability to decide whether to accept or reject what is done or the outcome, it is unlikely that services are being provided in those circumstances.[12]
[12] State of New South Wales v Whiteoak [2014] NSWCATAP 99 at [157]-[158]
75.In other words, the key consideration for the NCAT Appeal Panel was the optional nature of a service, and the right of the recipient of it to accept or decline it.
76.Whiteoak is authority for the respondent’s submission, outlined above, that the provision of things over which an inmate has no control is not the provision of a service. If this Tribunal were to apply the Whiteoak approach, it would mean that the applicant’s complaints in relation to the classification decisions and disciplinary decisions, at least, could not be complaints about services that can be considered by this Tribunal under the Discrimination Act, as they are not matters over which the applicant has any say. They are incidents of the coercive power of the state in relation to the custody and control of detainees, imposed pursuant to the CM Act.
77.A similar decision to that of Whiteoak was the decision of the Federal Court in the earlier case of Rainsford v Victoria[13] (Rainsford FC). The facts of the series of Rainsford cases bear some similarity to the present matter.
[13] [2007] FCA 1059
78.Mr Rainsford was a detainee in the Victorian prison system. He had a back injury. He alleged that the State of Victoria indirectly discriminated against him on the basis of his disability while he was prison by requiring him to travel in prison transportation vans for up to two hours without the opportunity the stretch and exercise his back, and by placing him in a separation cell for nine days in conditions which aggravated his back injury. He relied upon section 24(1)(c) of the Disability Discrimination Act 1992 (Cth) (DDA), which prohibits discrimination on the ground of disability “in the manner in which the goods and services are provided or facilities made available to the person”.
79.At first instance,[14] Federal Magistrate Raphael dismissed the application. His Honour noted that services provided to prisoners’ families had been found to be ‘services’ under the DDA on previous occasions, but these matters were clearly within the rehabilitative or welfare responsibilities of the Department of Corrections. By contrast, decisions about the management of the prison were an exercise of the coercive power of the state:
There is a clear distinction between a government authority, acting under the authority of statute, deciding whether or not to extend or apply a service to a particular individual and the situation in the instant case, where no discretionary element exists. Whilst undoubtedly there are various aspects of prison life over which a prisoner retains a degree of control e.g. participation in training programs or counselling sessions, his actual incarceration is not one of them. Rather it is the result of the coercive power of the State following judicial determination, and is a decision imposed on both the prisoner and the provider of correctional services.[15]
[14] Rainsford v State of Victoria & Anor (No.2) [2004] FMCA 707
[15] Rainsford v State of Victoria & Anor (No.2) [2004] FMCA 707 at [24]
80.On appeal, Kenny J (with whom Hill and Finn JJ agreed) applied the reasoning of the High Court in IW and found that Federal Magistrate Raphael “erroneously relied on a distinction that he drew between the provision of services pursuant to a statutory discretion and the situation …where no discretionary element exists”.[16] They remitted the matter to Sundberg J.
[16] James Rainsford v State of Victoria & Anor [2005] FCAFC 163 at [54]
81.In Rainsford FC Sundberg J held that to establish that an act constitutes a service, it is necessary to show that the act in question is helpful or beneficial to the class of persons to which the person alleging the discrimination belongs, which in Rainsford’s case (as in the present matter before the Tribunal), was prisoners. Having regard to the evidence before him, His Honour held that the transportation and accommodation of prisoners were inherent parts of incarceration and were not helpful or beneficial to the prisoners concerned:
...transport is an inherent part of incarceration. Prisoners on remand must attend court for their hearings. Prisoners in low-security prisons who are re-classified must be moved to higher-security prisons. The prison system simply could not function without prison transport. It is an artificial use of the word service to apply it to a fundamental integer of a system over which those affected have no or almost no control.
The accommodation of prisoners in cells within the prison system is similarly an inherent part of incarceration. Prisoners must be housed somewhere within the prison system and that this is so demonstrates that for a prisoner to have a cell is not a helpful or beneficial activity so far as the prisoner is concerned. In so far as there is choice in the allocation of prison cells, it is a purely administrative and prison management matter. It does not, of itself, provide prisoners with a benefit. Rather, it is better described as being “part and parcel of the exercise of a statutory duty and cannot be described as the provision of a service or services.[17]
[17] Rainsford v Victoria [2007] FCA 1059, at [77]-[78]
82.However, while his Honour accepted that transport and accommodation were not services provided to prisoners, he accepted that certain other facilities provided to prisoners may constitute services for the purposes of the DDA:
Attending to the welfare of prisoners is an important legal obligation placed on both respondents. This is all the more so given the vulnerabilities of prisoners who are unable to do much to control their circumstances within prisons. It is for this reason that I accept that certain facilities provided by the respondents to prisoners may constitute services for the purposes of the DDA.[18]
[18] Rainsford v Victoria [2007] FCA 1059 at [79]
83.In deciding the matter, Sundberg J opined that whether a particular act constitutes a service will be a question of fact in each case. This requires identification of:
(a)the matter said to constitute a service; and
(b)demonstration that the action provides a benefit to the applicant.
84.On appeal again, in Rainsford v State of Victoria[19] (Rainsford FCFC) the Full Court of the Federal Court only briefly addressed the ‘services’ argument. Their Honours observed:
In this case it is not necessary to consider whether his Honour erred in his interpretation of the expressions “service” or “facility”. This is because, if, as we think, his Honour’s conclusions on the other aspects of the claim are correct, this question does not arise. We observe that, although the meaning of “service” is not simple to resolve, and the matter was not argued in depth, we see some strength in the view that the provision of transport and accommodation, even in a prison, may amount to a service or facility.[20]
[19] [2008] FCAFC 31
[20] Rainsford v State of Victoria [2008] FCAFC 31 at [9]
85.While the Full Court of the Federal Court did not expressly endorse Justice Sundberg’s approach to the definition of a service, their Honours did not overturn it. To the extent that the respective legislative frameworks are similar, the reasoning of the Full Court of the Federal Court is highly persuasive.
86.Shortly after Rainsford FCFC was decided, NCAT again turned its mind to a similar matter in Contreras-Ortiz v Commissioner, Department of Corrective Services[21] (Contreras-Ortiz) In that case NCAT reviewed the authorities relating to the dual characterisation of conduct as statutory function and service, and concluded:
…amongst the ordinary meanings of the term “service” are the action of serving, helping or benefiting; conduct tending to the welfare or advantage of another.
the touchstone for a service is whether is whether the act is helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs.[22]
[21] [2008] NSWADT 308
[22] Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308 at [115]
87.In Contreras-Ortiz the NCAT found that a classification decision could be a service because it could be characterised as helpful and beneficial to a prisoner. This appears to be the only case where this approach was taken, however, and most other authorities have reached a different conclusion in relation to classification.
88.For example, in Charles v State of Victoria[23] (Charles v Victoria) the Victorian Civil and Administrative Tribunal (VCAT) found that decisions about discipline and security, drug testing, classification and standard food were not services, because they did not provide a benefit, but were an inherent part of incarceration. In Egan v State of Victoria,[24] VCAT found Corrections Victoria did not provide a service in classifying a prisoner, and in separating him from other prisoners. These were the functions of providing security, management and good order to the prison. Nonetheless, in Charles v Victoria, VCAT did accept that employment opportunities, medical treatment, access to a telephone and lost property may be services. The member specifically considered section 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) which requires, so far as it is possible to do so consistently with their purpose, that all Victorian statutory provisions be interpreted in a way that is compatible with human rights.
[23] [2015] VCAT 375
[24] [2011] VCAT 1364
89.In Alipek v GSL Custodial Services Pty Ltd,[25] Deputy President McKenzie, while not expressing a concluded view, opined that it was arguable that the provision of prison industry work for prisoners to perform is a service. The Deputy President regarded it as beneficial in providing prisoners training, and not an inherent part of incarceration, given the Secretary of the Department of Justice had discretion to decide whether to direct a prisoner to do such work.
[25] [2008] VCAT 845
90.In Mahommed v State of Queensland[26] the Queensland Civil and Administrative Tribunal appears to have assumed, without detailed consideration, that the provision of special meals to meet religious requirements was a service.
[26] [2006] QADT 21
91.On balance, the authorities suggest that a distinction may be drawn between the mere performance of a statutory function, and the performance of a statutory function which is at the same time something that is helpful or beneficial to the person receiving it. The latter may be a service under the Discrimination Act, the former generally will not be, particularly when done in the context of a coercive legislative scheme, such as that established by the CM Act. The Victorian authorities suggest that reasonable limitations on detainees’ rights, where necessary for the security and management of the prison, are consistent with an interpretation that on the Corrections Act that pays appropriate regard to section 44A the HR Act.
92.What this means for present purposes is that the onus is on the respondent, in seeking to strike-out this matter, to establish that the activities which are the subject of the complaints are done under statutory authority, and constitute an inherent part of the day to day management of a prison, and are not for the benefit of the applicant.
Conclusion
93.Having regard to the weight of authority, I am satisfied that the ordinary meaning of the word ‘services’ does not extend to activities that provide for the order, management and security of the prison, the safe custody of prisoners, or for the provision of such activities as are inherent to the act of incarceration, including transportation, where the detainee has not choice in relation to their provision. However, activities that are helpful, beneficial, aimed at the welfare of the prisoners, and are not an inherent part of incarceration, may very well constitute ‘services’, particularly where the prisoner has some discretion in relation to the acceptance of them.
94.Having regard to the matters outlined above, I am satisfied that the following matters are ultimately matters for the management, security and operational integrity of the AMC, and the making of decisions about those matters do not constitute the provision of ‘services’:
(a)The classification decisions.
(b)The non-association decisions;
(c)The disciplinary decisions.
95.The claims in relation to these matters have no reasonable prospects of success and are struck out.
96.I am satisfied that the transportation issue complaint does not disclose a basis for complaint under the HR Act, being concerned with the vehicle used to transport the applicant. This is ultimately a matter inherent to the management of the prison.
97.The other matters may be capable of being characterised as services under the DA, although much would depend on the circumstances. Put another way, I cannot conclude, to the standard required to strike the matter out, that these matters are not services. In particular, the applicant is entitled to make the argument that these are services, or perhaps facilities:
(a)The health access issue.
(b)Visitor arrangements issue.
(c)Meal arrangements, in so much as they relate to a special diet.
(d)The loss of property issue.
(e)The complaint handling issue.
Further directions
98.Notwithstanding the above, I am still uncertain as to the particulars of much of the applicant’s case. As such, to some extent I have given him the benefit of the doubt, and this may well have advantaged him and disadvantaged the respondent in the context of this strike-out. This uncertainty and lack of articulation cannot continue.
99.Accordingly, I make the following orders and directions:
(a)Complaints relating to the following matters are struck out as being outside the scope of the Discrimination Act:
(i) The classification decisions.
(ii) The non-association decisions.
(iii) The disciplinary decisions.
(b)The applicant is, by 13 April 2021, to file a document that identifies:
(i) each complaint he wishes to rely upon; and
(ii) in relation to that complaint:
(A)the unfavourable treatment that resulted and/or the condition or requirement that the application says amounts to discrimination; and
(B)the protected attribute he says the discrimination was because of.
(c)If the applicant does not comply with this direction, the Tribunal may dismiss the matter in chambers pursuant to section 74 of the ACT Civil and Administrative Tribunal Act 2008.
The Tribunal notes: The applicant may find it useful to do this by reference to the amended chronology filed by the respondent and identified as R1 in these proceedings.
(d)The matter will then be listed for a further directions hearing.
………………………………..
Presidential Member H Robinson
Date(s) of hearing 25 September 2020 Applicant: In person Solicitors for the Respondent: Ms G Ho, ACT Government Solicitor
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