Justice v Commonwealth of Australia (Department of Human Services Trading as Centrelink)
[2019] FCCA 2726
•29 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JUSTICE v COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF HUMAN SERVICES TRADING AS CENTRELINK) | [2019] FCCA 2726 |
| Catchwords: HUMAN RIGHTS – Disability discrimination – claim of direct and indirect discrimination – applicant given limited access to Centrelink due to concerns about her behaviour – whether linked to PTSD – whether applicant treated less favourably than someone without her disability – whether applicant unable to comply with the conditions imposed upon her – whether conditions reasonable considered. |
| Legislation: Disability Discrimination Act 1992 (Cth), ss.5, 6, 11, 24, 29, 29A, 123 Social Security Act 1991 (Cth) |
| Cases cited: Ellis v The Hoyts Corporation Pty Ltd [2018] FCCA 557 |
| Applicant: | JUSTINE JEWEL JUSTICE |
| Respondent: | COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF HUMAN SERVICES TRADING AS CENTRELINK) |
| File Number: | SYG 3446 of 2018 |
| Judgment of: | Judge Driver |
| Hearing dates: | 26, 27 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 29 October 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Ms P Bindon |
| Solicitors for the Respondent: | McInnes Wilson Lawyers |
ORDERS
The application filed on 10 December 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3446 of 2018
| JUSTINE JEWEL JUSTICE |
Applicant
And
| COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF HUMAN SERVICES TRADING AS CENTRELINK) |
Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant, Ms Justice, is an itinerant disability pensioner[1] and a self-proclaimed prophet.
[1] that being a physical disability
When these proceedings were commenced on 10 December 2018, Ms Justice was known by the name of Victoria Hope Heart. She changed her name at an early stage of the proceedings. She has previously been known by numerous other names.[2]
[2] Miriam-Mary Moses, Jan Annette McGrath, Esther Elizabeth Burnette, Jan Annette Ward, Harmony Huldah Honey, Gloria Holley Cross and Wyona Wendy White-Dove
As Ms Justice has emphasised during the proceedings, she is entitled to live an itinerant lifestyle, which she claims is pursued for religious reasons, but which appears to have been precipitated by a loss of state housing,[3] which Ms Justice says she was forced to abandon. Her very frequent changes of address, coupled with her periodic changes of name and other details, have, however complicated her dealings with the respondent, Centrelink. It has been necessary for Ms Justice to make frequent attendances at Centrelink offices around the country. Those frequent attendances have brought Ms Justice into conflict with various Centrelink employees (who Ms Justice is able to name by their given names) and the escalation of those conflicts led to the imposition on Ms Justice by Centrelink of a Managed Personalised Service programme (“the Programme”), to which Ms Justice strongly objects.
[3] which was the subject of an earlier application to the Australian Human Rights Commission
Ms Justice’s objections include that she is not permitted to visit Centrelink offices in person but, rather, is required to telephone a nominated service line and speak to a nominated officer. Ms Justice asserts that this makes it difficult for her to comply with requirements relating to the maintenance of her pension, especially in the transmission of documents.[4] She brings these proceedings alleging both direct and indirect discrimination contrary to the requirements of the Disability Discrimination Act 1992 (Cth) (DDA).
Interlocutory applications
[4] Ms Justice has apparently complained to the Commonwealth Ombudsman but the outcome of that complaint did not meet her expectations
Recusal application
On 13 June 2019, Ms Justice filed an Application in a Case seeking orders that I recuse myself from the proceedings. I heard that application at the outset of the trial on 26 August 2019. The circumstances were as follows:
On 2 April 2019 Ms Justice issued a subpoena to Centrelink requesting that it produce:
a)item 2: a copy of Dr Brendan O’Sullivan’s medical certificate dated 2 October 2005 “under the name of Miriam-Mary Moses”;
b)item 3: “a list of the last 20 CSOs I saw in Centrelink when I had a service (if they were females) & the reason why they gave me females”;
c)item 4: “a copy of the surveillance at the Roma office of the incident which cost me my service in July 2018”.
Centrelink, through its solicitors, informed the Court by email on 18 April 2019, after having been served with the subpoena, that it required further time (28 days) in which to comply and conduct the necessary inquiries to ascertain the information subpoenaed.[5] Ms Justice initially consented to Centrelink being granted the extra time, which was later retracted. Centrelink did go on to comply with the subpoena:
a)on 13 June 2019 by letter, Centrelink informed Ms Justice that the material requested by her as part of item 3 in her subpoena was prohibited from production under s.207 of the Social Security (Administration) Act 1999 (Cth), but that a member of the staff of Centrelink with appropriate delegation could agree that it is in the public interest to release information to her as the person to whom the information relates.[6] Accordingly, Centrelink enclosed in the correspondence copies of such information with redactions of names (as it was not seen to be in the public interest to release details of staff members of Centrelink). Centrelink sent correspondence confirming this situation to the Court on 5 July 2019;[7] and
b)as for items 2 and 4 sought in Ms Justice’s subpoena, Centrelink informed the Court on 24 April 2019 that it does not hold any record of a medical certificate from Dr O’Sullivan dated 4 October 2005 under the name of Miriam-Mary Moses; and it does not hold surveillance footage of the incident referred to by Ms Justice in July 2018 because Centrelink does not store footage which is more than 45 days old (and the recorders are designed to re-write the footage after this time).[8]
[5] attached to Ms Justice’s affidavit made on 23 July 2019 at page 61; respondent’s court book at page 377
[6] attached to Ms Justice’s affidavit made on 23 July 2019 at page 57; respondent’s court book at page 373
[7] attached to Ms Justice’s affidavit made on 23 July 2019 at page 55; respondent’s court book at page 371
[8] attached to Ms Justice’s affidavit made on 23 July 2019 at page 58; respondent’s court book at page 374
Centrelink provided a further response to the Court by letter dated 5 June 2019 outlining that as for item 2, it also did not hold any record of a medical certificate from Dr O’Sullivan dated 2 October 2005 under the name of Miriam-Mary Moses. Centrelink repeated the response provided previously with respect to items 3 and 4 in its letter of 24 April 2019.
Ms Justice was concerned about the manner in which I handled Centrelink’s response to the subpoena issue to it to produce documents. Ms Justice had sought specific documents relating to a specific time period. The response from Centrelink was relevantly that there were no documents of the kind sought by Ms Justice within the particular time period but they produced other documents outside that time period. Ms Justice took the view that Centrelink was concealing evidence and sought further relief to compel the production of the “missing” documents and to punish the offenders. I ruled that Centrelink’s response to the subpoena was adequate.
Ms Justice was also concerned about the manner in which I conducted a directions hearing on 6 June 2019 which dealt, among other things, with the response to the subpoena. In particular, Ms Justice was concerned that at that directions hearing, I called upon the solicitor for Centrelink before hearing her. The circumstances were that the matter had been through an unsuccessful mediation and I had limited time to make directions before commencing a hearing in another matter and sought to save time by calling on the solicitor first. I conceded, however, to Ms Justice that it would have been better if I had called upon her first.
It is unclear whether the recusal application is based on actual bias or apprehended bias. I treated it as an application based on apprehended bias.
The High Court has articulated the test for apprehension of bias in several decisions, including most recently Michael Wilson & Partners Limited v Nicholls.[9]It involves asking whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.[10]
[9] (2011) 244 CLR 427
[10] at 437 [31]
That involves a two-step enquiry:[11]
a)“the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits”; and
b)“an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits”.
[11] at 445 [63]
It is important that judges should not accede too readily to applications for disqualification and should resist being driven from their courts by the assertions of parties; and that the expression of any preliminary views should not necessitate their disqualification.[12]
[12] Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411
I formed the view that I was not biased against Ms Justice and that these matters would not have led a fair minded observer to conclude that I might not bring an unprejudiced mind to bear upon the principal proceedings. I declined to recuse myself.
Summary dismissal application
On 8 March 2019, Centrelink applied for summary dismissal of the discrimination proceedings. On 2 April 2019, I heard and dismissed that application. Unfortunately, at the directions hearing on 6 June 2019, when I enquired about the status of the summary dismissal application,[13] I was told that it was still on foot. I therefore listed it for hearing at the outset of the trial.
[13] having forgotten that I already dismissed it
Upon realising my mistake, I permitted counsel for Centrelink at the trial to use her liberty to apply to seek that I vacate the interlocutory dismissal order, pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) and to reinstate and hear the summary dismissal application. I ruled, however, that I would not make a decision on that application until I had heard the evidence.
Having heard the evidence, I am of the view that the dismissal of the summary dismissal application was appropriate. Apart from the fact that it was extremely important to Ms Justice that she have a forum to ventilate her concerns, she had an arguable case of indirect disability discrimination. There is evidence that she suffers from Post Traumatic Stress Disorder (PTSD),[14] of which the NSW Housing Commission was aware and it was arguable that Ms Justice was unable to comply, because of that disorder, with the Programme imposed upon her. There were remaining questions whether people without her disability would be more able to comply and whether the imposition of the Programme was reasonable. In my view, those were matters for resolution following the trial.
[14] referred to by Ms Justice as CPTS
For her part, Ms Justice orally sought summary judgment in her favour, but thereafter made no submissions in support of that oral application. I have no doubt that the circumstances of this case did not warrant summary judgment in favour of Ms Justice.
The evidence and submissions
I directed Centrelink to prepare for the trial a court book containing all documents that it, and to its knowledge, Ms Justice, would rely upon at the trial. A court book in two volumes running to approximately 950 pages was produced. Ms Justice, asserting that she did not trust Centrelink, produced her own court book which is considerably shorter and deals only with her own material and substantially duplicates the material in the principal court book. I received both. Ms Justice prepared numerous affidavits in support of her case and relied upon all of them. I received all of them, subject to relevance and submissions. Ms Justice was extensively cross-examined on her evidence. That proved to be a somewhat challenging exercise both for counsel for Centrelink and me. I appreciated the calm and careful manner in which counsel conducted that cross-examination.
Centrelink relies upon only one affidavit made by a Centrelink officer using the pseudonym, ADA, on 11 July 2019.[15] ADA was cross‑examined by Ms Justice with additional questions by me.
[15] I made a suppression order protecting the identity of any Centrelink witnesses in the matter
Substantive proceedings
I accept the submissions of Centrelink as to the legal principles to be applied in this case.
In Ellis v The Hoyts Corporation Pty Ltd[16] at [27]-[28], Judge Lucev conveniently set out the matters an applicant is required to establish in a claim for disability discrimination under the DDA:
[16] [2018] FCCA 557
The matters required to be established by Mr Ellis in this disability discrimination claim include:
a.identification of Mr Ellis’ alleged disability or disabilities;
b.the extent of Mr Ellis’ disability or disabilities and the incapacities that arise therefrom;
c.the conduct said to have been committed by Hoyts Corporation that constitutes discrimination, and specifically what it is alleged Hoyts Corporation has done, when it was done, where it was done, and how each of those factual matters complained about is said to constitute discrimination based upon the alleged disability
d.whether it is alleged that the discrimination is direct or indirect: DD Act, ss.5 and 6;
e.for the purposes of discrimination under s.5 of the DD Act:
i.the circumstances in which it is said that Mr Ellis has received less favourable treatment; and
ii.details of the relevant comparators; and
f.for the purposes of discrimination under s.6 of the DD Act, the facts which are said to constitute a requirement or condition applicable to Mr Ellis, which are alleged to not be reasonable.
Each of the above matters must be set out with a sufficient degree of specificity so that Hoyts Corporation knows the case which it is required to meet.
While the decision in Ellis concerned an interlocutory application to (among other things) dismiss the proceedings summarily pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) and rule 13.10 of the Federal Circuit Court Rules, it remains useful as a convenient summary of the elements required for Ms Justice to make out her claim.
Identification of the alleged disability and the incapacities that arise therefrom
It is a necessary element of establishing unlawful discrimination under ss.5, 6, 24 and 29 of the DDA that the discriminatory conduct occur on the grounds of disability.
“Disability” is defined broadly in s.4 of the DDA to encompass a wide array of physical and mental impairments, and is stated to include “behaviour that is a symptom or manifestation of the disability”.
Ms Justice’s evidence
In her affidavit filed on 21 March 2019, Ms Justice states:
At pages 1-2:
I hereby wish to advise that it is well established that Centrelink have truly discriminated against me since they were well aware of my disability.
As 1) Shortly after I received the letter from Dr Brendan O’Sullivan presented it to Centrelink & they scanned it on my file 2005/2006 not sure.
2) They kept me on the “disability pension” for the next ten years, because of this letter & once I turned 65 years old, offered me the old age pension & I opted to keep the disability pension.
3) Also when I arranged for a solicitor to contact Neshidee on 25/9/2018 – the Solicitor mentioned “what had happened with the medical certificate” and she mentioned that:
“There was a medical certificate from years ago, but they had ignored the current one”
So they paid no heed to my CPTS diagnosed by Dr O’ Sullivan.
At page 4:
.. in a complaint on 29/8/2018 I mentioned my CPTS
At pages 5-6:
Contrary to Miss Cains statement, Centrelink were well aware of my disability and the undue stress I was suffering, so severe that I thought I was having a stroke, as Miss Cains has NO IDEA of how unjustifiably hard it is to be without a service. Also if they checked Brendan O’Sullivan’s medical certificate they would have known not to go ahead with it.
At pages 7-8:
It was included in the 2nd Drs letter plus again I informed in a complaint dated the 29/8/2018 again of my CPTS with fear of my security.
In a further affidavit made on 28 March 2019, Ms Justice makes similar assertions in that she states:
a)(at page 1) that she informed Centrelink “countless times” of her “chronic post traumatic stress”;
b)(at page 2) that she “provided Dr Brendan O’Sullivan’s medical certificate to Centrelink which they scanned on my file shortly after 2/10/2005” and “was never called in again for a medical examination after I provided that letter”;
c)(at page 3): “So I believe I was kept on the pension till 2015 because of my chronic post traumatic stress”;
d)(at page 3): “Everytime I would enter Centrelink to arrange for an appointment, I would inform the intake officer that I require A FEMALE CSO because I have CPTS from males & it cannot be fobbed off as inconsequential as it has been recognised as a disability in HREOC”;
e)(at page 3): “Also if this case goes forward I will do a subpoena on Centrelink for DR O’Sullivan’s letter plus the last 10 CSOs I saw with names to prove I only saw female, because of my CPTS.”
In a further affidavit made on 23 April 2019, Ms Justice asserts (at page 10):
Centrelink have totally discriminated against me on the grounds of disability as they were totally aware of my disability since I gave them [Dr] O’Sullivan[’s] medical certificate and still went ahead with the removal of my service and I informed them continually every time I would enter an office the (sic) I needed a female CSO because of my CPTS from men and not to fob it off as inconsequential as it has been recognised as a disability in HREOC.
Ms Justice also attaches (at page 24) a letter she submitted to “Scott [Morrison] Prime Minister” dated 28 September 2018 in which she purports to lodge a “complaint” against Centrelink for placing her on the Programme. In the letter, she states:
This happened on 6/8/18 & since I have CPT Stress with fear of my security (which has been recognised as a disability in HREOC) since 28/9/2005.
Now at the start of this service on the first day Neshidee the Case Manager hung up on me after a mental health comment against me, there was no where to put a complaint after a week of a NO Service attitude…
Ms Justice goes on to assert (on page 25) that on 26 September 2018, she had a solicitor call her Personalised Service Officer (PSO) at that time, Neshide, on her behalf and enquired as to what had happened to the medical certificate Ms Justice had submitted on 14 August 2018.[17] Ms Justice alleges that Neshide had said that because there was a “letter already on file dated early October 2005 they had decided to ignore the medical certificate & ignore my disability needs”.
[17] a certificate by Dr Bulchekhra Sidari, annexure ADA-29 to the affidavit of “ADA” affirmed on 11 July 2019 (ADA affidavit); respondent’s court book at page 902
In a further affidavit made on 23 July 2019, Ms Justice enclosed several documents including one predominantly typed document dated 30 April 2019 in which she states at page 29:[18]
[18] respondent’s court book at page 345
PROOF THAT CENTRELINK KNEW ABOUT MY DISABILITY BEFORE AND AFTER I WAS PLACED ON THE SERVICE.
Also it is noted on subpoenaed evidence that they were informed on 8/10/2015
1.Now when I had to arrange for a solicitor to ring the PMS Service on my behalf as I was not able to as I would go hysterical over all the disgusting things they had done to me, so she spoke on my behalf.
2.We asked Neshidee if I could have an appointment with Centrelink to discuss getting off the service, she said no. Then we asked her what had happened to the medical certificate and she there was one from long ago (I believe she was referring to Dr O’Sullivan’s medical certificate) but they were ignoring the present one.
3.Also in the first week of the service through all the mental health slurs on and off from different staff members, I believe they knew and were well aware of my disability and that’s why they were harassing me. The only way I didn’t end up with a stroke was when I got the medical certificate at Mt Isa and I had to stop ringing them altogether because of the ATTITUDE OF THE SERVICE OF NO SERVICE.
At page 30,[19] Ms Justice attached a document entitled “Conciliation Agreement/Deed of Release” between “Ms Miriam-Mary Moses” (a former name of Ms Justice) and “Department of Housing (State of New South Wales)”. It appears to have been signed by the parties in 2005. In this document, there is a reference to “Ms Moses” agreeing to provide the Department of Housing with further medical evidence from her treating psychiatrist which outlines her diagnosis and the effects her disability has on her living arrangements.
[19] respondent’s court book at page 350
At page 85,[20] Ms Justice attaches a copy of the letter dated 4 October 2005 from Dr O’Sullivan (“consult psychiatrist”) to Mr Graham Dal Santo at the NSW Department of Housing. The letter is stated to be written in relation to a conciliation agreement between “Ms Moses” and Mr Dal Santo. It states:
She has a chronic psychiatric disability and developed Post-Traumatic Stress Disorder (PTSD) following a robbery and attempted murder on 18.8.01. She suffers from extreme anxiety concerning matters in which she considers her security is threatened or compromised.
[20] respondent’s court book at page 401
Under cross-examination, Ms Justice sought to maintain her position. She acknowledged the differences between the NSW Department of Housing and Centrelink and could not point to a direct link between her dealings in the NSW Department and Centrelink. Essentially, her position was that Centrelink must have known that she suffered from PTSD.
Centrelink’s evidence
In about November 1993, Centrelink became aware of Ms Justice having a physical condition (for which she has been in receipt of the disability pension).[21]
[21] ADA affidavit at [53]
In August and November 2018, Ms Justice provided two medical certificates to Centrelink: the first was dated 14 August 2018 from Dr Sidari, General Practitioner, and the second was dated 8 November 2018 from Dr Rajhi Ahmed, General Practitioner.[22] Neither certificate discloses a current diagnosed condition but states:
a)[Dr Sidari’s certificate] that Ms Justice “presented emotionally distressed, unable to contact the Personal Management services via phone and requiring face to face centrelink services”; and
b)[Dr Ahmed’s certificate] that Ms Justice “presents with emotional distress due to anxiety attacks … She has suffered from previous discriminatory case involving chronic PTSD and becomes mentally unstable when dealing with the personal management scheme”.
[22] ADA affidavit at [55], [56]
On 2 April 2019, at an interlocutory hearing, Ms Justice provided to Centrelink a copy of a letter from Dr O’Sullivan dated 4 October 2005 which records that in 2005 she suffered from PTSD. I accept that Centrelink did not receive a copy of this letter at any time before 2 April 2019.[23] Centrelink has not identified any other medical evidence of Ms Justice’s mental health condition in its records.[24]
[23] ADA affidavit at [57]
[24] ADA affidavit at [58]
Assessment of disability
It is debatable whether the medical certificates of Dr Sidari and Dr Ahmed disclose a “disability” within the meaning of that term in s.5 of the DDA. Dr Sidari describes Ms Justice as being “emotionally distressed”. Dr Ahmed describes her as having “emotional distress due to anxiety attacks … she has suffered from previous discriminatory case involving chronic PTSD”. I accept that Dr Ahmed references a disability Ms Justice previously suffered.
Despite Ms Justice’s belief that Centrelink has been aware since 2005 of her suffering PTSD based on the letter from Dr O’Sullivan, it is clear that she is mistaken in that regard. One possible explanation is that she has confused the NSW Department of Housing as being one and the same as Centrelink. However, she denied that under cross-examination and it is plain that they are different departments in completely different governments. The reference that Neshide made to an old medical certificate on Ms Justice’s file probably relates to the material confirming her physical conditions provided to Centrelink in November 1993. Centrelink only learned of the previous diagnosis of PTSD as part of these proceedings, when Ms Justice provided a copy of Dr O’Sullivan’s letter to Centrelink at the interlocutory hearing on 2 April 2019.
Accordingly, I find that Ms Justice suffered physical conditions at least by November 1993 and PTSD in 2005. I further find that Centrelink learned of the former condition in November 1993 and of the latter condition in April 2019. There is no medical evidence before the Court to confirm the ongoing existence of either condition.
Conduct said to have been committed by Centrelink that constitutes discrimination
To establish her claim of unlawful discrimination, Ms Justice relies on:
a)section 5 (direct discrimination);
b)section 6 (indirect discrimination);
c)section 24 (discrimination in goods, services and facilities);
d)section 29 (discrimination in administration of Commonwealth laws and programs);
e)section 123 (conduct of directors, employees and agents taken to be conduct of employer); and
f)sections 11 and 29A (defence of unjustifiable hardship).
Ms Justice receives various social security benefits under the Social Security Act 1991 (Cth) provided to her by Centrelink. On this basis, Centrelink accepts that it provides services to Ms Justice within the meaning of s.24 and administers a Commonwealth law or program within the meaning of s.29.
Ms Justice’s reliance on ss.11 and 29A is misconceived as those provisions provide a defence to unlawful discrimination.
In summary, it can be concluded that Ms Justice alleges both direct and indirect discrimination by Centrelink in the provision of services or a Commonwealth law or program, and relies on the conduct of Centrelink employees to be the conduct of Centrelink.
In her application, Ms Justice does not clearly specify the conduct that she alleges to be direct discrimination and the conduct she alleges to be indirect discrimination. Her application states that the unlawful discrimination arises from the following:
a)she was placed on the Programme which was totally unsatisfactory; and
b)she requested face-to-face service supported by medical certificates which has been refused numerous times.
Ms Justice’s evidence
Throughout her numerous affidavits, Ms Justice describes various different treatment which she says is discriminatory. For example:
a)in her affidavit filed on 21 March 2019, she states (page 7):
Paragraph 7: I am instructed by Centrelink that my payments of various have been held back from me deliberately since they failed to conciliate at HREOC & my rent assistance was incorrect for weeks.
Hence DISCRIMINATION – treating me differently to how you would treat others.
Paragraph 8: The respondent is mischievous in her hallucination of Centrelink not creating unjustifiable hardship by continuously making verbal mental health slurs against me & deliberately harassing me by refusing me service and making me physically ill with severe pains in the chest from 6/8/2018 to 15/8/2018 & I would actually go hysterical at the thought of having to talk to them.
At page 9:
Paragraph 22. Indirect discrimination:-
Centrelink did not consider my CPTS – which they were well aware of as this is why I believe they were doing all the mental health slurs – & in my case this service – I could not deal with because of how you were promised you wouldn’t get a service & giving me a case manager that lives in WESTERN Australia – NOT available for hours.
b)in Ms Justice’s affidavit filed on 23 April 2019 she includes a “Summary of the 7 points of discrimination committed against me by Centrelink that is relevant to my case”. In this document, Ms Justice appears to assert:
i)direct disability discrimination (at page 9):
A.during the first week of “service” (presumably, the Programme), being subject to “verbal abuse and mental health slurs by Neshidee” and being told “I am hanging up on you as you are not WELL”;
B.being “threatened, abused and yelled at by Dominique”;
C.not being told how the “service” was going to work for her;
D.not being given a complaint process where something could be done to stop the abuse;
E.her details being “coded” and being given direct “NOs”;
F.trying to set up a Mygov account and being denied an appointment;
G.another “mental health slur”;
ii)indirect disability discrimination (also including here the allegations Ms Justice describes as “unjustifiable hardship” and “discrimination in goods services and facilities”) (at page 10):
A)having her first medical certificate (produced on 14 August 2018) ignored, along with the medical practitioner’s request;
B)being told that the medical certificate had been “ignored”;
C)having to use community centres, MP offices and others to help print or fax in rent certificates;
D)not being provided with rent certificates, fax provisions, income statements, etc;
E)not being provided with a place to file complaints; and
F)not investigating the harassment she suffered at Roma office;
c)in a further affidavit made on 23 July 2019, Ms Justice attaches a document (beginning on page 13)[25] entitled “Summary of Dismissal of Centrelink’s Case”. The document initially sets out a range of complaints Ms Justice has with respect to Centrelink’s solicitors regarding subpoena compliance and filing of affidavits. The document then goes on to state:[26]
Now also Centrelink have grossly discriminated against me, under Sect 5, 6, 11, 24, 29, 29A & 123 & left me with unbelievable hardship for over 12 months of
1)Not providing the current rent certificates
2)Not providing temporary concession cards & current pension cards with correct addresses & robbing me of accommodation
3)Not providing me with access to providing my accommodation details to fax them over
4)Leaving me stranded IN A CRISIS SITUATION OF NO SERVICE
[25] respondent’s court book at page 329
[26] at page 16; respondent’s court book at page 332
Similar assertions are made later in the document,[27] with the addition of the complaint that Centrelink has provided her with a case manager who lives in Perth and who “was never available at 8.30am Eastern Standard Time” and on the first time Ms Justice spoke to her:
refused to give me the information of HOW The SERVICE WORKED, and then after refusing to answer my question then Decided to hang up on me and tell me “I WAS NOT WELL” and refused to Return my service after two medical certificates were provided.
[27] on pages 30-31
In other attachments to the same affidavit Ms Justice sets out a further document[28] entitled “The First Week of the Personal Management Service” which sets in detail her many complaints about the Programme and her decision not to use it. It goes on further to set out the deleterious effect that she claims the Programme has had on her.[29]
[28] at page 74; respondent’s court book at page 390
[29] at page 80
Centrelink’s evidence
As explained in the ADA affidavit at [4]-[6], the Programme is a managed service plan which is a tailored way of providing services to Centrelink “customers”, either because an incident has occurred with a customer under the “usual” service delivery method which has been counterproductive (“reactive”) or because a customer has identified vulnerabilities or barriers and thereby needs a tailored method to access the services (“proactive”).
The Programme that Centrelink devised and implemented in relation to Ms Justice was one which provided for a partially restricted face to face service; and partially restricted telephone service, with Neshide. The full details of the Programme are set out in the ADA affidavit at [14]-[15].
The reason that Centrelink implemented the Programme for Ms Justice is explained in some detail in the ADA affidavit at [8]-[12]. In summary, it was implemented as a “reactive” measure in response to various alleged incidents of aggression by Ms Justice at Centrelink offices. The reasons for commencing the Programme are noted in the Case Notes for Ms Justice recorded by Centrelink for the period 31 July 2018 to 31 January 2019 (Case Notes)[30] where the entry for 31 July 2018 records a “zone panel discussion” as follows:[31]
Zone panel discussion 31/7/2018 Discussion: * Long history of incidents and contact with external complaints team; * Has moved between three states in the last three months, six incidents this year; * Recipient is vexatious and agitated as soon as she attends face to face … issues mostly relating to RA payments; * Very transient, nomadic; * PS supportive or referral, will allow consistent decision making and messaging regarding RA. Recommendations: * Implement partial restriction with PS management; * Refer to PS; * Review period 6 months; Proactive contacts to minimise the need for face to face contacts.
[30] ADA affidavit at ADA-2
[31] at page 2
The essence of these reasons were provided to Ms Justice in Centrelink’s letter dated 31 July 2018 informing her of the change to the way she can access the services by being placed on the Programme.[32] The letter states:
[32] ADA affidavit at [16] and ADA-13
I am writing to you following your contact with us at Roma Service Centre on 25 July 2018.
During this contact you were loud and verbally aggressive.
The behaviour is not acceptable. You must act with courtesy and respect towards our staff and other customers at all times.
Your service arrangement
As a result of your behaviour on this occasion and to maintain the safety of our staff and customers, I have decided to limit the ways you can access our services.
In making the decision to implement the Programme, advice was sought from a trained social worker and staff member from assessment services who advised on the appropriateness of implementing the Programme.[33] There is a detailed record of the social worker’s comments recorded in the Case Notes.[34] Relevantly, that records includes the following:
SWO Comments; SWO conducted a file assessment of Ms Heart’s[35] behaviour when she has contact with Centrelink Staff. Ms Heart is a 67 year old woman who is current on DSP and has mental health issues. While Ms Heart has been identified as homeless in 2016, it would appear customer … is making her way around Australia. …
All contact that Ms Heart has with Centrelink staff where there are incidents of aggression, intimidation, verbal and inappropriate behaviour is in relation to Ms Heart providing rental changes for rent assistance. Each contact where a CIMS is recorded shows a pattern of behaviour whereby Ms Heart presents in a heightened and aggressive state when first attending, and also if she has to wait to produce documentation relating to rent assistance. Ms Heart’s behaviour she proving to be distracting to staff and sees Ms Heart being seen and leaving or being asked to leave the office in a short period of time. This behaviour appears also to happen if Ms Heart is required to use a Centrelink phone service however it is less frequent. …
Ms Heart also has a history of domestic violence which may be why she does not like males and prefers to be served by women. Recommendation: Ms Heart to be placed on restricted services with a main contact being a female. This will allow for consistency, monitoring of her behaviour, her movements and rental record. Social worker also recommends a rent assistance review.
(errors in original)
[33] ADA affidavit at [12]
[34] ADA affidavit at ADA-2 at pages 2-3
[35] Ms Justice’s former name – see [2] above
On 6 August 2018, Neshide sent Ms Justice her a letter introducing herself as her direct point of contact for services and explaining the ways in which Ms Justice could contact her.[36]
[36] ADA affidavit at [16] and ADA-14
On 7 August 2018, Neshide called Ms Justice to introduce herself and to explain how the new servicing arrangements would work and the ways in which Ms Justice could contact her. However, it was reported that Ms Justice refused to cooperate with the phone call and insisted that her questions be answered before providing the security and identification information so the call could proceed. The Case Notes record that Ms Justice was “uncooperative, argumentative, talked over Neshide and raised her voice”.[37]
[37] ADA affidavit at [18], [20] and ADA-2 at page 4
It is clear that Ms Justice did not want to be placed on the Programme and from the moment she learned of the decision she objected to it.[38]
[38] ADA affidavit at [17]
Thereafter, Ms Justice breached the Programme several times by attending Centrelink offices without an appointment[39] and persisted in making it clear that she wanted the Programme to cease and would not comply with it.[40]
[39] egADA affidavit at [19], [23], [30]
[40] eg ADA affidavit at [21], [22], [26], [31], [33]
Ms Justice’s complaint about being put on the Programme was investigated and responded to by Centrelink on 2 October 2018. It included an express acknowledgement that Dr Sidari’s medical certificate of 14 August 2018 had been considered.[41] It stated:
Thank you for providing a medical certificate dated 14 August 2018. I acknowledge you would prefer to conduct your business face to face, however until the department is satisfied that you can communicate with us in a polite and courteous manner the current service arrangements will remain in place.
I have concerns regarding the way you communicate with our staff. We have a responsibility to provide a safe working environment for our staff, therefore I must ask you to be respectful and courteous when discussing your matters with our staff, providing them with the opportunity to investigate and respond to any matters you raise. This will help us meet our Service Commitments to you.
Direct discrimination – the circumstances in which it is said that Ms Justice has received less favourable treatment and details of the relevant comparators
[41] ADA affidavit at [34]; annexure ADA-21
It is a necessary element of establishing direct discrimination under s.5 of the DDA that Ms Justice show that because of her disability Centrelink treated her less favourably than it would treat a person without her disability in circumstances that were not materially different.
Treated less favourably?
The requirement of less favourable treatment in s.5 requires proof that Ms Justice has been subject to something adverse, not merely different. I accept Centrelink’s submission that the evidence falls short of showing that any of the treatment has been adverse to Ms Justice. In particular:
a)for all the reasons outlined in the ADA affidavit at [60], the evidence is that the Programme provides Ms Justice with a high level of service and, in fact, a superior level of service compared to customers who are not on the Programme. The staff who operate the Programme are skilled and experienced. It gives Ms Justice a constant point of contact and therefore consistency in decision-making. She has minimal wait time compared to mainstream telephone lines or wait periods at a service centre;
b)while Ms Justice’s objection to the Programme was clear as soon it was implemented, no reason was provided for this beyond her assertion that she “required” face to face servicing.[42] The subsequent provision of the medical certificates from Dr Sidari and Dr Ahmed do not assist in demonstrating why the Programme might be “less favourable” because they simply reiterate the fact that Ms Justice was distressed at having been placed on the Programme;
c)Ms Justice’s complaints about having to locate fax machines to submit documents arise from her own refusal to engage with the “myGov” method of uploading materials or to otherwise engage with her PSO as to the other options available to her for submitting information. Under cross-examination, ADA confirmed that documents could be uploaded as images from a smart phone. If Ms Justice experienced these as being adverse then it has been because of her own decision to engage with the Programme on a minimal basis (if at all), not the result of the Programme itself. In the Case Notes there are entries recording Ms Justice’s request for an appointment to set up a myGov account, the PSO’s efforts to facilitate the setting up of such an appointment, and Ms Justice’s refusal to comply with that arrangement or her hanging up before the PSO could relay the required details to her;[43] and
d)finally, it is tolerably clear that Ms Justice has suffered no disadvantage or change to the level of social security benefits she receives from Centrelink as a result of the Programme being implemented.[44] In addition:
i)the Case Notes for 21 January 2019 (pages 14-15) and 23 January 2019 (pages 17-18) record Ms Justice’s requests for new Medicare and concession cards, those cards being issued to her, and arrangements being made for her to collect the cards at a service centre. She has not been deprived of those services or benefits; and
ii)the Case Notes and the case notes for the period 1 February 2019 – 21 May 2019 (Case Notes 2),[45] record numerous occasions on which Ms Justice has contacted Centrelink regarding discrepancies in her rent assistance payments. There are various instances where the PSO explains to her that her payment has been re-assessed and the arrears paid accordingly.[46] The difficulty appears to arise from the fact that Ms Justice’s accommodation changes almost daily as she travels and stays in hotels and caravan parks and there is a delay involved in receipt of her rent records. This is nothing more than the usual administrative delays or discrepancies that arise in the processing of such payments where records change repeatedly. I accept that there is nothing to suggest that these issues have arisen because of the Programme specifically. In any event, as noted above, Centrelink’s records are that Ms Justice has ultimately received all benefits to which she is entitled since being on the Programme.
[42] eg ADA affidavit at [20], [24]
[43] See, for example, the entries for 9 August 2018 (at page 6), 14 August 2018 (at page 9) and 27 September 2018 (at page 11)
[44] ADA affidavit at [59]-[64]
[45] ADA affidavit at ADA-2 at page 3
[46] see, eg, Case Notes at pages 17-18 and Case Notes 2 at page 3
Accordingly, other than Ms Justice’s unhappiness in being placed on the Programme, the evidence does not demonstrate that she has suffered any “less favourable” treatment within the meaning of s.5.
Less favourable treatment than a person without her disability in circumstances that are not materially different?
Even if I had been persuaded that being placed on the Programme or any of the consequences involved in being on the Programme amounted to “less favourable” treatment, there is no evidence that this was done because of Ms Justice’s disability in the sense that Centrelink would not have treated a person without Ms Justice’s disability that way in circumstances that were not materially different.
Ms Justice has failed to describe the relevant comparator for this purpose, namely a person who does not have her particular disabilities or their manifestation. I accept that the relevant comparator would be a customer of Centrelink without Ms Justice’s disability/disabilities who exhibited behaviour at Centrelink service offices which was perceived as creating an ongoing risk to staff safety and safety of those customers using Centrelink’s services. In particular, there is no evidence proffered by Ms Justice to establish that her behaviour is a manifestation of either her physical conditions or PTSD.
I accept from Centrelink’s Customer aggression – Managed Service Plan (MSP) 104-07050000 (Programme Policy) that any customer who creates an ongoing risk to staff safety through “multiple incidents of customer aggression including harassing or intimidating staff”[47] may be placed on a Programme. Accordingly, Ms Justice was not treated less favourably than a customer without her disability who behaved in the same way as she behaved.
[47] ADA affidavit at ADA-1 at page 2
Further, there is nothing to suggest that the various consequences that Ms Justice alleges to have arisen after being placed on the Programme have differed from the consequences that would apply to any other person without her disability placed on a similar Programme. As explained above, the perceived difficulties Ms Justice experienced with the Programme have been related to the manner in which she has chosen to engage or disengage with the new servicing arrangements and not because of any decision taken by Centrelink as to the form of her Programme or its implementation.
The timing of Centrelink’s knowledge of Ms Justice’s disabilities supports my conclusion that any less favourable treatment has not arisen because of those disabilities. Centrelink has been aware of Ms Justice’s physical conditions since about November 1993. There is a logical implausibility that the decision to place her on the Programme in 2018 or any of the subsequent consequences of being on the Programme have been effected because of a disability about which Centrelink became aware as far back as 1993.
Further, Centrelink did not learn of Ms Justice’s diagnosis of PTSD in 2005 until 2 April 2019, and that knowledge only came about as part of an interlocutory hearing in these proceedings. It is logically impossible for the decision to place Ms Justice on the Programme or any of the consequences of being on the Programme to have been made because of a disability about which Centrelink was unaware.
While Ms Justice alleges at various points in her affidavits that she suffered “mental health slurs”, her evidence of this focussed on only one example, when she spoke to Neshide on 7 August 2018 and claimed that Neshide hung up on her after saying “you’re not well”.
In the Case Notes, there is no record of any such comment being made in the entry for 7 August 2018, but the entry for 8 August 2018[48] records that Ms Justice included the following complaint about her phone call with Neshide the previous day:
Discussion: CUS contacted requesting to lodge a complaint about her PSO [name redacted] for being rude and hanging up yesterday. CUS stated that she asked PSO how this was all ‘going to work’ yesterday however the PSO did not answer her question, started talking about something else, stated that she would talk to her when she was feeling better and terminated the call.
(emphasis added)
[48] ADA affidavit at ADA-2 at page 4
It is clear from the Case Notes entry for 7 August 2018 that the reason the PSO hung up on Ms Justice was that she refused to complete the “PORO” (Proof of Record Ownership, a security requirement necessary before discussion of substantive issues can occur) and insisted that the PSO answer her questions first. Since this was impermissible, the PSO had no alternative but to end the call in the absence of Ms Justice cooperating to complete the PORO, however tiresome that might have seemed to Ms Justice. The comment that she would call back when Ms Justice was “feeling better” (assuming it was in fact made) was a method of ending a phone call in which Ms Justice was recorded as having been “uncooperative, argumentative, talked over PSO and raised her voice”.
Finally, although the social worker (who was consulted prior to the decision being made to implement the Programme) made a reference to Ms Justice having “mental health issues”, it appears that this comment was made in the context of her opinion on review of Ms Justice’s behaviour as recorded on file and not in respect of any medical evidence in Centrelink’s possession. This is confirmed by her speculation about why Ms Justice preferred to deal with female case officers (“Ms Heart has a history of domestic violence which may be why she does not like males and prefers to be served by women”) which suggests that the social worker was not aware of the previous incidents referred to in Dr O’Sullivan’s letter in which Ms Justice’s PTSD is linked to a robbery and attempted murder on 18 August 2001 (which Ms Justice states in her affidavits is the reason why she needs to have female case officers). In any event, this comment does not feature anywhere in the zone panel’s reasoning for implementing the Programme, which is firmly focused on Ms Justice’s behaviour and itinerant lifestyle.
Accordingly, Ms Justice has failed to show that because of her disabilities Centrelink treated her less favourably than it would treat a person without her disabilities in circumstances that are not materially different. Her claim in direct discrimination fails.
Indirect discrimination – the facts which are said to constitute a requirement or condition applicable to Ms Justice, with which she cannot or is not able to comply and which are alleged to not be reasonable
It is necessary to establish indirect discrimination under s.6(1) of the DDA that Ms Justice show that:
a)Centrelink required, or proposed to require, her to comply with a condition or requirement;
b)Ms Justice does not or would not comply or is not able or would not be able to comply with the requirement or condition; and
c)the requirement or condition has or is likely to have the effect of disadvantaging persons with her disability.
However, it will be a defence under s.6(3) of the DDA if Centrelink can show that the requirement or condition is reasonable, having regard to the circumstances of the case.
Requirement or condition?
I accept that the implementation of the Programme which requires Ms Justice to interact with Centrelink in the manner set out in the Programme is the imposition of a “condition or requirement”.
With which Ms Justice does not or is not able to comply?
There is no evidence that Ms Justice cannot comply with the requirement; there is only evidence that she does not wish to comply with it. Ultimately, as the history recorded in the Case Notes and Case Notes 2 demonstrate, when Ms Justice is prepared to comply with the services available to her under the Programme, she is able to access the services she needs (for example, in terms of processing of rent assistance payments and obtaining new concession cards).
While Ms Justice purports to place reliance on the medical certificates of Dr Sidari and Dr Ahmed which suggest that she becomes “emotionally distressed” in not having face-to-face services, this does not mean that she is not able to comply with the Programme. In any event, it is tolerably clear that the statement in those medical certificates is a reflection of Ms Justice informing her medical practitioners about the reason for her becoming distressed. It is a recital of her history rather than a description of a condition which prevents her from complying with the Programme.
Has, or is likely to have, effect of disadvantaging persons with the disability?
Further, even if Ms Justice is not able to comply with the Programme, there is no evidence that it would have, or would be likely to have, the effect of disadvantaging another person with one or more of her disabilities (either her physical conditions or the PTSD).
Ms Justice has not put any evidence before the Court which demonstrates the nature of any of her conditions such as would demonstrate that a person who shares one or more of those conditions would be disadvantaged by being placed on a Programme similar to that implemented for Ms Justice.
Reasonable having regard to the circumstances?
As was disclosed in the letter from Centrelink to Ms Justice dated 31 July 2018, the reason for implementing the Programme for Ms Justice was due to her behaviour towards staff of Centrelink and as a means of ensuring the safety of Centrelink’s staff and customers.
As explained above, the Programme Policy sets out the circumstances in which a Programme will be implemented. In the case of a “reactive” Programme (as was implemented in Ms Justice’s case), the rationale is described as:[49]
a strategy to improve the safety of staff, the general public and departmental property immediately following an incident of customer aggression or counterproductive behaviour. The MSP can include full or partial restriction of the customer’s access to 1 or more service delivery channels.…
A MSP should be implemented when there is ongoing risk to staff safety. An ongoing risk to staff safety would include:
·where a customer has had multiple incidents of customer aggression including harassing or intimidating staff;
·a customer threatens or has physically harmed or stalked staff;
·the severity of the incident is moderate or serious including where customer has been violent;
·we have received information from a specialist officer (for example, Job Capacity Assessor/Prison Liaison Officer) that indicates a potential risk of violence;
·information from a third party, including a shared premise partner or Job Provider that indicates a risk of aggression that needs to be managed.
[49] ADA affidavit at ADA-1
Having its imperatives as the protection of the safety of staff, the general public and Centrelink’s property, I accept that the requirement to receive services through a Programme is a reasonable condition or requirement. Moreover, it is apparent that Ms Justice fell within the first of the categories listed in the Programme Policy as presenting (or at least being perceived as presenting) an ongoing risk to staff safety, in that she had a long history of incidents of “aggression including harassing or intimidating staff”.[50]
[50] see list at ADA affidavit at [10]
Indeed, it seems that Ms Justice was aware of the inappropriateness of her behaviour: see, for example, her comment to the PSO on 8 May 2019: “I was badly behaved on July 25th, but they have no proof as they cannot get the CCTV … I think it is funny”.[51]
[51] ADA affidavit at [52] and ADA-3 at pages 16-17
Accordingly, even if Ms Justice were able to make out the elements of indirect discrimination, Centrelink is able to demonstrate that the requirement or condition of implementing the Programme was reasonable in the circumstances of the case and no unlawful discrimination arises.
Conclusion
Ms Justice is unable to establish the necessary elements of her claim of unlawful disability discrimination. I will order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 29 October 2019
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