Karnauchow v State of NSW, NSW Department of Communities and Justice (Corrective Services)

[2023] NSWCATAD 326

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Karnauchow v State of NSW, NSW Department of Communities and Justice (Corrective Services) [2023] NSWCATAD 326

Hearing dates:

11 August 2023, last submissions received on 13 October 2023

Date of orders:

19 December 2023

Decision date:

19 December 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Andelman, Senior Member
Dr M Murray, General Member

Decision:

The application is dismissed.

Catchwords:

HUMAN RIGHTS – discrimination – on the ground of a person’s disability - on the grounds of homosexuality – direct discrimination – indirect discrimination – goods and services - victimisation

Legislation Cited:

Anti-Discrimination Act 1977

Cases Cited:

Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196; 337 ALR 647

Castlemaine Tooheys Ltd v Williams & Hodgson Transport Pty Ltd [1986] HCA 72; 162 CLR 395

Commissioner of Police v Mohamed [2009] NSWCA 432; 262 ALR 519

IW v City of Perth (1997) 191 CLR 1

State of New South Wales v Whiteoak [2014] NSWCATAP 99

State of NSW (NSW Police Force) v Whitfield [2012] NSWADTAP 27

Waters v Public Transport Corporation (1992) 173 CLR 349

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Andreas Karnauchow (Applicant)
State of NSW, NSW Department of Communities and Justice (Corrective Services) (Respondent)

Representation:

Solicitors:
Applicant (Self-represented)
Respondent (Self-represented)

File Number(s):

2023/00190272

Publication restriction:

1.Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 until further order of the Tribunal the disclosure of the applicant’s offences referred to in paragraph 7 of this Decision is restricted to the applicant, the respondent, their legal representatives and the Tribunal.
2. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 until further order of the Tribunal the publication of evidence given before the Tribunal of the applicant’s offences is prohibited.

REASONS FOR DECISION

1. On 14 June 2023, two complaint made by Mr Karnauchow against State of NSW, NSW Department of Communities and Justice (Corrective Services) (Corrective Services) were referred by the Delegate of the President of the NSW Anti-Discrimination Board to this Tribunal pursuant to section 93(C)(a) of the Anti-Discrimination Act 1977 (NSW) (the Act).

2. The first complaint was that he has been discriminated against on the basis of homosexuality and disability in the area of goods and services between the period of 1 September 2021 to 1 September 2022 pursuant to ss 49M and 49ZP of the Act. The second complaint is that Mr Karnauchow had been victimised for events or conduct alleged to have occurred during the first complaint pursuant to s 50 of the Act.

3. During the hearing Mr Karnauchow made an application to extend the complaint period for the victimisation allegation to include a complaint that his transfer from the South Coast Correctional Centre to Goulburn Correctional Centre occurred because he made the complaint to the NSW Anti-Discrimination Board. Corrective Services objected to the application. The Tribunal refused to give Mr Karnauchow leave to extend the complaint period because of the unfairness it caused Corrective Services who had no opportunity to file any evidence or submissions about the allegation and were not in a position to meet the complaint during the hearing.

4. For the reasons that follow, we have decided to dismiss the application.

Applicant’s Complaints

5. The Tribunal confirmed with Mr Karnauchow at the commencement of the hearing that his claims were about the following:

1. Access to an in-cell laptop with word processing software and access to websites with legal resources;

2. Access to hard copy legal documents and telephone access to a legal representative;

3. Inspection of legal mail;

4. Access to offender programs; and

5. Request for legal material to be provided on a USB or other removable storage devise.

6. Mr Karnauchow has arthritis in his hands and fingers, which is considered to be a disability, and identifies as a homosexual man.

7. Mr Karnauchow is held in custody in a Correctional Centre in New South Wales by Corrective Services. Mr Karnauchow was charged with [not for publication]. These facts are relevant to the classification given to Mr Karnauchow and to the application of policies as to access to offender programs. Mr Karnauchow is classified as an A2 maximum security inmate. [Not for publication]

8. Mr Karnauchow is preparing an appeal against his conviction. He is self-represented.

9. Corrective Services has in place a range of policies and procedures that allow a self-represented litigant to access resources in preparing their legal case. The Custodian Operations Policy and Procedure (COPP) 8.3 - Inmate computers (Computer Policy) explains that access to computers is provided in part to view or prepare legal documents.

10. There are 3 colour coded computers that may be available to people in prison. Green computers are connected to the Offender Access Computer Network. The Green computers are used for education programs and employment purposes. Blue computers are non-networked and are for the purpose of viewing and preparing legal documents. Red computers are non-networked and are for Corrective Services Industries employment purposes.

11. These computers are available in a shared space within the Correctional Centre. People in prison can also make an application for an ‘in-cell laptop’.

12. In June 2022 Mr Karnauchow made an application for an ‘in-cell laptop’ and was provided with a Blue laptop for the viewing of his pre-loaded legal brief only and there was no word processing program or access to legal resources.

13. During the complaint period, Mr Karnauchow had access to Blue and Green computers within the South Coast Correctional Centre Sector 4. However due to Coronavirus disease (Covid-19), lock downs, and having responsibilities for work Mr Karnauchow had limited access to computers and legal resources.

14. Mr Karnauchow does not claim that he had less access to computers because of the disability or because he identifies as a homosexual man either on a separate basis, or if the attributes are considered together.

15. Mr Karnauchow gave evidence that he finds it difficult to handwrite because of his disability taking one day to write two pages with frequent rests every 2-3 minutes because of the pain he experienced in his hands and fingers. He stated that he requested a laptop to type up letters and legal work and two years later he was given a laptop without a program to type up anything. He stated that he has made over 60 requests. Because of the denial of access to computers, Mr Karnauchow had to write by hand which caused him pain and suffering. Mr Karnauchow’s evidence was that there were only two green computers between 140 inmates and that access to computers with legislation is extremely restricted.

16. The substance of the complaint is that Corrective Services has denied Mr Karnauchow access to an in-cell laptop with word processing software, access to legal resources and denied access to legal materials on USB or other removable devices for the purpose of preparing an appeal in a court of law. The legal resources are access to resources on the Legal Aid website under the link ‘Lawyer’ and NSW Case base. Access to these links is restricted.

17. Mr Karnauchow claimed that these denials constitute a failure to provide him with reasonable adjustments and accommodation for his disability and also because he is a homosexual.

18. Mr Karnauchow also claimed that his legal mail was inspected by Corrective Services, and he should be able to access the offender program of his choice regardless of his classification or period of incarceration.

19. Mr Karnauchow claimed that because he has lodged internal complaints he was refused access to hard copy legal documents, telephone access to a legal representative, refused access to offender programs, and that there has been a failure to protect him from assault by other inmates.

20. In evidence are numerous requests Mr Karnauchow made for access to a computer. On one occasion, he mentioned that it was ‘to ease the pain in my fingers’. Those requests were denied by Corrective Services.

21. Mr Karnauchow provided contemporaneous records of conversations he had with correctional staff. Mr Karnauchow’s evidence was that he was called a ‘cripple’ and a ‘poofter’. However the reference to the slur ‘cripple’ referred to the fact that Mr Karnauchow had an injured leg from playing football and not in reference to the hand and arm arthritis.

22. On 26 July 2022 Mr Karnauchow stated that he asked a correctional officer when the wing computer will work and was told that ‘it will never work …you cock sucking grub…’

23. On 2 August 2022 Mr Karnauchow inquired about his email containing judgements. A correctional officer is alleged to have said to him ‘we threw them away, stop fucking complaining, you have a bad name, so shit will happen to you’.

24. On 15 September 2022 Mr Karnauchow asked to use the legal computer in the Education room at 10am. At 10.15am he asked again. The correctional officer said, ‘do not tell me what to do faggot.’ Later Mr Karnauchow said, ‘I have to finish my appeal’. The correctional officer said, ‘you are on our hit list you Russian poofter’.

25. Mr Karnauchow wrote a letter to Corrective Services dated 15 September 2022 setting out his complaints about not getting access to the education Green computers as the Pod computer was not available, the number of lock-ins, and the low number of computers available to inmates. Mr Karnauchow explained that the constant handwriting was causing him significant pain due to his arthritis and that the refusal to access the laptop was ‘potential disability discrimination’.

26. Mr Karnauchow stated that it took him 12 hours to write 5 pages with 5 hours of rest. He stated that he had to revise the submission to the Court of Criminal Appeal from 1800 pages down to 700 to 800 pages. Mr Karnauchow also intended to prepare a Supreme Court bail application, Supreme Court annexed mediation, a complaint to OPCAT, and an application in the Supreme Court to access an in-cell Green laptop.

27. On 22 February 2023 Mr Karnauchow wrote that he had not had access to the Green computer for 70 days because he was waiting for a third password reset. He believed this delay was victimisation due to his lodging his complaint with Anti-Discrimination NSW.

28. Mr Karnauchow sought an outcome that would permit him to purchase his own laptop or other approved items as this would ensure that he does not suffer hardship within the meaning of s 49(2) of the Act.

29. Mr Karnauchow submitted that access to a laptop with a ‘word program’ keyboard in his cell containing within it legal resources is ‘goods’ within the meaning of ss 49M and 49ZP of the Act.

30. Mr Karnauchow points to the fact that the ‘Blue’ laptop currently given to him with no keyboard is listed as ‘property’ in section 4 of the Inmate Property of Custodial Operations Policy and Procedures 2022 edition. Mr Karnauchow also refers to the Concise Australian Legal Dictionary, 6^th ed Lexis Nexis referring to goods as moveable personal property ... for the purposes of Australian Consumer Law s 2(1) goods include … computer software and components, parts and accessories.

31. Mr Karnauchow submitted that the claims are all relating to either goods or services. Mr Karnauchow relied on Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196; 337 ALR 647 at [137] that ‘computer software’ is a good. However, with respect to Mr Karnauchow, this arose because the relevant statute explicitly stated so. As Edelmann J explained at [137], prior to amendments to the Australian Consumer Law, cases had recognised that computer software that was supplied on a physical medium such as a USB was a good but there was some dispute about whether digitally downloaded computer software may not be a good.

Respondent’s Response

32. Corrective Services relied on the statement of Timothy Meeks which provided a narrative of the matters alleged by Mr Karnauchow, numerous correspondence between Mr Karnauchow and the respondent, and attached policies and procedures.

33. Mr Meeks stated that Mr Karnauchow was given access to Blue and Green computers within the South Coast Correctional Centre Sector 4. There were 10 green computers in the training room and Mr Karnauchow had been given regular access to this room. The Green computer is available on a daily basis including weekends. Mr Karnauchow’s access to computers is consistent with access provided to other inmates in line with the Computer Policy.

34. Since June 2022 Mr Karnauchow has been granted an exemption from full time employment to enable him to work on his legal appeal. His yard payments were reinstated. Mr Karnauchow has been provided with printed copies of judgments and case law. As a self-represented litigant he is able to receive correspondence under privilege from exempt legal bodies such as the Office of the Director of Public Prosecutions, Legal Aid Services Commission, the courts and the Office of the NSW Ombudsman. Mr Karnauchow can partake in a range of offender programs however he is not eligible for some programs until at least three years before the earliest release date which will be 2032. Corrective Services denied that correctional staff had victimised Mr Karnauchow.

35. Mr Meeks stated that on 22 June 2021 Mr Karnauchow made a request for an in-cell Green access computer to avoid filling the cell with legal papers. The request made no mention of the disability. On 29 July 2021 Mr Karnauchow made a call to the Corrective Service Support Line requesting access to a Green computer to prepare an appeal. On 5 August 2021 Mr Karnauchow was advised that Green and Blue computers are desktop type computers and unable to go into an inmate’s cell. He was advised that there is no provision in the Computer Policy that allows access to a Green computer in cell. On 5 October 2021 Mr Karnauchow made a further request for an in-cell Green access computer.

36. The Offender Call Action Report notes that on 29 July 2021 Mr Karnauchow sought a laptop in his cell due to the highly sensitive nature of the charges, he also claimed that he has ‘terrible handwriting’.

37. Corrective Services’ response was that inmates may retain a laptop in their cell but not one with word processing software or printing capability.

38. On 8 November 2021 Mr Karnauchow was advised that he can make an application for an in-cell laptop with word processing software that would be considered by the Laptop Committee (not Corrective Services). The Offender Call Action Report ends on 15 September 2022, by this date Mr Karnauchow was still waiting for a response from the Laptop Committee who dealt with applications based on urgency.

39. In about April 2022 Mr Karnauchow wrote to the Correctional Services Commissioner seeking access to Green computer laptop with access to legal resources in his cell. The request stated ‘with my arthritis in my hand, including broken fingers as a previous motocross bike accident has made it difficult to write by hand. Typing up the appeal submissions is significantly less amount of pain than handwriting’.

40. On 30 May 2022 Corrective Services wrote to Mr Karnauchow stating that the request for a personal Green computer was not approved as there is no provision in the Computer Policy for such an outcome and there is no OAC connection in the cell. It was noted that Mr Karnauchow has access to Green computer and legal material in a shared area on a daily basis, including on weekends.

41. On 7 July 2022 Mr Karnauchow again requested an in-cell computer and to be excused from full time employment. Mr Karnauchow stated that he was unable to write well over 1000 pages required as ‘my arthritis in my fingers, wrists, arms and back restricts me due to the pain I experience in this task’.

42. Mr Karnauchow acknowledged that if he was to be excused from employment he would have much more unrestricted, uninterrupted and safe access to green computers.

43. On 11 July 2022 Corrective Services wrote to Mr Karnauchow, excusing him from employment and refusing the request for an in-cell computer on the basis that it is not supported ‘for security reasons’ and there is no provision in the Computer Policy that would allow this. Corrective Services stated that its policy did not permit external laptops and equipment and accessories to be purchased and issued to inmates.

44. On 5 September 2022 Corrective Services informed Mr Karnauchow that a non-legal representative is not permitted to send material on a USB pursuant to cl 2.8 of the computer policy but that it would photocopy the decisions on the USB and provide to Mr Karnauchow.

45. Corrective Services relied on the terms of the Computer Policy to support its decision to not permit Mr Karnauchow to have access to an in-cell laptop with word processing software and access to legal resources.

46. Clause 2.4 of the Computer Policy states that an inmate can get access to an approved laptop that restricts the content to the inmate’s electronic brief of evidence for current court matters. As previously stated, Mr Karnauchow was approved for an in-cell Blue laptop with the electronic brief of evidence for his current court matters sometime around July 2022.

47. Regarding the complaint about inspection of mail, telephone access to a legal representative and access to hard copy legal documents, Corrective Services stated that Mr Karnauchow requested that a representative be reallocated on the inmate phone account to the Legal Contract section. Corrective Services submitted that this reallocation was not supported by policy as the person was not a practicing solicitor and did not meet the definition of a legal representative pursuant to COPP 8.2 – Inmates Telephones.

48. All mail to inmates which is not exempt under legal professional privilege is opened and inspected pursuant to COPP 8.1 – Inmates Mail.

49. Regarding request for USB, Mr Karnauchow made an Inmate Request on 17 August 2022 to receive a USB drive loaded with electronic copies of judgments to be sent in by a non-legal representative. Corrective Services submitted that this is not permitted as it is contrary to COPP 20.8 – Inmate Access to Legal Resources. Mr Karnauchow was offered hard copies of the judgements.

50. Access to the Therapeutic Manager of Psychology is not open to Mr Karnauchow until at least 3 years before his earliest release date which is in 2032. Mr Karnauchow did have access to many other offender programs.

51. Corrective Services submitted that the alleged goods and services identified in the particulars of the complaint by Mr Karnauchow are not services within the meaning of s 4 of the Act and are not goods. Corrective Services does not question Mr Karnauchow’s sexual orientation or identification and does not dispute that he has arthritis which it recognised to be a disability within the meaning of the Act.

52. Corrective Services submitted that the laptop is not a good or a service because Mr Karnauchow’s use of the laptop cannot be considered a ‘tangible product, … and such activity requires a direction as to how it is to be supplied’.

53. Reliance was placed on State of New South Wales v Whiteoak [2014] NSWCATAP 99 for the proposition that goods or services will not include activities in discharge of government functions or statutory duties, which do not have as their primary or sole function meeting the needs of its consumers. As a result, 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, the Appeal Panel considered it unlikely that a service was being provided in those circumstances.

54. Corrective Services submitted that none of the matters listed above were ‘goods’ or ‘services’ within the meaning of ss 49M and 49ZP of the Act but if they were, Mr Karnauchow was not discriminated against on the basis of disability or homosexuality because accessibility to these goods or services is based on ‘availability, functional requirements and daily running of a Correctional Centre’.

32. Indirect discrimination could not have occurred as Mr Karnauchow was not required to comply with an unreasonable requirement with which a substantially higher proportion of persons who do not have his disability comply or are able to comply.

33. Corrective Services denies victimisation on the basis that, to their knowledge, Mr Karnauchow had not previously made a complaint or brought proceedings against Corrective Services or any other person under the Act.

Statutory Framework

57. Section 49B and section 49ZG defines discrimination, as less favourable treatment ‘than in the same circumstances, or in circumstances which are not materially different’, the perpetrator treats or would treat a person who ‘does not have that disability’ or ‘he or she did not think was a homosexual’. This is sometimes referred to as ‘direct discrimination’.

58. Indirect discrimination ‘requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who are not homosexual persons ‘comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply’.

59. Section 4A stipulates that if an act is done for 2 or more reasons and one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason.

60. Sections 49M and 49ZP make it unlawful to discriminate against a person on the ground of homosexuality or disability by:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

61. The term ‘goods’ is not defined in the Act. Services is defined in s 4 of the Act in a non-inclusive way as:

"services" includes--

(a) services relating to banking, insurance and the provision of grants, loans, credit or finance,

(b) services relating to entertainment, recreation or refreshment,

(c) services relating to transport or travel,

(d) services of any profession or trade,

(e) services provided by a council or public authority,

(f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.

62. Corrective Services is a ‘public authority’.

63. Section 50 of the Act makes it unlawful to subject another person to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

Consideration

64. The Tribunal turns to consider the following claims:

1. Access to an in-cell laptop with word processing software, and access to websites with legal resources;

2. Access to hard copy legal documents and telephone access to a legal representative;

3. Inspection of legal mail;

4. Access to offender programs; and

5. Request for legal material to be provided on a USB or other removable storage devise.

65. First, we must decide whether each of these claims involves goods or services or neither as contended by Corrective Services. If the Tribunal determines that these are goods or services, the second issue for determination is whether Corrective Services refused to provide Mr Karnauchow with these goods or services. There is no factual dispute on this point. The third inquiry is whether the refusal to provide the goods or services to Mr Karnauchow constituted discrimination of Mr Karnauchow on the ground of disability or homosexuality either separately, or together, on a direct or an indirect basis.

Goods and services within the meaning of the Act

66. ‘Services’ is to be given its ordinary and broad meaning. It has been described to include ‘any act of helpful activity’ or as ‘conduct tending to the welfare or advantage of another’: Waters v Public Transport Corporation (1992) 173 CLR 349 (Waters) and in IW v City of Perth (1997) 191 CLR 1 (IW) where Brennan CJ and McHugh J found that:

…use of property or facilities owned by or under the control of the Council may constitute the provision of a service… So too may the provision of intangibles such as advice and information in respect of building and town planning matters.

67. Brennan CJ and McHugh J at 11-12 and Dawson and Gaudron JJ at 22-23 in IW called for a plenteous perspective on the provisions in the Act, mindful of the purpose and social goals of preventing unlawful discrimination in various aspects of community life’.

68. The same ordinary and broad meaning ought to be given to the meaning of ‘goods’. Nothing in the Act would suggest that the refusal to provide a person ‘with those goods’ requires there to a change in ownership or for any consideration to pass between the parties. In Whiteoak the Appeal Panel at [53] described ‘goods and services’ as ‘both tangible and intangible products’.

69. Goods and services may be provided together. For example, the supply of beer is a good but the delivery of the beer is a service. Castlemaine Tooheys Ltd v Williams & Hodgson Transport Pty Ltd [1986] HCA 72; 162 CLR 395.

70. Section 2(1) of the Australian Consumer law defines ‘goods’ with an inclusive definition which includes ‘animals, mineral, gas, second hand goods and any component part of, or accessory to, goods’. The Australian Consumer law refers to ‘supply of goods’ and the Act refers to providing ‘the person with those goods’. We do not consider there is any substantial difference in the meaning of the words ‘supply’ and ‘provide’. Broadly stated, we consider that this definition is apt to apply to the term ‘goods’ in the Act. We consider such an approach to construction to be harmonious. The Tribunal’s finding as to whether there are ‘goods’ in any particular case is one of fact ‘though a penumbra of law applies to any finding of fact’: State of NSW (NSW Police Force) v Whitfield [2012] NSWADTAP 27 at [21].

71. Services and goods must be specified, so it can be identified which alleged ‘good’ or ‘service’ gives rise to the unlawful discrimination, the extent to which specification is necessary is fact specific; Waters at 404-405, IW at 17, Commissioner of Police v Mohamed [2009] NSWCA 432; 262 ALR 519 at [35].

72. In Whiteoak, the complaint was about ‘classification’ and ‘development programs’ which occurred within the meaning of the Crimes (Administration of Sentences) Regulation 2008 (NSW). It is in the context of these complaints that the Appeal Panel stated that ‘service’ does not need to be helpful or beneficial and at [158] stated:

… 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.

73. There are three points to note from this statement and the conclusion of President Wright at [217]. First it is clear that the Appeal Panel stated that each case has to be considered on its own facts. Secondly, that the statement applies to ‘governmental functions or statutory duty’ which we take to mean functions and duties that must be caried out pursuant by law. Third, that the governmental functions or statutory duty is being performed for a purpose other than benefiting the person and the relevant class of persons to whom the person is part of. That is, imposing an outcome on either the person or the relevant class of persons to whom the person is part of.

74. In this case the provision of an in-cell laptop with word processing and the other claims were dealt with by Corrective Services pursuant to a policy. Corrective Services had discretion to make decisions within the terms of its policies and procedures and did so. Based on the documents before the Tribunal, Mr Karnauchow sought a review of the initial decision (regarding the in-cell laptop), and a response was provided to him by Corrective Services.

75. For these reasons we reject Corrective Services’ submission that the laptop is not a good or service because it was an activity in discharge of government functions or statutory duties or that the policy must have as its ‘sole or primary function’ of meeting the needs of Mr Karnauchow. We note, however, that on its face, the purpose of the Computer Policy is to assist persons who are in prison. Neither is it established that Mr Karnauchow cannot accept or reject what is done or the outcome. The terms of the Computer Policy operate, in part, by Mr Karnauchow deciding whether or not to apply for a computer in his cell.

76. We also reject Corrective Services’ submission that the laptop is not a good because Mr Karnauchow’s use is ‘associated activities’. This interpretation would create odd situations in which the provision of any good would be considered a service.

77. We consider that provision to an in-cell laptop is provision to a good. Access to an in-cell laptop is provided pursuant to the Computer Policy. The Policy summary explains that access to computers allow an inmate to view legal material provided on an external storage devise, participate in rehabilitation, educational programs, and employment.

78. We find that a keyboard for typing is an accessory to the laptop. We also find that software for word processing and access to particular legal material such as access to NSW Caselaw is a good as it is a tangible product.

79. Hard copy legal documents and a USB are also goods. Access to an offender programs and complaint about inspection of mail are services.

Was access to the goods and services denied for a reason consisting of unlawful discrimination

80. We deal with each claim in turn. Mr Karnauchow’s claim is that he should be permitted to have an in-cell laptop with word processing program and legal resources as this would be a ‘reasonable adjustment’ for his disability.

81. Mr Karnauchow has misunderstood the provisions of the Act as there is no requirement for Corrective Services to provide Mr Karnauchow with reasonable adjustments in the provision of goods or services. Mr Karnauchow has made no submission or led any evidence that he has not been provided with an in-cell laptop because of his attributes, neither has he identified any requirement or condition Corrective Services has put in place with which he cannot comply with.

82. We accept Corrective Services’ evidence that the reason why Mr Karnauchow was denied access to an in-cell laptop with word processing program and legal resources was its compliance with the Computer Policy and not because Mr Karnauchow has a disability or identifies as a homosexual.

83. For these reasons, we find that the refusal to provide Mr Karnauchow with an in-cell laptop with a word processing program and legal resources was not unlawful.

84. We turn now to Mr Kamauchow’s claim regarding telephone access to a legal representative and access to hard copy legal documents. The position before the Tribunal was that Mr Karnauchow had in fact been given access to hard copy legal documents. Corrective Services’ evidence was that access to a legal representative was refused because Corrective Services’s policy only allows access to a person who is a practicing solicitor. This evidence was not challenged or contradicted by Mr Karnauchow. The Tribunal accepts Corrective Services’ evidence that it refused to provide Mr Karnauchow with telephone access to a legal representative because the person was not in fact a practicing solicitor. This claim is dismissed.

85. The next claim is that Corrective Services opened Mr Karnauchow’s mail. Corrective Services admitted that it opened and inspected Mr Karnauchow’s mail pursuant to policy. We accept Corrective Services’s evidence and its submission that there is no evidence to suggest that it acted because of Mr Karnauchow’s disability or his identification as a homosexual man. This claim is dismissed.

86. The next claim is access to offender program. Again, Mr Karnauchow led no evidence that he was denied access to the Therapeutic Manager of Psychology offender program because of his disability or because he identifies as a homosexual man. This claim is dismissed.

87. The next claim is that legal material be provided on a USB or other removable storage devise. Mr Karnauchow led no evidence that he was denied access to a USB or other removable storage devise because of his disability or because he identifies as a homosexual man. We accept Corrective Services’ evidence that it refused to provide Mr Karnauchow with a USB pursuant to its application of the relevant policy. This claim is dismissed.

Victimisation

88. Mr Karnauchow’s claim of victimisation is far from clear. We note the submission referred to in paragraph [27] but there is no evidence to support these assertions and Mr Karnauchow did not suggest that the policies did not apply or were misstated by Corrective Services.

89. Mr Karnauchow’s submission before the Tribunal was that the victimisation was being transferred to Goulburn Correctional Centre, however this occurred outside of the complaint period and leave was not given to extend the complaint period.

90. Mr Karnauchow did not challenge Corrective Services’ submission that he had not previously made a complaint or brought proceedings against Corrective Services or any person under the Act.

91. Mr Karnauchow failed to identify any subsection of s 50 he relied on. Mr Karnauchow’s contemporaneous notes of unprofessional and offensive statements made by correctional staff does not take his case further.

92. For these reasons Mr Karnauchow’s claim of victimisation is dismissed.

Order

93. The Tribunal makes the following order:

1. The application is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

25 March 2024 - Par 7 - 'Not for Publication' added.

Decision last updated: 25 March 2024