Mizner v State of Queensland (Corrective Services)
[2025] QCA 169
•12 September 2025
SUPREME COURT OF QUEENSLAND
CITATION:
Mizner v State of Queensland (Corrective Services) [2025] QCA 169
PARTIES:
JASON MIZNER
(applicant/appellant)
v
STATE OF QUEENSLAND (CORRECTIVE SERVICES)
(first respondent)
JOEL SMITH
(second respondent)FILE NO/S:
Appeal No 12149 of 2024
QCAT No 4 of 2022DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave Queensland Civil and Administrative Tribunal Act/Appeal Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:
Queensland Civil and Administrative Tribunal – [2024] QCAT 468 (Judicial Member Forrest, Senior Member Traves)
DELIVERED ON:
12 September 2025
DELIVERED AT:
Brisbane
HEARING DATE:
13 March 2025
JUDGES:
Bond JA and Gotterson AJA and Crowley J
ORDERS:
1. Leave to appeal be granted in respect of Grounds 7, 9, 11, 13 and 15.
2. The appeal is dismissed.
3. Unless the respondents seek a contrary order, there be no order as to costs.
4. In the event that the respondents do seek a contrary order on the question of costs:
a. Within 7 days of delivery of judgment, the respondents are to file and serve written submissions as to the order sought with respect to costs.
b. Within 7 days of receipt of the respondents’ submissions, the appellant is to file and serve written submissions as to the order sought with respect to costs.
c. The Court will decide the appropriate order to be made on the papers.
5. The Court makes non-publication orders in the terms of the draft proposed orders, which were marked for identification “A” at the hearing on 13 March 2025.
CATCHWORDS:
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – INDIRECT DISCRIMINATION – where the appellant is a prisoner in a correctional centre – where the prisoners in that correctional centre may be required to share their cells unless placed on a “do not double up” list – where the appellant has been diagnosed with mental conditions of post-traumatic stress disorder and borderline personality disorder – where the appellant has physical impairments to his leg and foot – where the appellant claims that his mental and physical impairments cause him to suffer “appreciable or more than minimal disadvantage” when required to comply with the policy that does not allow him to be placed on the do not double up list – whether suffering “appreciable or more than minimal disadvantage” in complying with a requirement is sufficient to infringe s 11(1)(a) of the Anti-Discrimination Act 1991 (Qld)
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the appellant relied on a psychiatrist report at first instance – where there were a number of psychological reports before the Tribunal – where the material evidence provided by the psychiatrist was that the appellant suffered from an impairment – where the respondent conceded and the Tribunal accepted that the appellant suffered from an impairment – where the Tribunal did not explicitly refer to the psychiatrist report relied on by the appellant or the evidence of the psychiatrist given at the hearing – where the Tribunal considered the source material which the psychiatrist report effectively reproduced – whether the Tribunal erred by failing to explicitly refer to the psychiatrist’s report or her evidence in its reasons for decision
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDING OF FACT – OTHER FINDINGS – where the appellant was a prisoner who claimed that he suffered indirect discrimination under the Anti-Discrimination Act 1991 (Qld) in being required to comply with a prison policy – where at first instance, he claimed the discrimination arose because of mental and physical impairments he had that caused him to suffer “serious disadvantage” when complying with the policy – where the Tribunal found that he did not suffer “serious disadvantage” compared to the rest of the prison population – where on appeal, the appellant claimed that the Tribunal’s finding was not reasonably open to it on the evidence – whether the applicable standard of error was established by the appellant such that appellate review could occur
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – POINTS AND OBJECTIONS NOT TAKEN BELOW – WHEN NOT ALLOWED TO BE RAISED ON APPEAL – QUESTIONS NOT RAISED ON PLEADINGS OR IN ARGUMENT – PARTICULAR CASES – QUESTION OF LAW – where at the primary hearing, the appellant sought to prove that he satisfied the legal test under s 11(1)(a) of the Anti-Discrimination Act 1991 (Qld) by demonstrating that he would suffer “serious disadvantage” – where the appellant failed to prove that he would suffer “serious disadvantage” – where on appeal, the appellant sought to prove that he satisfied the legal test under s 11(1)(a) by demonstrating that he would suffer “appreciable or more than minimal disadvantage” – where the point raised on appeal relates to the proper construction of a statutory provision – where the Court may substitute its decision for that of the lower decision-maker – where the respondents did not suggest they would have run their case differently at first instance – where the respondents did not claim that they were prejudiced by having to deal with the point on appeal – whether the question can be raised on appeal
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – INDIRECT DISCRIMINATION – where the appellant is a prisoner in a correctional centre – where the appellant was subject to a policy which meant that he may be required to share a cell with another prisoner – where the appellant claimed that he suffered indirect discrimination in accordance with s 11 of the Anti-Discrimination Act 1991 (Qld) when required to share a cell – where the appellant claimed that the Tribunal failed to consider all of the elements under s 319H(2) Corrective Services Act 2006 (Qld) to determine whether the terms imposed were “reasonable” under s 11(1)(c) of the Anti-Discrimination Act 1991 (Qld) – where at first instance, the appellant made submissions about matters that were not contained in s 319H(2) – whether the Tribunal was required to consider the appellant’s submissions about matters not contained in s 319H(2)
HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the appellant claims that his rights under ss 15(2) and 15(4) of the Human Rights Act 2019 (Qld) were infringed by the respondents’ decisions – where on appeal the appellant claims any degree of infringement on those rights under that Act is a contravention of the Act, even if a discrimination claim under the Anti-Discrimination Act 1991 (Qld) cannot be made out – where at first instance, the appellant only claimed that his rights under ss 15(2) and 15(4) were infringed for the reasons that he claimed s 11 of the Anti-Discrimination Act 1991 (Qld) was infringed – whether the Tribunal decided that there was no breach of those rights solely because there was no indirect discrimination under s 11 of the Anti-Discrimination Act 1991 (Qld)
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the appellant claims that his rights under ss 15(2) and 15(4) of the Human Rights Act 2019 (Qld) were infringed by the respondents’ decisions – where the appellant claims that the Tribunal misconstrued the scope of the rights under those provisions – where the appellant claims that the Tribunal’s reasons regarding his rights under ss 15(2) and 15(4) were simply conclusionary and did not reveal the reasoning process about the scope of those rights – whether the Tribunal failed to give reasons
HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the appellant claims his right to privacy under s 25 of the Human Rights Act2019 (Qld) was infringed by the respondents’ decisions – where the appellant claims the Tribunal misconstrued the scope of the right and gave inadequate reasons in respect of his right to privacy claim by not considering whether the right to privacy includes freedom from interference with his physical and mental integrity – whether the Tribunal properly considered the issues and gave adequate reasons
HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the appellant claims his right to privacy under s 25 of the Human Rights Act2019 (Qld) was infringed by the respondents’ decisions – where at first instance, the appellant claimed that the interference with his privacy under s 25 was arbitrary – where on appeal, the appellant submits that the Tribunal failed to recognise the difference and properly consider the issue as to whether the interference was proportionate in the sense that it was not arbitrary, compared with whether the limit imposed was proportionate pursuant to s 13 of the Human Rights Act 2019 (Qld) – whether the Tribunal correctly understood the difference between the proportionality of the interference in the sense of arbitrariness and the proportionality of the limit imposed, and whether it properly considered the issue
HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the appellant is a prisoner in a correctional centre – where the appellant was subject to a policy which meant that he may be required to share a cell with another prisoner – where the appellant claims that his right to receive humane treatment when deprived of liberty under s 30 of the Human Rights Act 2019 (Qld) was infringed by the respondents’ decisions – where the Tribunal had regard to s 5A of the Corrective Services Act 2006 (Qld) in determining whether the limits on the appellant’s right under s 30 were justified – where the appellant claimed that the Tribunal misconstrued s 5A by treating the factors in that section as a definitive answer to whether the limitation was justified, as opposed to merely taking those factors into account – whether the Tribunal treated the factors in s 5A as the definitive answer to whether the appellant’s right under s 30 was justifiably limited
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the appellant claims that the respondents’ decisions failed to properly consider his human rights in accordance with s 58(1)(b) of the Human Rights Act 2019 (Qld) – where the appellant appeals the Tribunal’s decision that the respondents did consider his human rights on the basis that such a decision was not reasonably open to it on the evidence adduced – whether the Tribunal’s decision was reasonably open to it on the evidence adduced
Anti-Discrimination Act 1991 (Qld), s 9, s 11
Corrective Services Act 2006 (Qld), s 18, s 5A, s 319H
Human Rights Act 2019 (Qld), s 13, s 15(2), s 15(4), s 16, s 17, s 25, s 29, s 30, s 48, s 58(1)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 149, s 153, s 154Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, applied
Hurst v Queensland (2006) 151 FCR 562; [2006] FCAFC 100, considered
Mandla v Dowell Lee [1983] 2 AC 548; [1982] UKHL 7, considered
Owen-D’Arcy v Chief Executive, Queensland Corrective Services (2021) 9 QR 250; [2021] QSC 273, cited
Sklavos v Australasian College of Dermatologists [2016] FCA 179, cited
State of Queensland v Tafao (2021) 7 QR 474; [2021] QCA 56, followed
Thompson v Minogue (2021) 67 VR 301; [2021] VSCA 358, citedCOUNSEL:
P Morreau KC, with E J Lewsey, for the appellant
C J Murdoch KC, with A B Fraser KC, for the respondentsSOLICITORS:
Legal Aid Queensland for the appellant
C E Christensen, Crown Solicitor for the respondents
BOND JA: I agree with the reasons for judgment of Crowley J and with the orders proposed by his Honour.
GOTTERSON AJA: I agree with the orders proposed by Crowley J and with his Honour’s reasons for them.
CROWLEY J: The appellant is a convicted child sex offender, currently serving a lengthy period of imprisonment. He has been in custody in Queensland since 2017. Before that, he served almost 11 years’ imprisonment in a jail in Thailand for similar offending. He is not eligible to apply for parole until 2032.
The appellant is required to serve the custodial term of his sentence in a correctional centre. Despite his crimes and his status as a prisoner, the appellant is a human being. Subject to necessary modifications and exceptions due to his incarceration within a custodial environment, by law he retains fundamental human rights and is entitled to be treated with dignity and without discrimination.
This appeal concerns whether prison authorities indirectly discriminated against the appellant and infringed his human rights when making decisions about the circumstances in which he is to be accommodated within the Queensland prison system.
Queensland Corrective Services (QCS) is the entity of the first respondent responsible for prisoner sentence management and administration and the operation of all correctional centres in this State in accordance with applicable legislation, primarily under the Corrective Services Act 2006 (Qld) (CSA). The second respondent is an Assistant Commissioner of the QCS and the former Chief Superintendent and General Manager of the Wolston Correctional Centre (WCC).
In respect of his present sentence of imprisonment, the appellant was received into custody and held on remand at the Arthur Gorrie Correctional Centre (AGCC). In more recent times, he has been housed at the WCC. When at the AGCC the appellant was, for the most part, accommodated in a single cell. That arrangement changed when he went to the WCC. Since then, he has at times been required to “double-up” and share a cell with another inmate. Such an arrangement is not unique to the WCC. It occurs elsewhere at other correctional facilities in Queensland and has become necessary in order to accommodate a burgeoning prison population.
Although overcrowding at the WCC means that most inmates will be required to double-up, exceptions can be made where it is necessary for the good order and security of the prison or for the safety and welfare of inmates or where personal circumstances require a prisoner to have their own cell. Inmates who do not wish to share a cell may apply to be included on the “Do Not Double Up List” (DNDU List) maintained by QCS. QCS policies and the operational requirements of individual correctional centres dictate the criteria for a prisoner’s inclusion on the DNDU List. Inmates who are assessed as meeting the relevant criteria are included on the DNDU List and are not required to share a cell.
The appellant says the doubling-up arrangement poses particular risks for him. He claims his personality and mental health issues make it difficult for him to share a cell with another inmate. He says he is easily disturbed by noise; that he cannot tolerate lights at night-time; that he needs control over his environment and routine; that having another person in close proximity in his cell causes him discomfort and stress; and that he is in danger of his mental health seriously deteriorating if he was required to share a cell.
For these reasons, the appellant made several requests to be placed on the DNDU List and to be accommodated in a single cell. In decisions that are the subject of this appeal, the second respondent repeatedly assessed the appellant as ineligible for inclusion on the DNDU List; determined that he was suitable for shared-cell accommodation; and denied his requests. The appellant claimed that by making these decisions, the respondents unlawfully indirectly discriminated against him, by reason of his mental health impairments, and infringed his human rights. He applied to the Queensland Civil and Administrative Tribunal (the Tribunal) for a review of the decisions. The Tribunal dismissed his application.[1] The appellant now appeals to this Court against the Tribunal’s decision.
[1]Mizner v State of Queensland (Corrective Services) & Anor [2024] QCAT 468 (Judicial Member Forrest, Senior Member Traves) (Reasons).
Amongst other things, the appellant ultimately seeks orders setting aside the Tribunal’s decision and for the matter to be returned for reconsideration by a differently constituted Tribunal, without further evidence; or alternatively, that this Court substitute the Tribunal’s decision with its own decision, confirming that the respondents unlawfully indirectly discriminated against the appellant under the Anti-Discrimination Act 1991 (Qld) (the ADA) and acted contrary to his human rights, in breach of the Human Rights Act 2019 (Qld) (the HRA).
Appeals to the Court from QCAT
The appeal is brought under s 149 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Under s 149(2), a party to a proceeding may appeal to this Court against a decision of the Tribunal if a judicial member constituted the Tribunal in the proceeding. That was the case here. However, under s 149(3), an appeal on a question of fact, or a question of mixed law and fact, may only be made if the party first obtains the Court’s leave to appeal.
In this case, some of the grounds of appeal concern questions of fact or mixed questions of law and fact. The appellant therefore requires leave to argue those grounds.
For an appeal against a Tribunal decision on a question of law only, s 153(2) of the QCAT Act provides that, in deciding the appeal, the Court may confirm or amend the decision, set aside the decision and substitute its own decision, set aside the decision and return the matter to the Tribunal for reconsideration, or make any other order it considers appropriate. Section 153(3) further provides that if the Court returns the matter to the Tribunal for reconsideration, the Court must give directions about whether or not the Tribunal must be constituted by the same persons who constituted the Tribunal when the decision was made.
Where leave to appeal is granted in respect of a decision of the Tribunal on a question of fact or a mixed question of law and fact, s 154(2) provides that the appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the Court. In deciding such appeals, s 154(3) permits the Court to confirm or amend the decision or to set aside the decision and substitute its own decision.
As with other appeals to this Court by way of rehearing, on an appeal by way of rehearing from a decision of the Tribunal the appellant must satisfy the Court that the order that is the subject of appeal is the result of some legal, factual or discretionary error.[2] The Court is required to conduct a “real review” of the evidence given at first instance, and of the Tribunal’s reasons for judgment, to determine whether the Tribunal has erred in fact or law.[3] The present case does not involve a decision that was the product of the exercise of the Tribunal’s discretion. Accordingly, for each of the grounds of appeal advanced by the appellant the applicable standard for appellate review is the “correctness standard”.[4] As to which, the majority in Warren v Coombes explained:[5]
“The duty of the appellate court is to decide the case – the facts as well as the law – for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.”
[2]Allesch v Maunz (2000) 203 CLR 172, 180-181, [23] (Gaudron, McHugh, Gummow and Hayne JJ); Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, [14] (Gleeson CJ, Gaudron and Hayne JJ).
[3]Fox v Percy (2003) 214 CLR 118, 126-127, [25] (Gleeson CJ, Gummow and Kirby JJ); Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550, 558 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ).
[4]GJL v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857, [15]-[16] (Kiefel CJ, Gageler and Jagot JJ).
[5](1979) 142 CLR 531 at 552 (Gibbs ACJ, Jacobs and Murphy JJ).
If the Court concludes that the Tribunal has erred in fact, it is required to make its own findings of fact and formulate its own reasoning based on those findings.[6] Factual error may readily be demonstrated by “incontrovertible facts or uncontested testimony”.[7] In such cases, the Court’s task is relatively straightforward. Where the Tribunal was in no better position than the Court to assess the evidence, the Court must give effect to its own findings and judgment. However, that will not always be so, and the Court must make due allowance for any advantages enjoyed by the Tribunal. In that respect, it must be borne in mind here that the Tribunal had the advantage of seeing and hearing the witnesses give their evidence and had also conducted a view of the WCC. Accordingly, where any of the impugned factual findings in this case are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the Tribunal or because its assessment of the evidence was assisted by the view it conducted, the Court should not interfere with the Tribunal’s factual findings unless it can be shown that the Tribunal has “failed to use or palpably misused its advantage”, or the factual findings are demonstrated to be “glaringly improbable” or “contrary to compelling inferences” in the case. Factual findings of this kind will include secondary facts which are based on a combination of such impressions and other inferences from primary facts.[8]
[6]Ibid.
[7]Fox v Percy, [28].
[8]Robinson Helicopter, [43]; Lee v Lee (2019) 266 CLR 129, [55] (Bell, Gageler, Nettle and Edelman JJ).
In his original Notice of Appeal, the appellant sought to advance eighteen separate grounds of appeal. Both before the hearing of the appeal and during its running, the appellant amended some of his grounds of appeal and abandoned others. By a Further Amended Notice of Appeal, he now relies upon eleven grounds of appeal. Each of the grounds is detailed. Many assert a range of separate errors of fact or law purportedly committed by the Tribunal. In my assessment, some of the grounds of appeal said to be on a question of law appear to be on mixed questions of law and fact, while others which are said to be on a question of fact, for which leave to appeal would be required, are actually on a question of law only. The proper characterisation of the question posed by each ground of appeal is obscured by the way in which they are drafted. Many of the grounds allege that the Tribunal erred in making a particular factual finding but then set out particulars of what are contended to be individual errors of law that led to the erroneous factual finding. Consequently, it will be necessary to set out the precise terms of each of the grounds that are maintained in order to fully comprehend and address the appellant’s case and to determine whether leave to appeal is required in each instance.
For those grounds that are not on a question of law only, the appellant relies upon principles discussed in QUYD Pty Ltd v Marvass Pty Ltd[9] and Director of Proceedings on behalf of the Health Ombudsman v XD,[10] and seeks leave to appeal on the basis that:
(a) there is a reasonable argument that the errors complained of have occurred and ought to be corrected; and
(b) leave is necessary to correct a substantial injustice to the appellant individually; and
(c) the appeal raises questions of general importance, including but not limited to, novel questions about the relationship between the ADA the HRA and the CSA.
[9][2009] 1 Qd R 41, [6].
[10][2024] QCA 215, [10]; [147].
I will later return to the issue of leave to appeal when addressing the subject grounds of appeal.
The respondents’ decisions and the appellant’s application to the Tribunal
Evidence adduced at the hearing before the Tribunal established the following matters.
The WCC is a high security prison for adult males. Accommodation at the WCC is divided between residential and secure accommodation. It accommodates protection prisoners. It is known as a “shared cell occupancy centre”, where single cells are the exception. The facility initially had 600 individual cells but over time as the number of inmates to be accommodated grew, bunk beds were placed in most of the cells to house more prisoners. As at 30 May 2022, there were 1049 beds across the 600 cells, however, there were also 871 complex protection prisoners that had to be appropriately and safely accommodated across those cells. As at 25 May 2022, there were 81 prisoners on the DNDU List at the WCC.
Operations at the WCC are to be conducted in accordance with all applicable state laws, including in particular the CSA, together with supporting QCS policies and procedures, stipulated in Custodial Operations Practice Directives (COPDs). Of particular importance is s 18 of the CSA, which provides that “whenever practicable” each prisoner in a corrective services facility must be provided with a room that is not shared with any other prisoner. Due to the overcrowding at the WCC it is not practicable for every inmate to have their own cell. Indeed, doubling up has become the norm and prisoners are required to share a cell unless they are included on the DNDU List. Prisoners are only placed on the DNDU List in exceptional circumstances.
Decisions concerning shared accommodation allocation and eligibility for inclusion the DNDU List are made in accordance with the “COPD – Prisoner Accommodation Management – Cell Allocation” (Cell Allocation COPD). Although the Cell Allocation COPD had undergone several revisions over time, insofar as the appellant’s case is concerned the shared cell accommodation placement considerations contained within it (COPD Criteria) remained largely unchanged at all material times. According to Version 6.0 of the Cell Allocation COPD, implemented 16 December 2021, considerations that may impact on whether prisoners are suitable to share a cell included but were not limited to:
(a) if the prisoner has been previously victimised within a corrective services facility;
(b) if the prisoner has previously perpetrated violence against other prisoners;
(c) the prisoner’s history of self-harm and/or suicide attempts;
(d) the prisoner’s offence and correctional history;
(e) the prisoner’s relationships and known associations;
(f) the prisoner’s religious and cultural background;
(g) intelligence information;
(h) the prisoner’s known physical and/or mental health, medical issues, disability and/or cognitive impairment (including liaison with PMHS and/or QHealth if the prisoner is a known open client of these services);
(i) current warnings including escape risk, self-harm episode, enhanced security offender, identified risk, maximum security offender and sex offender flags;
(j) individualised risk assessment for sexual offender placements;
(k) if the prisoner is identified as a prisoner of concern;
(l) if the prisoner is identified as Elevated Base Line Risk (EBLR);
(m) if the prisoner is transgender or identifies as LGBTIQA+;
(n) any other significant issues of concern; or
(o) if the prisoner is on remand.
The above abbreviations, “PMHS” and “QHealth”, refer respectively to the Prison Mental Health Service and Queensland Health. The PMHS is a service provided by QHealth to prisoners within Queensland correctional facilities. Amongst other things, it provides psychological and psychiatric treatment services for prisoners. It is not a part of the QCS. The QCS separately employs its own prison psychologists and counsellors, who provide some frontline services to prisoners and who conduct risk assessments, but they do not diagnose prisoners and do not provide any ongoing treatment to prisoners.
According to evidence given by the second respondent, whilst each of the COPD Criteria were relevant to decisions made about cell placements, in his experience the most important factors were (the primary considerations):
(a) [excluded from publication by order of the Court dated 12 September 2025 until further order];
(b) [excluded from publication by order of the Court dated 12 September 2025 until further order]; and
(c) [excluded from publication by order of the Court dated 12 September 2025 until further order].
In addition to the COPD Criteria that applied across all QCS facilities, due to issues of overcrowding and the scarcity of single cells, the WCC also employed a more limited set of local criteria to determine a prisoner’s eligibility to be placed on the DNDU List (Local Criteria). The Local Criteria included the primary considerations as well as the following matters:
(a) whether the prisoner was on observations;
(b) whether the prisoner was on an Intensive Management Plan (IMP) or Maximum-Security Unit (MSU) reintegration;
(c) whether the prisoner had a psychotic disorder which had been confirmed by the PMHS;
(d) whether the prisoner had an EBLR;
(e) whether there were adverse intelligence holdings in respect of the prisoner;
(f) whether Queensland Health had requested that the prisoner be accommodated in a single cell;
(g) whether the prisoner was on a temporary placement;
(h) whether the prisoner was on a guardianship order.
A prisoner who satisfied any of these primary considerations would not be required to double-up and would be included on the DNDU List. A prisoner who did not might still be included on the DNDU List if they satisfied any one or more of the other factors listed in the COPD Criteria or the Local Criteria, subject to individual assessment. All assessments of requests for inclusion on the DNDU List at the WCC were carried out by a QCS prison psychologist. In carrying out the assessment, the psychologist would interview the prisoner, review relevant case file notes and other records and complete an assessment form. The assessment form included a top section, headed “Must be in a single cell”, under which the three primary considerations were listed, and a further section, headed “Assessment required”, under which the Local Criteria were listed. The assessment form also included a further section for a general formulation and assessment of the request. In each case, the psychologist would undertake an individualised and nuanced assessment of the particular prisoner and their circumstances to determine whether they were suitable for inclusion on the DNDU List.
Despite the fact that the COPD Criteria purported to identify factors relevant to whether a prisoner might be suitable to be placed in shared cell accommodation, as the Tribunal noted in its reasons, at paragraph [11]:
“…the process appears to have become one in which prisoners who did not immediately qualify for the DNDU list but who nevertheless did not wish to ‘double up’ made request or application, in various permissible ways, to be assessed and considered for inclusion on the DNDU list. Through this process, the overcrowded accommodation demands at the WCC seem to have caused the cell allocation decision making at that facility, in practice, to move from one of decisions being made about who might be allocated to a shared cell to one of decisions being made as to who should not be required to share a cell.”
The appellant has been in QCS custody since 30 January 2017 and has been housed at the WCC since 29 November 2018. He has been a long-standing client of the PMHS during his incarceration. Upon intake at the AGCC he was referred for diagnostic clarification of his mental health issues after reporting a history of borderline personality disorder (BPD), Post-Traumatic Stress Disorder (PTSD), depression and anxiety and past suicide attempts. On 31 May 2017, a PMHS psychiatrist assessed the appellant and formed the impression that he suffered from bipolar affective disorder (BPAD), with emerging hypomanic symptoms. On 22 November 2017 another PMHS psychiatrist assessed the appellant and formed the impression that he had a Cluster B personality with possible bipolar spectrum illness, significant anxiety and some traumatic symptoms. On 29 August 2018, another PMHS psychiatrist considered the appellant had an anxiety disorder with anxious mood in the background of a BPD. On 7 November 2018, the appellant was seen by yet another PMHS psychiatrist, who recorded a diagnosis of BPD and differential diagnoses of PTSD, BPAD and an anxiety disorder – unspecified.
Later, on 8 November 2019, the appellant was seen by PMHS psychiatrist, Dr Ian Kemp, who formed the impression that the appellant suffered from complex PTSD, which he noted the appellant was managing with coping strategies he had developed over time, and a possible BPAD. Dr Kemp’s treatment plan at that time was to provide the appellant with supportive psychotherapy.
By 16 September 2020, the appellant was under the care of Dr Anthony Tie, a consultant psychiatrist with the PMHS. Thereafter, according to the PMHS records before the Tribunal, until at least May 2022, Dr Tie remained the appellant’s treating psychiatrist.
Not long after the appellant arrived at the WCC, the appellant was placed on a safety order and for a time was put into single cell secure accommodation for his own protection. On or around 22 February 2019 the safety order was cancelled and the appellant was moved to the residential compound. He was initially placed in a single cell. At that time the number of single cells available exceeded the number of prisoners on the DNDU List. In June/July 2020, a renovation process was undertaken at the WCC to install bunk beds in many of the cells in units within the residential compound. Prisoners were told that many of them would be required to double-up. It was around this time that the appellant first requested that he be placed on the DNDU List. It is not clear whether a formal decision about his request was made at that time but it appears he was told that he did not currently meet the criteria for inclusion on the DNDU List. In about October 2020, the appellant was accommodated in a shared cell with another prisoner. In November 2020, he again asked to be considered for the DNDU List. In support of his request, he provided a short letter from Dr Tie, who stated that he would support the appellant’s request not to share a cell. The appellant was subsequently told that based on the documentation he had provided it was unlikely his request would be approved.
In December 2020, another inmate moved in to share the cell with the appellant. The appellant remained in a shared cell until March 2021. From late 2020 onwards, the appellant made several complaints about his accommodation, including by writing to the Queensland Human Rights Commission (QHRC), asking that it investigate the issue. The QHRC initially advised the appellant that it could not act on his complaint because it appeared that he had not followed the internal QCS complaint procedure, which required that he make a formal “blue letter” complaint to the WCC General Manager. A “blue letter” is confidential or privileged mail, so named because it is sent via a blue envelope. The appellant wrote back to the QHRC, insisting that he had sent a blue letter to the second respondent on 25 July 2020 but received no reply. He further advised that he would write another blue letter setting out his request.
Subsequently, on 3 February 2021, the appellant sent a blue letter to the second respondent, formally asking to be accommodated in a single cell and not a shared cell. The reasons he gave in support of his request included that he had previously served an 11 year jail sentence in a Thai prison, and had a further 15 years to serve on his current Queensland sentence; that while in the Thai prison he had been subjected to horrific and inhumane conditions, where he had been forced to sleep in crowded cells, on bare concrete and under bright lights, had been shackled, starved and deprived; that he had also there experienced violence, disease and repeated loud noises; that he eventually suffered a full mental breakdown as a result of prolonged sleep deprivation and was then treated in a Thai mental institution for a year, where he was diagnosed with severe PTSD; that his experiences in Thailand had left him with “permanent nervous, mental and physical damage including severe panic attacks, flashbacks and extreme sensitivity to noise disturbances, crowding and bright lights”; that as a consequence, he had difficulties sleeping due to noise and lights, and struggled to maintain mental stability while sharing a cell with another inmate; that he was prone to panic attacks and flashbacks in that situation because of the noises made and lights used by a cell mate; and that when deprived of sleep his mental state would decline. The appellant further noted that he had apparently been certified as “17% disabled for physical injuries” and claimed that he was “at great risk” to his mental health while held in a shared cell. He also pointed out that Queensland Health had knowledge of his “longstanding and long reported trauma history” and supported his request.
It should be noted here that the appellant has never produced any documentation or other evidence to the QCS prison authorities that would directly support his accounts of his experiences in Thailand, nor had he provided them with any evidence of a formal mental health diagnosis at the time he submitted his blue letter to the second respondent.
On 16 June 2021, the second respondent wrote to the appellant, advising him that his request was denied as he had been assessed as suitable to be placed in shared cell accommodation and did not meet the criteria that warranted single cell placement.
At about the same time, the QHRC had made contact with QCS about the appellant’s complaint and had requested copies of relevant documentation, including a copy of the earlier blue letter he claimed he had submitted. On 21 June 2021, QCS wrote to the QHRC, providing a copy of his 3 February 2021 request but confirming that no earlier blue letter had been received.
In subsequent correspondence, on or about 26 August 2021, the appellant wrote to the QHRC and requested that it proceed with his matter as a complaint under the ADA. The QHRC did that and the matter proceeded to a compulsory conciliation conference, held in November 2021, but did not resolve. Subsequently, at his request, the QHRC referred the appellant’s complaint to the Tribunal on 24 December 2021. Amongst other relief claimed, the appellant sought a declaration that the conduct of the respondents that he complained of was unlawful under the HRA (human rights complaint) and/or amounted to indirect discrimination under s 11 of the ADA, on the basis of his attribute of impairment due to his mental health issues (discrimination complaint).
On 26 April 2022, the appellant’s lawyer sent an email on his behalf to the second respondent. The appellant was at that time accommodated in a single cell in his unit but had been informed that he would be moved to temporary accommodation for a short period while a bunk bed was to be installed in his cell so that it would be capable of being used as a shared cell. The email was styled as a further blue letter and raised concerns about the appellant’s accommodation situation at the WCC, in particular that he had been told that when he returned to his cell he would be expected to share it with another prisoner. The appellant’s lawyer wrote that the appellant was not able to cope with shared cell accommodation “due to his impairments”, which she specified as: PTSD, BPD and comorbid bipolar personality disorder, autism spectrum disorder, an acquired brain injury, residual foot/leg injuries after sustaining fractures and having surgery, and occasional reliance on a walking stick. Amongst other things, the appellant’s lawyer again requested that the second respondent reconsider the appellant’s previous request to be assessed as suitable for single-cell accommodation, that he be placed on the DNDU List, and that he not be accommodated in a shared cell.
As a result of that request, a further DNDU List assessment was undertaken on 6 May 2022. The assessment concluded that the appellant still did not meet the DNDU criteria. On the same day, upon an application filed by the appellant’s lawyer, the Tribunal made an interim order suspending the operation of any decision to place the appellant in a dual occupancy cell at the WCC.
Subsequently, in light of further material provided during the Tribunal proceedings, (a 2018 pre-sentence report that had been prepared by Dr Palk) the second respondent requested another DNDU List assessment be undertaken. On 27 July 2022 that assessment was completed, with the appellant again being assessed as suitable for accommodation in a shared cell and not meeting the criteria for placement on the DNDU List.
The appellant’s matter was ultimately heard by the Tribunal over several days in April and June 2023. By the time the hearing commenced, the appellant had reduced the material aspects of his case to writing in a pleadings document titled “Complainant’s Further Amended Contentions” (Statement of Contentions) to which the respondents had filed a “Response to Further Amended Statement of Contentions”. A great deal of evidence was adduced at the hearing, which included several affidavits from the appellant and the second respondent and affidavits from the various correctional officers who had conducted the relevant DNDU List assessments. Many of the deponents of those affidavits also gave oral evidence before the Tribunal. The parties each provided written opening and closing submissions to the Tribunal.
One issue that occupied much of the hearing was whether the appellant had an “impairment” for the purposes of his ADA complaint. Although the issue was initially contested, in their written closing submissions the respondents conceded “that the weight of the evidence supports a finding that the Applicant is a person with some form of a post-traumatic stress disorder which is an ‘impairment’ for the purposes of the AD Act.”
The Tribunal delivered its decision and reasons on 13 August 2024, dismissing the appellant’s complaint. With respect to his discrimination complaint, the Tribunal noted the following matters in its reasons for decision:
(a) the appellant had various mental health impairments for the purposes of the ADA, namely PTSD, borderline personality disorder, comorbid bipolar personality disorder, some degree of autism spectrum disorder and some type of acquired brain injury (suffered in a motorcycle crash he was involved in as a young man). He also had some residual physical impairment arising from a foot injury he sustained in the motorcycle crash, although the extent of it was unclear;[11]
[11]Reasons, [25].
(b) the relevant question for determination pursuant to s 11 of the ADA was therefore whether or not the respondents had imposed “a term” with which the appellant does not or is not able to comply, with which a higher proportion of people without the same impairments comply or are able to comply, which was not reasonable;[12]
[12]Reasons, [26].
(c) the parties were essentially agreed that the relevant “terms” in question were the primary considerations identified by the second respondent and the matters listed in the Local Criteria, which the respondents conceded they imposed in order to make decisions about inclusion on the DNDU List;[13]
(d) notwithstanding that a prisoner might satisfy one or more of the criteria, the determination of whether a prisoner was included on the DNDU List was one involving a discretion on the part of the decision-maker, with very little guidance as to how the various considerations were to be weighed and taken into account;[14]
(e) the critical question for determination was whether the terms imposed by the respondents were terms with which the appellant was not able to comply, during the relevant period from mid-2020 through until late August 2021 when he made his complaint to the QHRC that led to his application to the Tribunal;[15]
(f) after considering the evidence adduced, the Tribunal was not persuaded that the appellant was not able to comply with the terms. Whilst the prospect of him having to “double up” might trouble him and was not his preference, the Tribunal was not persuaded that he would suffer “serious disadvantage” in being required to comply with the terms, just like other prisoners in the WCC’s residential section;[16]
(g) in the event the Tribunal was wrong in its conclusion that the appellant was able to comply with the terms, the Tribunal:
(i) accepted that a higher proportion of prisoners not suffering from impairments of the kind ascribed to the appellant would be able to comply with the terms;[17] however
(ii) concluded the terms imposed by the respondents were reasonable in all the circumstances; and
(h) accordingly, the Tribunal determined that the appellant had not been indirectly discriminated against by the respondents through the imposition of the terms by which they decide which prisoners might have to share a cell at the WCC and which ones do not.[18]
[13]Reasons, [28]-[29].
[14]Reasons, [30].
[15]Reasons, [31].
[16]Reasons, [38]; [51].
[17]Reasons, [52].
[18]Reasons, [61].
With respect to his human rights complaint, the Tribunal noted:
(a) the appellant’s complaint was that by placing him in shared accommodation and then assessing him as ineligible for inclusion on the DNDU List, the respondent, as a public entity, had acted unlawfully because:
(i) the decisions were not compatible with human rights, contrary to s 58(1)(a) of the HRA; and
(ii) in making the decisions, the respondents failed to give proper consideration to the appellant’s human rights relevant to the decisions, contrary to s 58(1)(b) of the HRA;[19]
[19]Reasons, [62].
(b) the appellant identified his relevant human rights as those recognised under and protected by s 15 (recognition and equality before the law), s 16 (right to life), s 17 (protection from torture and cruel, inhuman or degrading treatment), s 25 (privacy and reputation), s 29 (right to liberty and security of person) and s 30 (humane treatment when deprived of liberty) of the HRA;[20]
[20]Reasons, [73].
(c) the contentions made in respect of contraventions of ss 15, 16, 17, 25 and 29 were “particularly weak”. The contention made in respect of a breach of s 30 was “arguable”;[21]
[21]Reasons, [120].
(d) the respondents’ decisions did not breach the appellant’s human rights under s 15 of the HRA (recognition and equality before the law) because no indirect discrimination under the ADA had occurred and the decisions did not limit his ability to enjoy his human rights on a discriminatory basis;[22]
[22]Reasons, [78]-[79].
(e) the appellant’s human rights under s 16 of the HRA (right to life) were not engaged as there was no real and immediate risk of serious physical harm or death to the appellant as a result of sharing a cell with another prisoner with whom he was compatible;[23]
[23]Reasons, [83]-[84].
(f) the respondents’ decisions did not contravene the appellant’s human rights under s 29 of the HRA (right to liberty and security of person) because his privacy and home had not been unlawfully or arbitrarily interfered with by being required to share a cell, and much less so merely by not being placed on the DNDU List;[24]
(g) the respondents’ decisions did not breach the appellant’s human rights under s 17 of the HRA (protection from torture and cruel, inhumane or degrading treatment) because he had not established that the decisions would place him at risk of serious deterioration of his mental health such as to result in bodily injury or physical or mental suffering;[25]
(h) the respondents’ decisions did not breach the appellant’s human rights under s 30 of the HRA (right to humane treatment when deprived of liberty) because:
(i)the appellant had not provided sufficient information to indicate that he satisfied the criteria for inclusion on the DNDU List at the time he was placed in a shared cell or when he was considered ineligible for inclusion on the DNDU List; and
(ii) the decisions were also made for the security and good management of the prison and for the safe custody and welfare of all prisoners and thus, by virtue of s 5A of the CSA, which qualifies the operation of s 18 of the CSA and s 30 of the HRA for decisions made by the Chief Executive of QCS or by a QCS correctional officer, no contravention of s 30 of the HRA occurred;[26] but
(iii) in any event, in the context of relevant circumstances pertaining to the WCC and the appellant at the time the decisions were made, the Tribunal was not satisfied the decisions amounted to treatment other than the hardship or constraint that results from being incarcerated in a prison where some inmates were required to share a cell. The appellant had not demonstrated that he would suffer any prejudice that would amount to treating him inhumanely were he required to share a cell, and the making of the decisions did not mean that he was treated inhumanely or in a way that failed to respect his inherent dignity;[27]
(i) even if any of the appellant’s identified human rights had been limited by the respondents’ decisions, such limitations were reasonable and demonstrably justifiable in accordance with s 13 of the HRA;[28] and
(j) on the whole of the evidence, the Tribunal was satisfied that the respondents’ decision made on 27 July 2022, that the appellant did not meet the criteria warranting single cell placement, and the earlier decisions to the same effect made in May 2022 and June 2021, gave proper consideration to the appellant’s human rights relevant to the decision.[29]
[24]Reasons, [91]-[93].
[25]Reasons, [100].
[26]Reasons, [112].
[27]Reasons, [116]-[118].
[28]Reasons, [129]-[131].
[29]Reasons, [147]-[148].
Ground 1:
The Tribunal erred, in reaching the following findings, by failing to refer to, or take into account, material evidence, namely, the evidence of Dr Lenardon:
i. at [38] and [51], and [58], that the appellant was able to comply with the terms imposed on him, under s 11(1)(a) of the Anti-Discrimination Act 1991 (Qld) (ADA): and
ii. at [78]-[79], [92]-[93] and [112]-[119], that the appellant’s human rights protected by ss 15, 25 and 30 of the Human Rights Act 2019 (Qld) (HRA) were not engaged and/or limited.
Dr Anna Lenardon, is a consultant psychiatrist who was engaged by the appellant’s lawyer to assess the appellant and provide a psychiatric report for use in the QCAT proceedings. She assessed the appellant on 3 November 2022 and subsequently provided two written reports and gave oral evidence for the appellant at the hearing before the Tribunal. In her reports, amongst other things, Dr Lenardon set out relevant background information concerning the appellant and his complaint, reviewed relevant records and documents, identified the appellant’s impairments and stated her opinions with respect to the potential for adverse mental health impacts for the appellant if he were required to share a cell.
In her first report, Dr Lenardon noted the following matters under her summary of assessment and formulation:
“Mr Mizner had been placed in both single and shared cells during this custodial episode. Based on file review, it appeared that, when possible, Mr Mizner had been placed in a single cell. There was evidence to indicate that when sharing or facing the prospect of sharing a cell, Mr Mizner had experienced an increase in anxiety, suicidality, and mood instability.
During this custodial episode, Mr Mizner has had formal assessments in relation to his suitability to be placed on a “Do not double up” (DNDU) list in 2021 and 2022 (please refer to Section 4.0). One of the assessors noted that the assessment for single cell approval was ultimately subjective and that the field of psychology was the established authority. Furthermore, it was noted that Mr Mizner expressed concerns in relation to the level of distress he had experienced when sharing a cell and reported fear of becoming suicidal and requiring to be placed under a safety order (i.e., in solitary confinement) due to his traumatic experiences in the Thai prisons. It was suggested if there was a need to place Mr Mizner in a double-up accommodation to contact Psychological Services prior to any changes. Mr Mizner’s treating psychiatrist, Dr Tie was supportive of his request not to share a cell due to ongoing PTSD symptoms.”
The mention of Dr Tie in the above excerpt, referred to the letter of support, dated 28 October 2020 which relevantly stated:
“I write as requested by Mr Mizner, as his current treating psychiatrist from the Prison Mental Health Service at the Wolston Correctional Centre.
I would support his request not to share a cell.
Mr Mizner describes persistent emotional hyperarousal, hypervigilance and intrusive recollections consistent with post traumatic stress disorder, attributable to a myriad of adverse experiences over more than a decade in a Thai prison.
Mr Mizner has been informed that custodial placement is under the sole purview of Queensland Corrective Services, involving consideration of a range of both clinical and non-clinical factors.”
Dr Tie did not give evidence at the hearing, however his letter and his progress notes were amongst the PMHS records before the Tribunal. It is pertinent to note here that, in its reasons, the Tribunal observed that the appellant “relied heavily” on Dr Tie’s letter and further stated:[30]
“Dr Tie wrote simply that he ‘would support [the Applicant’s] request not to share a cell.’ Dr Tie supported this by reference to the symptoms that the Applicant described to him of ‘persistent emotional hyperarousal, hypervigilance and intrusive recollections.’ Dr Tie expressed the view that such symptoms were consistent with post traumatic disorder attributed to the Applicant’s time in the Thai prison system. The records reflect that Dr Tie first saw the Applicant on 16 September, 2020 and again on the date of the signing of the letter bearing the date of 28 October, 2020. He saw him again on 26 November, 2020, 25 January, 2021 and onwards into 2021. Dr Tie did not give evidence before us and his handwritten notes that are in evidence are almost impossible to read. One reference to the issue before us that can be read is recorded on 26 November, 2020 as ‘expressed frustration at not being placed on single cell register.’ Another, on 17 August, 2021 appears to read ‘came in the nick of time... a lifeline… a single cell.’ Without more, little can be discerned as to the basis for the Doctor’s written support for the Applicant’s desire to be included on the DNDU list.”
[30]Reasons, [46].
Dr Lenardon further outlined in her first report that the appellant’s presentation was in line with a diagnosis of PTSD and, given the severity of the trauma he had experienced and the chronicity of symptoms, his condition was consistent with the concept of complex PTSD. She considered that was the main, and most relevant, diagnosis when considering the appellant’s need for a single cell.
In response to a specific question about whether any of the appellant’s symptoms or the characteristics of any diagnosed condition might be exacerbated by the requirement to share a cell with another prisoner, Dr Lenardon stated:
“Given that Mr Mizner relies upon adhering [sic. to] a strict daily routine in order to manage his anxiety and to avoid traumatic triggers, sharing a cell could expose Mr Mizner to further triggers such as lights being turned on during the night, noises in general, and interruption of his sleep. Mr Mizner remains fearful of other prisoners due to past assaults whilst detained in the Thai prisons. Mr Mizner’s mental state at baseline is fragile, hence any of the above destabilisers could cause a further deterioration in his mental state.”
In response to a further question about how long the appellant might be able to tolerate such factors exacerbating his symptoms before experiencing deterioration of his mental health, Dr Lenardon answered:
“It is important to note that it is difficult to quantify exactly for how long Mr Mizner would be able to tolerate exposure to the factors outline [sic. outlined] under Question 7.2 as there are other factors that could influence the outcome at the time of the exposure to a destabiliser (i.e., medication compliance, mental state at that time).
To provide an estimate, any major psychiatric condition could deteriorate after only [sic. a] few days of exposure to factors such as sleep deprivation, acute anxiety and or mood instability.
Given that Mr Mizner has been able to tolerate sharing a cell at times, although this has resulted in an increase in symptoms, I would estimate that Mr Mizner would not be able to tolerate more than two weeks of exposure to destabilising factors.
Given the previous history of bipolar affective disorder, Mr Mizner would be particularly sensitive to sleep deprivation (increased risk of triggering a manic episode).
Furthermore, the risk would increase if the other inmate presented as noisy, not adhering to any routine (i.e., being awake until late) or argumentative.”
As to the potential risks to the appellant or to others if his symptoms exacerbated or his mental health declined, Dr Lenardon opined:
“In case of exposure to triggers, Mr Mizner could suffer a deterioration in mental state, including a manic episode, in the context of a previous diagnosis of bipolar affective disorder.
Mr Mizner presents with a chronic risk of suicide as evidenced by a history of suicide ideations since a young age, and a previous history of serious suicidal attempts. If Mr Mizner’s mental health deteriorated, his risk of self-harm/suicide would most likely increase. Given the lethality of previous suicide attempts (large overdose of diazepam, attempted hanging), a suicide attempt could result in serious harm to Mr Mizner.
Although Mr Mizner has reported an increase in instability, especially towards other inmates whilst sharing a cell, given the lack of previous violence, it is less likely that Mr Mizner would engage in violence.”
Finally, in terms of recommendations for treatment or adjustments of the appellant’s custodial accommodation arrangements, Dr Lenardon stated:
“Mr Mizner has received previous treatment with medications such as mood stabilisers, antidepressants, and antipsychotics with benefit. He is currently not on any medications as per his preference. Given the nature of Mr Mizner’s diagnosis (complex PTSD) it is vital to avoid a sustained exposure to triggers and destabilisers as outlined above. Even if compliant with medications, Mr Mizner would continue to suffer from the psychiatric condition and the medications would only attenuate the symptoms.
If Mr Mizner had to share a cell for short periods of time, the risk of a deterioration in mental state would be mitigated if the other inmate was older and was known to Mr Mizner. Furthermore, Mr Mizner would benefit from being alerted of a change in circumstances as soon as possible (i.e., having to share a cell or having to change location), in order to give him time to adjust to the change.”
When cross-examined, Dr Lenardon said that she had spoken to the appellant for about an hour and a half when she assessed him. She agreed that some of the things he had said may have caused her to query whether he was an accurate historian, however she stressed that it was not her role to find out whether he was lying. His presentation during assessment did not strike her as someone who was fabricating or trying to manipulate. She pointed out that in none of the medical records she had reviewed did any of the psychiatrists raise a problem with the appellant’s reliability.
Dr Lenardon confirmed her diagnosis that the appellant had complex PTSD. She agreed that PTSD was a disorder under the anxiety classification. She further agreed that the condition could fluctuate at times in terms of severity, depending on a range of factors, including stressors or triggers, but that it was a more enduring disorder and even with treatment a person would continue to experience quite emotional symptoms. She accepted that in prison it would be hard for the appellant to avoid triggers and that it would be difficult even for a person in life generally to avoid triggers. She accepted a person with PTSD could apply mitigating strategies to avoid such triggers.
Dr Lenardon agreed what she had recorded in her report about the particular difficulties the appellant experienced when sharing a cell were all matters that the appellant had told her. When asked if they were the only examples the appellant had given of being in a shared cell, Dr Lenardon said that she thought the appellant’s concern was the increase in anxiety, not being able to sleep and feeling highly anxious throughout the day, which in turn related to PTSD symptoms of hypervigilance and potentially being in a situation of danger. Dr Lenardon said the things the appellant had described related to his inability to control his environment. She said he had been subjected to extreme trauma in the Thai prison and he presented as extremely fearful and quite hypervigilant. She said that his need to control his environment was something that often happened with a victim of trauma.
Dr Lenardon agreed that sudden noises would be inevitable and unavoidable in prison but reiterated that the appellant being in his cell, and having a small environment that he could control, could be an effective way of controlling those triggers. When asked whether the appellant would still be subjected to triggers if he were to be in a single cell, Dr Lenardon said:
“Well, it’s also a question of - of feeling safe, you know. For someone who’s been deeply traumatised as Mr Mizner has, including his history of - of childhood abuse, having someone in the cell simply will impact that, so having a cell where you can be by yourself is actually a - I would say, accepted for survival of the - of trauma - accepted measure to mitigate that. Now, we’re not seeking to resolve that. Mr Mizner has to remain in a prison environment. We’re not seeking a transfer to hospital, but certainly, having the space that he doesn’t have to share with someone else would mitigate because the - the - well, the - the - the retrigger and reexperiencing. You know, Mr Mizner not only has PTSD but for a period of time, he was treated for bipolar affective disorder, which is a really serious condition. Now, I didn’t see symptoms of bipolar affective disorder at the time of my review, but medical records consistently indicate that he was diagnosed, and he was treated for bipolar affective disorder, which again, it is quite - well, is actually a serious mental disorder.”
With respect to her opinion about how long the appellant could tolerate exposure to destabilising factors, Dr Lenardon agreed that the exact period could be influenced by a number of factors. She accepted that one such factor would be if the appellant was able to utilise grounding techniques. She added however that would require the appellant to be ready and able to undergo psychological treatment and to be taught those techniques and said as far as she was aware he had not previously received any such treatment.
Dr Lenardon said she was aware that the appellant had been in a shared cell from July 2020 to September 2021. When it was put to her that the appellant could tolerate more than two weeks of exposure to destabilising mental health factors, Dr Lenardon said that she thought the prison records correlating with that period showed times when the appellant was more anxious. She added that her opinion about inability to tolerate more than two weeks of exposure did not mean that the appellant would become acutely unwell and require hospitalisation. Rather, what might be observed would be an increase in distress, which she believed had been recorded in the appellant’s case. She agreed that the matters she had mentioned in her report, that if the appellant had to share a cell for a short period of time his risk of deterioration in mental health would be mitigated if the other inmate was older and known to the appellant and if he was alerted to any such change in circumstances as soon as possible so he had time to adjust, were mitigating matters that would potentially extend the period he could tolerate exposure to destabilising factors.
Although the Tribunal referred to Dr Tie’s letter and to other evidence concerning the appellant’s mental health issues in its reasons for its decision, it did not make any specific reference to the evidence of Dr Lenardon in reaching the impugned findings, or at all.
Submissions
The appellant submits that Dr Lenardon’s evidence was cogent, reliable and compelling and that it was relevant to the Tribunal’s consideration of whether, for the purposes of his discrimination complaint, he was able to comply with the terms as contemplated by s 11(1)(a) of the ADA, as well as whether, for the purposes of his human rights complaints, the respondents’ actions limited his human rights as a person with impairment.
The appellant says he relied on Dr Lenardon’s evidence to establish his psychiatric diagnoses and their impact on his ability to cope with shared cell accommodation; as well as the risk to his mental and physical wellbeing if he was required to share a cell. He submits the evidence was thus material to the issues for decision, or to resolving the parties’ competing positions.
Despite its apparent importance, the appellant points out that the Tribunal did not refer to Dr Lenardon’s evidence, either expressly or by implication. He says such an omission indicates it was overlooked or not considered and amounts to an error of law, similar in kind to a failure to give reasons.
In support of his argument, the appellant contends that it is evident from its reasons for concluding that he could comply with the terms imposed that the Tribunal found that there was no “sound support in the expert psychiatric evidence” to support his evidence that sharing a cell had a significant deleterious impact on his mental health. The appellant says the Tribunal could not have reached that conclusion unless it ignored Dr Lenardon’s evidence, as her evidence clearly supported his evidence with respect to risks to his mental and physical wellbeing if he was required to share a cell. He further says that for the Tribunal to conclude that the respondents’ decisions did not impact upon him to the extent required to establish indirect discrimination under s 11(1) of the ADA, it must necessarily have rejected Dr Lenardon’s evidence.
The appellant makes a similar argument with respect to the Tribunal’s consideration of his human rights complaints and its conclusions that none of the identified human rights were contravened by the respondents’ actions. In that respect, the appellant says that it is apparent that the Tribunal considered his evidence and the evidence of other mental health professionals and corrective services officers but failed to take into account Dr Lenardon’s evidence, particularly insofar as it answered the Tribunal’s concerns about the lack of foundation for Dr Tie’s recommendation.
Although they concede that the Tribunal did not expressly refer to Dr Lenardon’s evidence, the respondents submit that when considered as a whole it is apparent that the Tribunal had not overlooked her evidence and did not err by failing to refer to it. The respondents say that the reasons given by the Tribunal were adequate in all the circumstances and no error of law is demonstrated.
The respondents point in particular to instances in the Tribunal’s reasons where it referred to certain matters which they say could only have come from Dr Lenardon’s evidence. They further submit that it was not necessary for the Tribunal to specifically refer to Dr Lenardon’s evidence, or make any specific finding about it, in circumstances where the respondents had conceded the appellant had impairments of the kind the Tribunal found; where although Dr Lenardon had expressed opinions about possibilities that could occur as a result of the appellant’s medical conditions if exposed to certain triggers, the Tribunal correctly observed that none of those things had actually happened; where the parts of her evidence in which she recited the appellant’s symptoms and risks, simply repeated what she had been told by the appellant, which the Tribunal did consider; and where the Tribunal plainly did not accept the appellant’s evidence about his symptoms and risks to his mental health and therefore the factual foundations for Dr Lenardon’s opinions were simply not established.
Consideration
It is true that the Tribunal did not specifically refer to Dr Lenardon’s evidence. However, that omission does not of itself necessarily establish any error of law. Properly understood, the appellant’s contention under this ground is that it was an error of law for the Tribunal to make the particularised factual findings without taking into account the relevant evidence of Dr Lenardon. That conclusion is the inference the appellant invites the Court to draw from the absence of any reference to her evidence in the Tribunal’s reasons.
The Tribunal is a court of record from which an appeal to this court lies.[31] It was obliged to give reasons for its decision.[32] It is well-established that where there is a duty to give reasons, a failure to give adequate reasons may amount to an error of law.[33] Whether reasons are adequate will ultimately depend upon the circumstances of the particular case, including the nature and significance of the issues in question and the matters for determination.
[31]QCAT Act, ss 149, 164(1).
[32]QCAT Act, s 121(4).
[33]Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 257-259 (Kirby P); Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 441 (Meagher JA); Drew v Makita (Australia) PtyLtd [2009] 2 Qd R 219, [57] (Muir JA, with whom Holmes JA and Daubney J agreed).
In Beale v Government Insurance Office of NSW, Meagher JA stated the following relevant principles with respect to the adequacy of reasons, which are applicable here:[34]
“… No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it… Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.
Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached…where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear…Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance...
Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.”
[34]Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443-444 (Meagher JA).
The appellant’s case here is premised on the first principle identified by Meagher JA in Beale.
In order to assess whether the inference the appellant contends follows from the Tribunal’s failure to refer to the evidence of Dr Lenardon ought to be drawn, it is necessary to put the appellant’s contention into its full context and to consider whether some other reason might logically explain its omission.
The impugned findings of the Tribunal at paragraphs [38], [51] and [58] of its reasons form part of the reasons the Tribunal gave for concluding that the appellant had failed to prove that he was not able to comply with the terms imposed by the respondents. At the commencement of this part of its reasons, the Tribunal stated:[35]
“After considering the evidence, including the affidavit evidence and oral evidence of the Applicant under cross-examination, we are not persuaded that he is not able to comply with the terms. Most particularly, whilst the prospect of having to ‘double up’ might trouble him and is not his preference, we are not persuaded that he will suffer serious disadvantage in being required to comply with the terms just like other prisoners in the WCC’s residential section are.”
[35]Reasons, [38].
It may well be that by its general statement that it had considered “the evidence” the Tribunal implicitly included the evidence of Dr Lenardon. Regardless, it would have been preferable for the Tribunal make some specific reference to Dr Lenardon’s evidence in its reasons so that the position was clear. Nevertheless, I am not prepared to draw the inference that such an omission means that the Tribunal overlooked the evidence or did not consider it in making the impugned findings. Having regard to the nature of Dr Lenardon’s evidence, the nature and circumstances of the case and the issues for determination, and the entirety of the Tribunal’s reasons, I consider specific reference to Dr Lenardon’s evidence was not necessary and its absence is rationally explicable.
It must be borne in mind that Dr Lenardon was an expert witness giving opinion evidence. She did not purport to give evidence of matters she had herself witnessed. To the extent that she spoke of the appellant’s “presentation” in her reports and oral evidence at trial, it is apparent that her evidence was based upon the history she had obtained from a file review of the documentation provided to her and the information she had obtained from the appellant during her interview with him.
It must also be borne in mind that for the purposes of the appellant’s discrimination complaint the relevant period with which the Tribunal was concerned was from mid-2020 through until late August 2021, when he made his complaint to the QHRC that led to his application to the Tribunal; and that for the purposes of his human rights complaint, the relevant period was from about 12 July 2020 through until 27 July 2022, during which time the respondents made various decisions about his accommodation and assessed him as ineligible for inclusion on the DNDU List.
Much of Dr Lenardon’s evidence concerned the appellant’s diagnoses and was directed at establishing the fact of impairment. However, as was accepted by the appellant in closing submissions before the Tribunal, given that the respondents ultimately conceded he did have an impairment, that matter was no longer a disputed issue for the Tribunal to resolve. As noted above, the Tribunal found that the appellant did have mental health impairments, that included “some form” of PTSD. That finding was consistent with Dr Lenardon’s evidence. In the circumstances, there was no need for the Tribunal to further refer to Dr Lenardon’s evidence on that issue.
As to Dr Lenardon’s evidence of the actual mental health impacts and the reported symptoms experienced by the appellant as a result of fearing the prospect of doubling up, or being required to do so, during the relevant periods, Dr Lenardon’s evidence was again based on information provided to her. She relied upon what she had read in records or documents prepared by others and what she had been told by the appellant. Dr Lenardon did not purport to provide any expert opinion evidence in interpreting the records. Her repetition of what she had read and been told did not produce independent evidence of the facts recited. It was essentially hearsay. The Tribunal had the primary evidence, including the relevant records from the WCC, QHealth and the PMHS, and the evidence of the appellant and other witnesses, which it referred to and considered in its reasons. Thus, in my view, the Tribunal did not need to refer to Dr Lenardon’s evidence about those matters.
When considered as a whole it is apparent that the Tribunal closely considered the appellant’s evidence and other relevant evidence concerning his symptoms and the mental health impacts upon him resulting from the respondents’ decisions. In doing so, it is apparent that the Tribunal rejected his evidence and accepted and preferred the other evidence before it, particularly that contained in the contemporaneous case notes made by corrective services officers and records of the prison psychologists, counsellors and staff who saw and assessed the appellant at the time he presented with his various complaints.
In that respect, the Tribunal noted that the appellant’s evidence was that he was hypersensitive to sleep disturbances; that when sharing a cell the normal behaviour of his cellmate will frequently wake him up; that he can experience panic attacks and extreme anger; and that he can sometimes then have difficulty getting back to sleep and has experienced seizures. The Tribunal further noted that the appellant’s evidence in these respects was generally corroborated by the evidence of the prisoner with whom he had doubled up when at the AGCC, who had provided an affidavit to support the appellant’s case and was not cross-examined on his evidence.[36]
[36]Reasons, [40].
Otherwise, in the balance of its reasons on this issue, it is apparent that the Tribunal doubted the veracity of the appellant’s evidence concerning his mental health concerns and risks if he was required to share a cell and considered other evidence did not support his evidence or his case. The Tribunal did so for various reasons which it identified.
First, the Tribunal thought it was significant that no similar corroborative evidence had been given by any of the other prisoners with whom the appellant had shared a cell since being moved to the WCC.[37]
[37]Reasons, [41].
Second, after noting that the mid-2020 period was “quite significant in the determination of this matter”, the Tribunal observed that although the WCC records from that time recorded that the appellant had raised his own subjective mental health concerns and had reported heightened anxiety ahead of the introduction of the doubling up requirement, those self-reports were at odds with the recorded observations of the WCC prison psychologists and QCS staff who saw and assessed the appellant. The Tribunal concluded that the records supported findings that the appellant was not presenting in a manner entirely consistent with what he was reporting.[38] The Tribunal further noted that the records from 17 June 2020, when the appellant saw Dr Kemp from the PMHS, reflected much similar content.[39]
[38]Reasons, [42].
[39]Reasons, [43].
Third, the Tribunal noted that in his oral evidence at the hearing, the appellant had “repeatedly derided” the suggestion that he was honestly reporting to the authors of the records that he did not feel suicidal at the times he was seen by prison psychologists and counsellors and had instead explained that he had not been honest with them because he feared being placed in the Observation Unit at the WCC if he was. The Tribunal noted that it had visited the WCC during the hearing and had viewed the Observation Unit and whilst “it was not the most salubrious of places” the Tribunal saw that it consisted of individual cells that were secure, safe and constantly monitored. It rejected the appellant’s contrary evidence that “made it sound as if being in there under observation was a fate worse than the prospect of suicide or deliberately harming himself.”[40] Hence, his explanation for not being honest with the authors of the records was not accepted by the Tribunal.
[40]Reasons, [44].
Finally, with respect to Mr Connellan’s assessment, the Tribunal noted and concluded:
“[143] On 19 July 2022, Mr Andrew Connellan, Senior Psychologist undertook a DNDU Assessment of the Applicant in respect of which he gave evidence that:
(a)he was aware of human rights legislation having been implemented and would have received training conducted at the prison in relation to that;
(b)his usual practice was to, relevantly, assess a prisoner against the COPD, and, submit his work for review by Ms Sheffield;
(c)his assessment had regard to the human rights of the Applicant.
[144]On 27 July 2022, Mr Connellan completed his report of the DNDU Assessment. We note that Mr Connellan was not seriously challenged on that evidence and that it was not put to Mr Connellan in cross-examination that he did not give consideration to the Applicant’s human rights when undertaking his assessment on 19 and 27 July 2022.
…
[147]The DNDU assessments and the decisions that followed not to place the Applicant on the DNDU List were decisions that needed to be made in accordance with s 58(1)(b). On the whole of the evidence we are satisfied that the assessment preceding the DNDU decision and the decision made on 27 July 2022 that the Applicant did not meet the criteria that warrants single cell placement, gave proper consideration to human rights relevant to the decision. The decision reached on that occasion was, in effect, the same as decisions earlier reached, including in May 2022 and June 2021.
[148]We have found that there has been no breach of the Applicant’s human rights. We have also found that the assessments and decision made in July 2022 not to place the Applicant on the DNDU List was made in accordance with s 58(1)(b).”
Submissions
The appellant submits the Tribunal committed various errors of law and ultimately reached a conclusion that was not reasonably open to it on the evidence adduced at the hearing.
He submits that there was no evidence presented by the respondents to show that the relevant prison psychologists or counsellors had actually given proper consideration to the appellant’s human rights, as required by s 58(1)(b) of the HRA. He stresses that in circumstances where that matter was clearly in issue, and where it was one upon which the respondents bore the onus of proof, the evidence relied upon by the respondents was inadequate and the Tribunal could not have been satisfied that they had given proper consideration to his relevant human rights. He further submits that by noting that the evidence given by Ms Stafford and Ms Sheffield was not challenged, it is implicit that the Tribunal wrongly reasoned the rule in Browne v Dunn[85] would allow it, without more, to accept the general evidence of those witnesses. The appellant contends the rule in Browne v Dunn had no application whatsoever. Furthermore, he says, bearing in mind that the respondents bore the onus of proof, the Tribunal was required to consider the sufficiency of the evidence on the point that had been adduced by the respondents and, had it done so, it could not reasonably have reached the conclusions it did.
[85](1893) 6 R 67 (HL).
As for Mr Connellan’s assessment, the appellant points out that it occurred after he had made his complaint and therefore it could not assist the Tribunal to determine whether the respondents had given proper consideration to his human rights when undertaking the assessments that are the subject of his complaint. In any event, he submits that whilst Mr Connellan may have identified his relevant human rights, his assessment was perfunctory and showed no understanding of those rights, nor how they would be impacted, and thus his assessment also did not comply with s 58(1)(b) of the HRA.
In their written outline of submissions for the appeal the respondents initially submitted that the Tribunal did not err in any of the ways the appellant contends. They submitted it was evident from the Tribunal’s reasons that it correctly identified the matters to be considered in respect of s 58(1) of the HRA; that there was sufficient evidence adduced concerning the assessments undertaken and their compliance with s 58(1)(b); and that it was open for the Tribunal to find that they had given proper consideration to the appellant’s relevant human rights when undertaking each of the DNDU List assessments.
Subsequently, in oral submissions at the hearing of the appeal, the respondents conceded that the evidence of the earlier assessments undertaken by Ms Stafford and Ms Sheffield may not have been sufficient to show that they had complied with s 58(1)(b) of the HRA. Nevertheless, they maintain that the evidence shows Mr Connellan later undertook a far more detailed assessment which did comply with s 58(1)(b), and that his assessment was relevant as it superseded the earlier assessments.
Consideration
Save for particular (c), which again asserts that the finding made by the Tribunal was “not reasonably open”, Ground 15 once again seems to involve a question of mixed law and fact, requiring leave to appeal.
In my view, the concessions made by the respondents during the hearing of the appeal concerning the inadequacy of the DNDU List assessments undertaken by Ms Stafford and Ms Sheffield were properly made. Having considered the content of the documented assessments and the evidence given about them by the relevant witnesses, I am satisfied the respondents failed to give proper consideration to the appellant’s human rights on those occasions and their conduct contravened s 58(1)(b) of the HRA. That being so, it is not necessary to further consider the appellant’s Browne v Dunn argument concerning the Tribunal’s approach to the evidence of those witnesses.
However, that is not the end of the matter. The relevance and substance of the further assessment undertaken by Mr Connellan remains to be considered.
On the point of relevance, I reject the appellant’s submission that Mr Connellan’s assessment was not relevant, as it was conducted post-complaint. The appellant made no submission to the Tribunal, either orally or in writing, that Mr Connellan’s assessment was irrelevant or unable to be considered by the Tribunal. On the contrary, it formed part of his own case.
The original complaint referral lodged with QCAT by the QHRC noted, “Any alleged breach of human rights may be considered by the tribunal pursuant to s 59 of the HR Act.” Whilst that was perhaps simply an acknowledgment that a human rights complaint was “piggybacked” on the discrimination complaint, the appellant later went on to detail the extent of his human rights complaint, which clearly extended to the assessment undertaken by Mr Connellan.
It is to be recalled that in his Statement of Contentions, the appellant identified the following relevant decisions that were the subject of his human rights complaint:
“20A. The First and Second Respondents engaged in the following acts and/or made the following decisions:
(a)the First and Second Respondents decided to, and did, require the Complainant to be accommodated in a shared cell from about 12 July 2020 until
19 March28 September 2021; and(b)the First and Second Respondents assessed the Complainant as being suitable for shared cell accommodation and/or ineligible for inclusion on the DNDU list on various dates from 1 January 2020 to present including but not limited to: 17 July 2020, 6 October 2020, 27 October 2020, 24 December 2020, 14 January 2021, 6 May 2022 and 27 July 2022.
21.By reason of the
conductacts/decisions outlined in paragraph 20A above, the Respondents:(a)failed to act or make decisions in a way that was compatible with the Complainant’s human rights (in breach of s 58(1)(a) of the HRA; and/or
(b)failed to give proper consideration to the Complainant’s human rights in making decisions (in breach of s 58(1)(b) of the HRA).”
It is therefore apparent that it was the appellant’s case before the Tribunal that the respondents had contravened s 58(1)(b) of the HRA when carrying out each of the specified DNDU List assessments, which included the 27 July 2022 assessment undertaken by Mr Connellan. The appellant reiterated the relevant date span of the subject assessments, including the 27 July 2022 assessment, in his subsequent written opening and closing submissions.
For their part, amongst other things contained in their written closing submissions, the respondents relied upon the assessment undertaken by Mr Connellan in answer to this aspect of the appellant’s human rights complaint.
That being so, it seems to me that determination of the present ground ultimately turns upon consideration of the adequacy of Mr Connellan’s assessment and his evidence on the issue.
Before turning to the evidence, I will address the issue about what is required for a public entity to give “proper consideration” to a person’s human rights.
The use of the adjective “proper” in s 58(1)(b) requires a standard of consideration higher than that generally applicable at common law for taking into account relevant considerations.[86] It is an exercise that must be approached in a common sense and practical manner.[87] As s 58(5) of the HRA makes plain, it includes, but is not limited to, identifying the relevant human rights that may be affected by the decision in question and considering whether the decision would be compatible with human rights. It involves understanding, in general terms, which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. It will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person, and that countervailing interests or obligations were identified.[88] Compliance with s 58(1)(b) of the HRA need not involve a sophisticated legal exercise.[89]
[86]Johnston v Carroll (Commissioner of Queensland Police Service) & Anor [2024] QSC 2; 329 IR 365, [138], citing Thompson v Minogue, [91].
[87]Owen-D’Arcy v Chief Executive, Queensland Corrective Services (2021) 9 QR 250, [137] (Martin J).
[88]Ibid, citing and agreeing with the judgment of Emerton J in Castles at [185]-[186].
[89]Johnston, [77], citing Thompson v Minogue, [87].
With those principles in mind, I now turn to the evidence of Mr Connellan’s assessment.
Mr Connellan provided an affidavit in which he deposed to the following matters. He was a senior psychologist employed by QCS at the WCC. He was familiar with the process of cell allocation and the DNDU List. When a request to be placed on the DNDU List was made by a prisoner, it was usual practice for a senior psychologist, such as himself, to allocate the assessment to be performed by a counsellor or a provisional psychologist. Where he conducted the assessments, it was his usual practice to review collateral material, including case notes and other records held on IOMS (QCS’s “Integrated Offender Management System”); to interview the prisoner; to assess the prisoner against the relevant criteria, which he understood came from the Cell Allocation COPD; to submit his assessment document to Ms Sheffield, another senior psychologist, for her review and discussion; and to then inform the prisoner of the outcome of the assessment.
Mr Connellan further stated on 19 July 2022, he conducted a DNDU List assessment on the appellant, which included an interview with the appellant and a review of IOMS information and a pre-sentence report of Dr Palk, dated 8 October 2018, that had been provided by the appellant’s legal representatives to Crown Law, who acted for the respondents, after the appellant’s complaint had been referred to QCAT. A covering email from the appellant’s legal representatives advised that they had only recently received a copy of the report from the lawyers who acted for the appellant in his criminal proceedings. Amongst other things, in his report, Dr Palk summarised the appellant’s background and upbringing and the history and origins of his mental health issues and expressed his opinions that the appellant suffered from PTSD and a borderline personality disorder.
Mr Connellan prepared a case note summary of his interview with the appellant and documented his assessment of the appellant’s request for inclusion on the DNDU List. He concluded that the appellant did not meet the criteria for inclusion. He produced a copy of his DNDU List assessment, which contained the following:
“Request for Do Not Double Up assessment: an email from Crown Law legal representative (date 14 July 2022) was forwarded to the author through Wolston CC management, requesting an updated assessment be conducted to determine shared cell suitability for prisoner Mizner in light of newly obtained file material.
I recognise that this decision may impact Mr Mizner’s recognised human rights under the Human Rights Act 2019, including the right to recognition and equality before the law, protection from torture and cruel, inhuman or degrading treatment, right to privacy and reputation, right to liberty and security of person, and humane treatment when deprived of liberty. I considered whether any other rights could be impacted by this decision but determined that no other rights were relevant.
A decision about whether Mr Mizner is placed on the ‘Do Not Double Up List’ will affect accommodation decisions made about Mr Mizner while in custody and inclusion on the list affords him a certainty and right that other non-qualifying prisoners are not afforded, in the sense that decision makers would be prevented from placing Mr Mizner with other prisoners (at least until a decision is made to remove him from the list).
A decision to not place Mr Mizner on the list could, or could be seen to, limit the above-mentioned human rights especially where Mr Mizner’s circumstances and situation do in fact warrant inclusion on the list, or are such that QCS is obliged to afford him and/or other prisoner’s extra protection (which should be afforded to any prisoner who qualifies for placement on the list) through Mr Mizner’s placement on the list.
When making my decision I must have regard to the section 13 factors of the Human Rights Act 2019, including:
· the nature of the human right:
The human rights of relevance centre on the need to respect Mr Mizner’s dignity and provide for the humane containment, supervision, and rehabilitation of prisoners in QCS custody. This is in line with section 18 of the Corrective Services Act 2006 which states that ‘whenever practicable, each prisoner in a corrective services facility must be provided with his or her own room’.
However, the Human Rights Act 2019 also recognises that human rights can be subject to limitations that are demonstrably justified.
· the purpose of limiting human rights:
The purpose of consideration about placement on the do not double up list is to safely and appropriately allocate all prisoners to the most suitable accommodation within a corrective services facility, which must include regard for the safe custody and welfare of all prisoners, and the security and management of all corrective services facilities. The do not double up list is created to ensure, amongst other things, that high needs prisoners who require a single cell for medical purposes, or prisoners who pose the highest risk to themselves or those around them, are guaranteed placement in a single cell to account for the safety and security of all prisoners and the centre. Only the highest-risk or the highest needs prisoners are placed on the do not double up list given the limited availability of cells at the centre, and if not placed on the list, a prisoner can either be placed in a single cell or a shared cell, as required, due to operational constraints or prisoner population stressors.
The appropriate allocation of cells and the placement of prisoners on the do not double up list (which means they cannot share a cell in any circumstance) must be considered in the context of Wolston Correctional Centre currently operating at over 100% built cell capacity which means that every prisoner cannot be guaranteed their own cell, and that prisoners will be required to share cells to account for the safe custody and welfare of all prisoners, and for the security and management of the centre.
· the relationship between the limitation and the purpose:
Limiting Mr Mizner’s human rights by not placing him on the do not double up list does not mean he must automatically be required to share a cell; it instead means that he has been assessed as being able to be safely accommodated in either a single or shared cell as required by Wolston Correctional Centre to account for operational needs, and for the safety and security of all prisoners and the centre.
Further, before Mr Mizner is required to share a call in the future, a further assessment of his human rights must occur, along with an assessment of the suitability of him sharing a cell with the specific prisoner contemplated.
· whether there are any less restrictive and reasonably available ways to achieve the purpose:
If each prisoner who requests a single cell and does not otherwise meet the criteria to be placed on the do not double up list is granted that request, then a significant number of prisoners will not be able to be placed into cells at all due to capacity issues and the number of built cells at the centre. These prisoners will need to be housed in hallways and in other common areas like kitchens or other shared spaces that are not designed as sleeping quarters. This will pose safety and security concerns, and it is arguable that housing prisoners in these locations is less humane and is more limiting to those prisoners’ human rights than the decision to not place Mr Mizner on the do not double up list (where he could still be placed in either a single or shared cell as required).
Given the capacity issues within the current infrastructure, there are no other reasonably available ways to ensure that prisoners are safely accommodated at Wolston Correctional Centre.
By not placing Mr Mizner on the do not double up list, this helps to achieve the purpose of ensuring that only the highest needs and the highest risks prisoners are guaranteed a single cell while other prisoners who can share cells as required, do, which contributes to the safety of all prisoners, and the safety and security of the centre overall.
Collateral:
A pre-sentence psychological report was conducted by Dr Gavan Palk. This report presented with a focus on prisoner Mizner’s offending and associated risk of recidivism, though provided additional information with respect to mental health diagnoses and historical trauma.
To summarise, the report makes the following observations: prisoner Mizner meets the criteria for Borderline Personality Disorder, has a self-reported diagnosis [sic. of] Post-Traumatic Stress Disorder, has an acquired Traumatic Brain Injury, has a history of childhood sexual and violent abuse. It should be noted that while such diagnoses and background factors may predispose the prisoner to an increased subjective level of distress when exposed to various stressors, they do not qualify the prisoner for placement on the DNDU list.
It is noted within this report (paragraph 12.10) that while prisoner Mizner has previously engaged in assaultive behaviour in his adolescence, and the nature of his offending behaviour was inherently violent and forceful, that he is ‘more likely to be submissive and introverted by nature’. Further, the report notes prisoner Mizner would rather avoid conflicts and aggression. Within an interview with the author, the prisoner elaborated further to state he has made a concerted effort to reduce any potential risk to others that may stem from his trauma background. However, he made statements to the effect that if he felt his safety were threatened, this may increase his risk of harm to others.
Prisoner Mizner is noted to also report physical injuries associated with an historical accident, including injuries to his foot and leg, and occasional reliance on a walking stick. Difficulties associated with these injuries do not qualify the prisoner for placement on the DNDU, as this can be mitigated by ensuring the prisoner’s placement on a lower bunk. Within an interview with the author, the prisoner did not present with limitations in movement.
Prisoner Mizner has a history of suicide/self-harm behaviour in the community and in custody. Available collateral indicates the prisoner had previously employed cutting behaviour as a form of emotional management when in the community. The prisoner has one self-harm episode listed on the Integrated Offender Management System (IOMS), dating between 3 February and 2 March 2017. Available information indicates the prisoner had attempted suicide by self-asphyxiation in the context of being assaulted and taunted by other prisoners and consequently feeling unsafe. He disclosed a previous suicide attempt when incarcerated in a Thai prison involving overdose on prescription medication. A review of case notes indicated prisoner Mizner experiences baseline fleeting suicidal ideation with content involving hanging should his thoughts become too distressing. The prisoner has consistently denied any intent to act upon these thoughts and is able to highlight various protective factors that serve to manage his risk. He has adamantly denied S/DSH ideation, plan or intent when interviewed, outside of acknowledging baseline ideation. He has consistently reported an intention to seek assistance from staff in an effort to avoid engaging in S/DSH behaviour. He has additionally reported a willingness to work with offender development to improve his ability to manage this risk.
Prisoner Mizner discussed his primary motivation for seeking placement on the DNDU list is to assist with emotional regulation and maintain a sense of control over his environment; specifically, to avoid potential triggers for his distress. He outlined these to include interpersonal disputes, disruptions to routine, lack of access to protective activities, sudden noise and light, and being in close proximity to others.
Conclusion:
In light of the above information, prisoner Mizner does NOT meet the criteria for placement on the DNDU list and as such he does not present as needing or requiring to be guaranteed a single cell for the duration of his sentence. He is therefore suitable for accommodation in a shared cell arrangement. This does not mean the prisoner cannot be accommodated in a single cell if operationally viable; rather, the result of the assessment solely determines that he does not require placement on the Do Not Double Up list. His accommodation needs can be managed effectively at the custodial level.
The needs and risks of other prisoners from Mr Mizner, that could be affected by a decision to not place Mr Mizner on the do not double up list, also do not warrant his placement on the do not double up list.
I have further considered the human rights of other prisoners in the context of the decision and consider that the human rights of those high needs prisoners who require a single cell for medical purposes, or prisoners who pose the highest risk to themselves or those around the [sic. them] (as a single cell is required in these circumstances to account for the safety and security of all prisoners and the centre) is in fact supported by my decision to not place Mr Mizner on the do not double up list.
While this decision will impact on his human rights, I am satisfied this is justified after having regards to the safe custody and welfare of all prisoners, and the security and management of all corrective services facilities.
Given the above information, if there is a change to the prisoner’s accommodation (e.g. being placed in a ‘shared cell’), it is recommended psychological services staff be contacted to assess the prisoner’s mental state with particular attention to any increase in his risk of S/DSH behaviour. Psychological services staff can further assist in the identification of a suitable cell mate and provide psychological support through the transition to shared cell accommodation.”
When cross-examined by counsel for the appellant at the hearing before the Tribunal, Mr Connellan agreed that he had received human rights training through QCS after the HRA was implemented and recalled that he would have completed a suite of online training modules. His evidence in that respect was supported by other evidence given by the second respondent to the effect that after the HRA was introduced training was rolled out across the state. Mr Connellan further agreed that the DNDU List focused on risk of harm to self or others rather than ongoing detrimental mental health behaviours. Nevertheless, he said he was not constrained by the DNDU List assessment criteria in providing recommendations for the management of prisoners with mental health conditions.
As to how he came to undertake the further DNDU List assessment, Mr Connellan confirmed that he had been requested by Chief Superintendent Joel Smith (the second respondent) to undertake the assessment because he had received the report of Dr Palk. He agreed he had undertaken his usual assessment process but was probably a bit more meticulous on this occasion, making sure that he went through the entirety of everything available to him and ensuring that as much information as possible was captured within his assessment. He agreed with the suggestion put to him that his documented assessment in relation to human rights was “very thorough” and said it was more detailed than usual. He further said the Chief Superintendent had given him some guidance in relation to the human rights assessment to be undertaken. He agreed that it was unusual to receive that level of guidance from the Chief Superintendent in relation to a DNDU List assessment.
When asked about his assessment of the appellant’s symptoms, Mr Connellan agreed that the appellant reported that he was suffering increased levels of subjective stress but said that was not what he observed. His recollection was that the appellant had told him that if he was to be placed in a shared cell with another prisoner that his level of distress would “skyrocket” but said at that particular time in the interview the appellant did not report a significant elevation of distress. He accepted that the level of distress of any prisoner may change if they were subjected to a shared cell arrangement and said that was so regardless of any mental health diagnosis. He accepted that a person with a mental health diagnosis would generally have their symptoms exacerbated by sharing a cell but was unable to say specifically whether that would occur for prisoners with diagnoses of PTSD, complex PTSD, borderline personality disorder or autism. He said that it would depend in each case on the individual, their triggers, their ability to regulate themselves and what coping strategies they had in place.
Having reviewed the relevant evidence, I note that the Tribunal’s observations that Mr Connellan was not seriously challenged on his evidence and that it was not put to him in cross-examination that he did not give proper consideration to the appellant’s human rights when undertaking his assessment is accurate.
In my opinion, the appellant has not demonstrated any error of fact or law in the Tribunal’s reasoning or conclusions. Given Mr Connellan’s documented assessment and his evidence about the tasking and guidance he received from Mr Smith and the detailed assessment he undertook, I am satisfied Mr Connellan gave proper consideration to the appellant’s human rights. He adequately identified and understood the appellant’s human rights that would be affected by the decision; he seriously turned his mind to the potential impacts of the decision upon the appellant’s human rights; and he properly took into account the relevant countervailing interests and obligations within the custodial environment. I do not accept the appellant’s argument that he simply paid “lip-service” to the appellant’s human rights and largely just documented justifications for the decision.
Ground 15 is not made out.
Conclusion and Orders
Given the nature of the matters raised by this appeal, including the general importance of the relationship between provisions of the ADA, the HRA and the CSA, I would grant the appellant leave to appeal as required. However, as the appellant has not established any of his grounds of appeal, the appeal must be dismissed.
During the hearing of the appeal the respondents sought non-publication orders in respect of certain criteria included in the WCC Local Criteria for DNDU List assessments. The Court was provided with a draft of the proposed orders, which was marked for identification “A”. Pursuant to directions made by the Court at the conclusion of the hearing, the respondents subsequently provided an affidavit and further submissions outlining the reasons for such orders. Having considered that material, I am satisfied it is appropriate to make the orders sought for the reasons identified, noting that the appellant did not oppose that course and that similar orders were made by the Tribunal.
Finally, as the respondents did not make any submissions that the appellant should pay their costs in the event that the appeal was dismissed, I will assume that they do not seek such an order. However, in the event that I am mistaken about that, orders should be made to allow the parties to provide written submissions on the question.
The orders I would make therefore are:
1.Leave to appeal be granted in respect of Grounds 7, 9, 11, 13 and 15.
2.The appeal is dismissed.
3.Unless the respondents seek a contrary order, there be no order as to costs.
4.In the event that the respondents do seek a contrary order on the question of costs:
a.Within 7 days of delivery of judgment, the respondents are to file and serve written submissions as to the order sought with respect to costs.
b.Within 7 days of receipt of the respondents’ submissions, the appellant is to file and serve written submissions as to the order sought with respect to costs.
c.The Court will decide the appropriate order to be made on the papers.
5.The Court makes non-publication orders in the terms of the draft proposed orders, which were marked for identification “A” at the hearing on 13 March 2025.
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