Mynott v Australian Capital Territory (Discrimination)
[2022] ACAT 65
•11 July 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MYNOTT v AUSTRALIAN CAPITAL TERRITORY (Discrimination) [2022] ACAT 65
DT 57/2021
Catchwords: DISCRIMINATION – whether applicant was subject to unfavourable treatment –application to strike-out pursuant to section 32 of the ACAT Act – Tribunal satisfied that the applicant has no arguable case – whether application is frivolous or vexatious – application dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 32
Corrections Management Act 2007 ss 7, 9
Discrimination Act 1991 ss 4AA, 4A, 7, 8, 20Human Rights Act 2004
Human Rights Commission Act 2005 ss 53A, 53CA, 53E
Cases cited:Cheluvappa v University of Canberra [2018] ACAT 108
Cooley v Australian National University [2007] ACTDT 2
Edgley v Federal Capital Press of Australia Pty Ltd (2001) 108 FCR 1
Farah v Sandilands [2021] ACAT 92
Hagan v Trustees of Toowoomba Sports Ground Trust (2001) 105 FCR 56
Hinton v Alpha Westmead Private Hospital Pty Ltd (2016) 242 FCR 1
Hoyle v Director-General Corrective Services [2019] ACTSC 226
Hudson v The Australian Capital Territory [2021] ACAT 19
Mewett v University of Canberra [2018] ACAT 61
Neelander Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84
P v Registrar of Firearms [2018] ACAT 74
State Electricity Commission of Victoria v Andrew Rabel and the President & Members of the Equal Opportunity Board [1998] 2 VR 102
State Electricity Commission of Victoria v Rabel [1996] VSC 78
Watts v Australian Postal Corporation (2014) 222 FCR 220
Tribunal:Member W Hawkins
Date of Orders: 11 July 2022
Date of Reasons for Decision: 11 July 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 57/2021
BETWEEN:
KRISTIAN MYNOTT
Applicant
AND:
AUSTRALIAN CAPITAL TERRITORY
Respondent
TRIBUNAL:Member W Hawkins
DATE:11 July 2022
ORDER
The Tribunal orders that:
Upon being satisfied that the application is frivolous or vexatious and lacking in substance it is dismissed pursuant to section 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008.
………………………………..
Member W Hawkins
REASONS FOR DECISION
The reasons below explain why the Tribunal has made the orders set out above. In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refer to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the current member.
As the tribunal stated in Mewett v University of Canberra:
The Tribunal regards complaints referred by the Commission under section 53A as applications made to the Tribunal under section 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). The complainant becomes the applicant for the purposes of the proceedings before the tribunal. The person or entity complained about is the respondent. This is consistent with section 53C of the HRC Act which provides that the parties to tribunal proceedings on a complaint referred to the tribunal, are the complainant and the person complained about.[1]
[1] [2018] ACAT 61 at [11]
This decision concerns a complaint filed by Mr Kristian Mynott (the applicant) for unlawful discrimination against the Australian Capital Territory (the respondent or ACT) upon the ground of disability in the provision of goods, services or facilities’ under section 20 of the Discrimination Act 1991 (Discrimination Act) with the ACT Human Rights Commission (the Commission). The applicant was a detainee at the Alexander Maconochie Centre (AMC) and the complaint relates to decisions and actions taken by the respondent in relation to that detainment. As will be discussed below, the applicant was eligible for and was released on parole on 23 December 2021.
The Commission arranged a conciliation between the applicant and the respondent, but agreement could not be reached. After the unsuccessful conciliation, the Commission referred the complaint to the ACAT pursuant to section 53A of the Human Rights Commission Act 2005 (HRC Act).
The ACAT listed the application for a directions hearing on 25 October 2021. At the directions hearing the usual directions were made including the filing and serving of documents and other material that the parties relied upon including witness statements and the application was listed for a further directions hearing on 14 January 2022. The further directions hearing were vacated following the filing of the interim application referred to below.
By way of an interim application dated 20 December 2021, the respondent has sought to dismiss (‘strike out’) the claim pursuant to section 32 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), on the basis of it is either frivolous and vexatious or lacking in substance. The main issue in the context of the strike out is whether the complaint as made by the applicant can be characterised as unfavourable treatment for the purposes of the Discrimination Act and to the extent that a claim for indirect discrimination was pressed, that the applicant had not demonstrated that a condition or requirement was imposed by the respondent nor provided any evidence that any alleged unfavourable treatment, or condition or requirement was because of his disability or sexuality; and finally that the applicant had not adduced any evidence to show that he had suffered any loss.[2] The applicant filed and served a response to the interim application dated 22 December 2021. The interim application was listed for hearing of 11 March 2022.
[2] Respondent’s response and submissions in support of application for interim orders dated 20 December 2021 at [65]
At the hearing on 11 March 2022, the applicant did not appear. The hearing proceeded in the applicant’s absence. The Tribunal noted a document included in the applicant’s document index dated 10 November 2021 titled ‘Pre-Release Report’ dated 7 October 2021 which recommended “release to parole on 23 December 2021”.[3] The relevance of same will become apparent as the application is discussed below. A number of documents were tendered by the respondent. No witnesses were called to give evidence. The statements of Mr Jason Dunkley and of Ms Narelle Pamplin both dated 20 December 2021 were tendered on behalf of the respondent. To assist the Tribunal, the respondent also tendered the applicant’s complaint to the Commission dated 6 April 2021 and the applicant’s summary of argument dated 22 December 2021.
Background
[3] Applicant’s document index dated 10 November 2021, document 13 ‘Pre-Release Report’ & October 2021
The applicant pleaded guilty to two counts of engaging in sexual intercourse without consent in the ACT Supreme Court. He was sentenced to a total sentence of three years and four months imprisonment. He was sentenced to a non-parole period of 16 months imprisonment from 24 August 2020 to 23 December 2021 at which stage he became eligible for parole.[4]
[4] R v Mynott (No 2) [2020] ACTSC 232 at [74]-[77]
It is the usual practice at the AMC that within the first months of detention, eligible detainees are assessed to identify what programs are suitable and available to them, with a Sentence Management Plan (SMP) created which is based upon their characteristics and background.
On 2 November 2020, Mr Jackson Dunkley, the applicant’s Sentence Management Officer (SMO) met with the applicant to draft the SMP. Based on information confirmed with the applicant, the applicant had a diagnosis of depression, anxiety, and post-traumatic stress disorder (PTSD).[5]
[5] Sentence Management Plan (Document 5 in Applicant’s Document Index)
A finding of the SMP supported the applicant’s engagement with the Sexual Offender Treatment Program (SOTP). Although not compulsory, participation and completion of the SOTP is one of the things that might be considered by the Sentence Administration Board (SAB) when granting or refusing parole.[6] The applicant was assessed as being ‘above average’ risk of sexual reoffending.[7]
[6] Transcript of proceedings 11 March 2022 page 6
[7] Sentence Management Plan page 4
The SOTP is mostly delivered in a group format but can be delivered on a ‘one to one’ basis. It is not delivered continuously but has particular commencement and completion dates which might be after an inmate becomes eligible for or is released on parole, however, it can be completed in the community after release.[8]
[8] Transcript of proceedings 11 March 2022 pages 7-8
On 15 January 2021, a Sex Offender Treatment Assessment Report (SOTPR) was completed by Mr Mike Peoples, the Programs Officer, Corrections Programs Unit. The SOTPR determined that the applicant was suitable for the Pathfinder (High) Treatment Program.[9]
[9] Sex Offender Treatment Assessment Report (document 6 in applicant’s document index)
On 11 February 2021 by email the applicant complained to the AMC Programs Manager that he had been at the AMC for six months and he had only just been accepted into the SOTP, and that the next program would not commence until the mid-year and this would affect his application for parole.[10]
[10] Email from the applicant to complaints AMC 11 February 2021 (document 8 in Applicant’s Document Index)
On 22 February 2021 the applicant emailed Mr Dunkley and complained that his previous treatment whilst in the community was not recognised by the AMC. Later that day Mr Dunkley replied by email to the applicant that parole is a privilege not a right, and that the goal was to assist the applicant return to the community as close as possible to the earliest release date; that the work that the applicant had completed in the community before the AMC was acknowledged; and that the SMP was based upon material included in the applicant’s file including previous reports and sentencing remarks and their discussions. Mr Dunkley also advised the applicant that he was in the process of arranging a time for himself and the applicant to meet with the Team Leader of Programs and discuss the applicant’s SMP.[11]
[11]22 February 2021 email exchange between applicant and Mr Dunkley (document 8 in the Applicant’s Document Index)
On 17 March 2021 the applicant emailed Mr Dunkley stating that he did not believe that he could participate in a group based SOTP given his PTSD, past complex trauma, hyperactivity disorder, anxiety and depression.[12]
[12] Email from the applicant to Mr Dunkley 17 March 2021 (document 10 in the applicant’s document index)
On 19 March 2021 Mr Dunkley replied to the applicant and advised that the applicant’s past health and mental health, criminal history and offending charges were considered as part of the applicant’s suitability for inclusion in the SOTP. That participation in the program was voluntary and that the applicant could choose not to engage and that non-engaging would not affect the applicant’s ability to apply for parole. Mr Dunkley reminded the applicant that if the applicant currently or ever felt the need for health or mental health support, the applicant could engage with the custodial officers and/or by direct engagement with AMC Health Services.[13]
[13] Email from Mr Dunkley to the applicant 19 March 2021 (document 10 in the Applicant’s Document Index)
On 24 March 2021 the applicant wrote a letter of complaint to AMC Complaints concerning the way that he had been treated and the way his personal situation has been handled by his SMO.[14]
[14] Email from the applicant to Complaints AMC dated 24 March 2021 (unnumbered document in the applicant’s document index)
On 24 March 2021 Ms Narelle Pamplin the Assistant Commissioner, Offender Reintegration, received the applicant’s complaint referred to in the previous paragraph. The applicant also submitted complaints to the ACT Ombudsman and to the Official Visitor. Ms Pamplin then arranged a meeting for 1 April 2021 to discuss a coordinated approach to the applicant’s concerns.[15] At the meeting it was determined that:
(a)the applicant would have access to the SOTP treatment on a one-to-one basis provided by registered psychologist Mr Peter Marshall;
(b)the applicant had supplied sufficient evidence through his complaint that warranted consideration of exclusion from the usual group treatment pathway;
(c)the applicant had provided new and compelling evidence that indicated that he would be best treated in an individual setting.[16]
[15] Statement Narelle Pamplin dated 20 December 2021 Exhibit R2
[16] Statement Narelle Pamplin dated 20 December 2021 Exhibit R2 at [14]
On 16 April 2021 Ms Tamara Ryan emailed the applicant and advised that a comprehensive review had been undertaken and that treatment could be on a one-to-one basis and that this would commence as soon as practicable and could also continue in the community should he be released on parole and that the SMP would be amended to reflect the new approach.[17]
Complaint made by the applicant
[17] Statement Narelle Pamplin dated 20 December 2021, attachment ‘B’
The applicant lodged a complaint with the Commission by letter titled ‘letter of complaint’ (the applicant’s letter or letter) attached to an email dated 6 April 2021. No complaint form was lodged. For the purpose of this proceeding, the respondent has taken the applicant’s case to be that outlined in the applicant’s Summary of Argument lodged with the tribunal on 10 November 2021.[18]
[18] Respondent’s response and submissions in support of application for interim orders dated 20 December 2021 [17]
In the letter the applicant claimed that he felt that he had to do the SOTP in a group rather than a one to one basis and that that group had untrained professionals with no training in trauma and complex trauma and that he had to do the SOTP in order to be granted parole. He advised that he was not comfortable in doing the group course as it would trigger his PTSD and complex trauma whereas participation in the one- to- one with a trained counsellor or psychologist would not. In his summary of argument, the applicant alleged that the assessment was incompetently done and directly discriminatory because of his disabilities and sexuality. In particular the use of the Static-99R was directly discriminatory of him as a homosexual.[19]
[19] Applicant’s summary of argument dated 6 November 2021 at [7]-[8]
In short, the Tribunal understood the applicant’s allegation to be:
(a)He was discriminated against on the grounds of disability and sexuality.[20]
[20] Discrimination Act 1991 section 7(e) and (w)
(b)He was discriminated against in an area of provision of goods, services, or facilities.[21]
(c)The discrimination occurred as a result of an act or omission of the respondent, or those of its employees and agents for which it is or may be vicariously liable; and
(d)Disadvantage or loss suffered by him as a result of the respondent’s actions was that:
(i) the applicant was not provided with ‘adequate treatment and care’ for his mental health whilst incarcerated;[22]
(ii) the applicant’s assessment for the SOTP was ‘incompletely done, and was directly discriminatory towards the applicant’s disabilities and sexuality;[23] and
(iii) the applicant was forced to undertake the SOTP against his will by Mr Dunkley, his then SMO.[24]
The law
[21] Discrimination Act 1991 section 20
[22] Applicant’s summary of argument dated 6 November 2021 at [6]
[23] Applicant’s summary of argument dated 6 November 2021 at [7]
[24] Applicant’s summary of argument dated 6 November 2021 at [8]
The Discrimination Act does not prohibit all acts of unfavourable or discriminatory treatment. Rather, it makes unlawful certain acts that occur in areas of public life prescribed in Part 3 of the Discrimination Act because a person has a protected attribute as defined in section 7 of the Discrimination Act.[25] Further, section 8 of the Discrimination Act establishes two forms of discriminatory conduct, namely direct discrimination and indirect discrimination.[26]
[25] Hudson v The Australian Capital Territory [2021] ACAT 19 at [3]
[26] Discrimination Act 1991 section 8(1)(a) and 8(1)(b)
For direct discrimination, a complainant must show that the true or real reason for the unfavourable treatment was the protected attribute. For indirect discrimination, a complainant must identify the condition or requirement in question, the nature and extent of any compulsion and the nature and extent of any disadvantage that will result.[27]
[27] Respondent’s response and submissions in support of application for interim orders dated 20 December 2021 at [21]
The complainant bears the onus of establishing that unlawful discrimination has occurred. There is a rebuttable presumption that discrimination has occurred where a complainant establishes that the treatment was unfavourable and the complainant presents evidence that enables the Tribunal to decide in the absence of any other explanation that the treatment was because of the protected attribute.[28]
Legislative framework
[28] Human Rights Commission Act 2005 section 53CA(2)(a)
Under the Discrimination Act, ‘direct discrimination’ may occur where a person treats, or proposes to treat, another person unfavourably because the other person has one or more protected attributes[29] and ‘indirect discrimination’ may occur where a person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has one or more protected attributes.[30]
[29] Discrimination Act 1991 section 8(1)(a)
[30] Discrimination Act 1991 section 8(1)(b)
Thus, for direct discrimination, a complainant must show that the true basis or real reason for the unfavourable treatment was the protected attribute, whereas for indirect discrimination they must identify the condition or requirement in question, the nature and extent of any compulsion and the nature and extent of any disadvantage that will result.
Section 4AA of the Discrimination Act provides that the Act must be interpreted in a way that is beneficial to a person with a protected attribute to the extent that it is possible to do so consistently with the objects of the Act and the Human Rights Act2004.
Section 4A(2) of the Discrimination Act provides that in the act, doing an act includes failing to do the act.
It is accepted that not every instance of unfavourable treatment constitutes unlawful discrimination. The unfavourable treatment must occur in an area of public life and the conduct which may constitute ‘treatment’ in that area of public life will be determined by its context.
The complainant bears the onus of establishing that unlawful discrimination has occurred. As stated above, there is a rebuttable presumption that discrimination has occurred where a complainant establishes that the treatment was unfavourable and the complainant presents evidence that enables the Tribunal to decide in the absence of any other explanation, that the treatment was because of the protected attribute.[31]
[31] Human Rights Commission Act 2005 section 53CA(2)(a)
Section 32 of the ACAT Act empowers the tribunal to refuse to hear (strike out) or to dismiss without further argument (summarily dismiss) an application in whole or in part. Section 32 provides:
Dismissing or striking out applications
(1)This section applies if the tribunal considers that an application, or part of an application is––
(a) frivolous or vexatious; or
(b) lacking in substance; or
(c) otherwise an abuse of process; or
(d) made by a person who has been dealt with by a court or tribunal in Australia as frivolous or vexatious.
(2)The tribunal may, by order, do 1 or more of the following:
(a) refuse to hear the application or part of the application;
(b) dismiss the application or part of the application;
(c) direct that the person who made the application not make a subsequent application to the tribunal of the kind stated in the direction—
(i)within a stated period of time; or
(ii)without the leave of the tribunal.
(3)The tribunal may make an order under subsection (2) on its own initiative or on application by a party.
(4)The tribunal may vary or revoke a direction given under subsection (2) (c)—
(a) on its own initiative; or
(b) on application by the person who is the subject of the order.
NoteThe tribunal must observe natural justice and procedural fairness (see s 7).
The respondent’s written and oral submissions
The respondent submitted that the Tribunal is required to reach a conclusion with a comfortable degree of satisfaction based on sufficient robust evidence rather than inexact proof, indefinite testimony or indirect reference.[32]
[32] Respondent’s response and submissions in support of application for interim orders dated 20 December 2021 at [25]
Thus, for the applicant to succeed in proving his complaint of discrimination, he must show that he has been discriminated against in an area of public life because h has f at least one protected attribute.[33]
[33] Respondent’s response and submissions in support of application for interim orders dated 20 December 2021 at [26]
To establish direct discrimination occurred the respondent said that the applicant was required to show that he was not provided with ‘adequate treatment and care’ for his mental health; that the respondent subjected the applicant to unfavourable treatment by offering him the SOTP program in a group setting; that the applicant was forced to undertake the sex offender program against his will; and that the unfavourable treatment was because of the applicant’s disability and sexuality. To establish indirect discrimination occurred, the respondent said that the applicant the respondent imposed a condition or requirement on the applicant to attend the SOTP in a group setting if he wanted to engage with his plan; and that this had the effect of disadvantaging him because of his disability and sexuality.[34]
[34] Respondent’s response and submissions in support of application for interim orders dated 20 December 2021 at [27] and [28]
The respondent submitted that the applicant’s allegations as set out above could not amount to indirect discrimination as the applicant would not be able to show that he was subjected to ‘unfavourable treatment’.
The respondent said the Discrimination Act does not include a definition of ‘unfavourable treatment’ and therefore it carries its ordinary meaning, being acts or behaviours that are directed towards a complainant and are adverse to the complainant or their interests.[35] Implicit then is the concept of disadvantage and this introduces the use of comparators, and although detriment can cover any disadvantage, it has to be real and not illusory and rise to a sufficient level that it is not a mere trifle.[36]
[35] Respondent’s response and submissions in support of application for interim orders dated 20 December 2021 at [27] and [28] referring to Edgley v Federal Capital Press of Australia Pty Ltd (2001) 108 FCR 1, 17 at [54]-[57]
[36] See Watts v Australian Postal Corporation (2014) 222 FCR 220, 277 at [242] and Hinton v Alpha Westmead Private Hospital Pty Ltd (2016) 242 FCR 1, 9 at [20]
The respondent argued that they rebutted the presumption that treatment received by the applicant was ‘unfavourable treatment’ because the applicant was not treated unfavourably at the AMC as he received treatment suitable to his needs that was available at that time; and that he was notified that the SOTP would be provided in a group setting, as that was the predetermined or usual setting of the program; the position that the SOTP was to be provided in a group setting was not because the applicant had been diagnosed with mental health conditions or because of his sexuality; and that the applicant was not forced to undertake the SOTP against his will as it was a voluntary program for all inmates.[37]
[37] Respondent’s response and submissions in support of application for interim orders dated 20 December 2021 at [34]
The respondent submitted that the applicant was not disadvantaged by the conditions of the SOTP to be conducted in a group setting because more often than not the SOTP is designed to be held in a group environment and is more effective than on a one-to-one basis; when the applicant requested the SOTP be provided to him on a one-to-one basis this was approved and he did not have to provide further evidence of his condition or to be further assessed; and although the applicant did not identify in his ‘Summary of Argument’ whether his claim relates to direct or indirect discrimination, the fundamental issues raised by the applicant appear to have involved allegations of indirect discrimination by the respondent.[38]
[38] Respondent’s response and submissions in support of application for interim orders dated 20 December 2021 at [36]
In so far as the necessary conditions regarding indirect discrimination required by section 8 of the Discrimination Act, the respondent submitted that in determining this, the Tribunal must have consideration as to whether any condition imposed was reasonable in the circumstances having regard to the nature and extent of any disadvantage, the feasibility of overcoming or mitigating the disadvantage, and whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposed to impose the condition or requirement. The respondent argued that they had refuted that conducting the SOTP in a group setting disadvantaged the applicant because he never in fact participated in it in a group setting and moreover the respondent facilitated the applicant’s request for it to be conducted on a one to one basis shortly after the request by the applicant.
In relation to the need for the applicant to establish causation in indirect discrimination, the respondent relied upon Cooley v Australian National University[39] and submitted that the applicant had not provided any evidence as to why any protected attributes were engaged in the circumstances and that the applicant’s subjective view that the reasons for the alleged discriminatory treatment were his disability and his sexuality were not sufficient.
[39] Cooley v Australian National University [2007] ACTDT 2
The respondent said in relation to the alleged detriment or loss, that the applicant had not provided any information in support of any loss, nor that the conduct alleged has any connection with the alleged losses.
Strike out and summary dismissal
The onus is upon the respondent to establish to the Tribunal that it should exercise its power to dismiss the application.[40]
[40] Gindy & Chief Minister & ACT Government and Ors [2011] ACAT 67 at [23]
In relation to section 32 of the ACAT Act, the respondent made a number of submissions as to whether the application was ‘frivolous or vexatious’. The respondent said the correct approach for the Tribunal was that taken by the Victorian Court of Appeal in State Electricity Commission of Victoria v Rabel.[41] Further, the respondent said that it was appropriate on an application for strike out or summary dismissal, for the respondent to rely on the entirety of the submissions and evidence filed by the applicant, accepting the applicant’s case on that basis at its highest, accepting (in effect) any of the factual assertions made by the applicant. The respondent may adduce evidence to support the strike out application, but typically it is restricted to evidence which discloses there is no or no reasonable cause of action.[42]
[41] [1996] 1 VR 102; [1996] VSC 78
[42] Respondent’s response and submissions in support of application for interim orders dated 20 December 2021 at [51]- [55]
As to whether the application is ‘lacking in substance’, the respondent after examining a number of cases in other jurisdictions, submitted that the applicant has disclosed no prima facie case for unlawful discrimination and as a result his case is misconceived, without merit and foredoomed to fail. The respondent drew the Tribunal’s attention to the following: the allegations made by the applicant regarding his treatment and care at the AMC cannot be characterised as unfavourable treatment for the purposes of the Discrimination Act. If a claim for indirect discrimination is pressed, then the applicant has failed to demonstrate any alleged unfavourable treatment, or a condition or requirement was because of his disability or sexuality; that the applicant has not adduced evidence to show that he has suffered any loss, nor that the conduct alleged to constitute the unfavourable treatment, or condition or requirement has any connection with the alleged loss; and that the applicant relied on his own perceptions or assumptions alone without any corroborating objective evidence.[43]
The applicant’s written submissions
[43] Respondent’s response and submissions in support of application for interim orders dated 20 December 2021 at [65]
The applicant referred to his summary of argument dated 6 November 2021 and summarised or distilled his argument in his submissions dated 22 December 2021. The applicant did not always directly respond to the respondent’s submissions and as he did not attend the hearing of the application, he forwent the opportunity of making oral submissions that may have assisted the Tribunal.
In brief, the applicant submitted that the respondent’s application to strike out or dismiss his application should be dismissed and that his application be allowed to continue. The applicant argued that:
(a)The respondent’s submissions did not address the use of Static-99R form in his original assessment of his suitability when preparing his case management plan and that this caused direct discrimination.
(b)The Static-99R form at Question 10 asks,’ Any Male Victims’. The submitted that when answering as a male interviewee then requires a response scoring a point in the affirmative, and that the total of the applicant’s points caused his overall score to change from an average risk (1-3 points) to above average risk (4-5 points).
(c)Had the applicant’s offence been related to the use of female sex workers rather than male sex workers then he would not have scored the additional point and not be categorised as ‘above average risk’.
(d)In addition to the direct discrimination in relation to his sexuality, the use of the Static coding forms caused incorrect classification as “above average risk” of sexual reoffending. This incorrect classification led to “huge follow-on issues” such as the determination by the respondent that the applicant was suitable for the Pathfinder (High) treatment program.
(e)The Pathfinder High Treatment program runs for approximately 33 weeks at three times each week rather than the Moderate program which runs for approximately 26 weeks at two times each week and as a consequence there is a large difference in the therapeutic delivery between the two programs.
(f)The next Pathfinder High Treatment program did not commence until January or February 2022 and would not conclude until about August or September of the same year.
(g)Given the preceding time frame, had he not made a complaint he would likely not have been recommended for parole until completion of the program resulting in an additional 10 months or so in custody and this would be directly based upon discrimination on the grounds of his sexuality.
(h)All details of the applicant’s PTSD and mental health were provided at relevant times and prior to formation of the sentence management plan. As a consequence, the respondent had failed to recognise the applicant’s needs and had a predetermined course of action in mind.
(i)In the applicant’s one-on-one counselling, he raised the issue of Static-99R and alleged that the ‘issue’ was encountered with previous clients and that the applicant was informed that the person conducting the one-on-one regarded the applicant as low risk of sexual reoffending.
(j)The incorrect rating of “above average risk of reoffence” is maintained in documentation prepared for the Sentence Administration Board and as a consequence the discrimination is ongoing.
(k)The respondent has not conceded any discrimination, and the respondent’s actions has caused “significant emotional harm … significant loss of liberty … all due to their direct discrimination”.
Findings and consideration
The relevant test for striking out an application lodged under the HRC Act was set out by the tribunal in Cheluvappa v University of Canberra[44] (Cheluvappa). In that case, the tribunal referred to a decision of the Victorian Court of Appeal in State Electricity Commission of Victoria v Andrew Rabel and the President & Members of the Equal Opportunity Board[45] (Rabel), where that Court considered the approach to be taken in applications for summary dismissal in a discrimination matter. The tribunal in Cheluvappa stated;
[44] [2018] ACAT 108
[45] [1998] 2 VR 102
In Rabel, the Court of Appeal set out the principles for considering an application to strike out or dismiss a complaint at a preliminary stage of the proceedings in the context of a discrimination matter. These principles were summarised by the Victorian Civil and Administrative Tribunal (VCAT) in Jamieson Mary v Australian Worker’s Union and Anor (Jamieson)[46] as follows:
[46] [1999] VCAT 628
(1)Section 109 [of the Equal Opportunity Act 1995] permits an application to be made by the respondent at a preliminary stage; s75 [of the Victorian Civil and Administrative Tribunal Act 1998] permits an order to be made at any time including on the Tribunal's own initiative. The procedure to be adopted is in the Tribunal's discretion. The proceeding may be determined on the pleadings and submissions alone, or by allowing the parties to put forward further material, including affidavits and oral evidence.
(2)If in a proceeding a complainant indicates to the Tribunal that the whole of their case is contained in the material put before the Tribunal, the Tribunal is entitled to determine the matter by asking whether, on all the material before it, there is a question of real substance to go to a full hearing.
(3)However, if a complainant indicates that there is other evidence they can call to support their claim and the Tribunal does not permit that evidence to be called, the Tribunal cannot determine the matter on the basis that the complainant's material contains the whole of their case.
(4)A proceeding to dismiss or strike out a complaint is similar to an application to the Supreme Court in civil proceedings for summary dismissal. Both are designed to prevent abuses of process. However, it is a serious matter for the Tribunal, in an interlocutory proceeding which will generally not involve the hearing of oral evidence, to deprive a litigant of the chance to have their complaint heard in the ordinary course.
(5)In an application, the respondent bears the onus of showing that the complainant's case ought not be allowed to proceed. In a s75 hearing where the Tribunal proceeds on its own initiative the Tribunal must be satisfied on all the material before it that the complaint should not be allowed to proceed.
(6)For a dismissal or strike out to succeed, a respondent must show, or the Tribunal when proceeding on its own initiative must be satisfied, that the complainant's case is obviously hopeless and untenable or that it could on no reasonable view justify relief. The Tribunal's power to dismiss or strike out a complaint should however be exercised with caution and consistently with the objectives of the Act
(7)In dealing with a dismissal or strike out matter a clear distinction must be drawn between the complaint or claim itself and the evidence which is to be given in support of it. A complaint cannot be dismissed or struck out as lacking in substance merely because it does not in itself contain the evidence supporting the claims.
(8)A complaint can be dismissed or struck out if it is obviously unsustainable in law or in fact. This will include, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action, or where the respondent can show a defence sufficient to warrant the summary termination of the complaint.
(9)The Tribunal should not apply technical, artificial or mechanical rules in coming to a view about the case that a complainant wishes to advance.
Two additional comments should be made. First, if the material before the Tribunal shows that there is a dispute between the parties as to a fact in issue and the material does not assist the Tribunal to resolve the dispute, then it would be difficult for the Tribunal to be satisfied that the complaint is so lacking in substance that it should be dismissed or struck out.
Second, if the respondents have satisfied the Tribunal that the complaint or any part of it is frivolous, vexatious, misconceived or lacking in substance in respect of any element essential for the complainant to prove in order to substantiate the complaint at a full hearing, then the complaint or the relevant part of the complaint should be dismissed or struck out.[47]
[47] [2018] ACAT 108 at [39]
In considering whether to strike out the present application, the Tribunal must bear in mind that not all evidence may have been filed. If the strike out is successful, the applicant will be denied the opportunity to prove his allegations. The Tribunal may consider the strength of the applicant’s factual case, but the primary basis for this strike out application is that the claim cannot succeed. The Tribunal also had regard to the applicant’s limited resources and capacity to gain legal advice or do research whilst at the AMC, but this must be balanced against the applicant having been released on parole since 23 December 2021. The applicant is not legally trained and whilst he has set out his factual allegations, his legal arguments are those of a layperson working through a complicated area of law.[48]
Claims of direct and indirect discrimination
[48] See Hudson v The Australian Capital Territory [2021] ACAT 19 at [18]
The applicant claimed that the respondent directly discriminated against him as he was not provided with adequate treatment and care and that this included forcing him to undergo the sex offender program against his will; offering the SOTP in a group rather than individual setting and that the unfavorable treatment was because of his disability and sexuality. Included in the complaint of direct discrimination was the use of the Static-99R assessment tool for homosexuals and that this led to him being assessed as ‘above average risk’ rather than ‘average risk’. He also complained that the use of the the Static-99R assessment tool rather than the Static-99 directly discriminated against him as well.
The use of the assessment tool is used as part of the respondent’s process for preparing a case management plan. The preparation of a case management plan is something mandated by the Corrections Management Act 2007 and has to be understood in light of an objective, namely, “promoting the rehabilitation of offenders and their reintegration into society”[49] and the obligation of the respondent under the Act, “to promote, as far as possible, the detainee’s rehabilitation and reintegration into society”.[50]
[49] Corrections Management Act 2007 section 7(d)
[50] Corrections Management Act 2007 section 9(f)
Mossop J in a judicial review proceeding in the ACT Supreme Court,[51] examined in some detail case management plans and offender’s participation in the Adult Sex Offenders Program (ASOP) for eligibility for parole; use of the Static-99 assessment compared to use of the Static-99R; and whether a detainee is compelled to complete the ASOP as a precondition to release on parole. His Honour found that the plans and participation are consistent with the objectives of the Corrections Management Act 2007 and plans mandated,[52] but that there is no compulsion to participate[53] and that the Static-99 has clearly been used for some years, is periodically revised and that which assessment tool or version the respondent uses is a matter for them.[54]
[51] Hoyle v Director-General Corrective Services [2019] ACTSC 226
[52] Hoyle v Director-General Corrective Services [2019] ACTSC 226 at [35]
[53] Hoyle v Director-General Corrective Services [2019] ACTSC 226 at [58]
[54] Hoyle v Director-General Corrective Services [2019] ACTSC 226 at [31] – [36]
The Tribunal finds that the applicant was provided with adequate treatment and care for his mental health and that as participation in the sex offender program was voluntary, he was not forced to undertake the sex offender program against his will and that it therefore follows that as there was no unfavorable treatment because of his disability or sexuality. Therefore, it also follows that the applicant would not be able to establish that he has been directly discriminated against.
In the alternative, that applicant claimed that he has been indirectly discriminated against.
To establish that indirect discrimination has occurred, the applicant must show that the respondent imposed a condition or requirement that has, or was likely to have, the effect of disadvantaging him because he had one or more protected attributes, namely his disability and sexuality.[55]
[55] Discrimination Act 1991 section 8(3) and 20(c)
As the respondent has submitted, section 8(2) of the Discrimination Act requires that the applicant be subjected to unfavorable treatment, which necessitates an examination of the words, acts or omissions which were directed at the applicant, or the conditions on which he was dealt with, and a determination as to whether they operate unfavorably or constitute a disadvantage.[56]
[56] Respondent’s response and submissions in support of applicant for interim orders dated 20 December 2021 [39]
Determining what is ‘unfavorable treatment’ in the absence of a definition in the Discrimination Act has meant that the words carry their ordinary meaning, namely acts or behaviors that are directed towards a complainant and includes acts or omissions which result in some detriment, being loss, damage, or injury. The detriment must be real and not illusory, and its existence is to be determined objectively and not merely by the subjective perceptions of the applicant.[57]
[57] Cooley v Australian National University [2007] ACTDT 2 at [45]
The respondent submitted that the concept of ‘disadvantage’ does not require a comparison between the treatment of a person with a particular attribute and the treatment of a person without that attribute. All that is required is an examination of the treatment of the person or the conditions upon which the person is or is proposed to be dealt with. The examination of the treatment or condition may invite comparison when what is in issue is comparative treatment.[58]
[58] Respondent’s response and submissions in support of applicant for interim orders dated 20 December 2021 at 32]
The word or concept of ‘detriment’ has been found to be sufficiently broad to cover any disadvantage provided it is real and not illusory.[59] In order to constitute unfavorable treatment, the detriment is to be more than a mere trifle.[60] Moreover, whether an act is detrimental is to be generally determined objectively and not by the subjective perceptions of the applicant.[61]
[59] Cooley v Australian National University [2007] ACTDT 2 at [44]
[60] Hinton v Alpha Westmead Private Hospital Pty Ltd (2016) 242 FCR 1, 9 at [20]
[61] Cooley v Australian National University [2007] ACTDT 2 at [44]
The Tribunal agrees with the submissions of the respondent and finds that the applicant was not treated unfavorably in relation to the treatment and care that he received at the AMC; that he was not treated unfavorably when he was advised that the SOTP would be provided to him in a group setting as that was the usual or most common setting of the program; that the decision that the SOTP would be provided in a group setting to the applicant was not because the applicant had been diagnosed with mental health conditions or because of his sexuality and as already found by the Tribunal, the applicant was not forced to undertake the SOTP program against his will as it is a voluntary program.
Conditions regarding indirect discrimination
Sub-sections 8(3) and (4) of the Discrimination Act provide that a complainant must establish that a condition was imposed that has the effect, or was likely to have the effect, of disadvantaging the complainant because of their protected attribute. In determining this, consideration must be given as to whether any condition imposed was reasonable in the circumstances. Section 8(5) sets out the matters to be considered and include the nature and extent of any disadvantage that results from imposing the condition or requirement; the feasibility of overcoming or mitigating the disadvantage; and whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposes to impose, the condition or requirement.
Having found that there was no disadvantage, the Tribunal is not required to consider whether any condition imposed was reasonable in the circumstances. However, if the Tribunal is incorrect in finding there was no disadvantage, the Tribunal finds that the condition or requirement was reasonable bearing in mind that the SOTP was usually conducted in a group setting and noting that the applicant did not actually attend a group setting and was in fact able to attend on a one-to-one basis shortly after his request to so participate was made.
Causation
To establish causation in indirect discrimination, the applicant would need to show that a condition was imposed, namely that SOTP had to be conducted in a group setting; and that the applicant was disadvantaged by the predetermined requirement.
As previously discussed, the applicant’s subjective view about the alleged requirement is insufficient. The Tribunal must undertake its own objective assessment of the facts in relation to the reason or reasons for which any act or acts were done.[62]
[62] Hagan v Trustees of Toowoomba Sports Ground Trust (2001) 105 FCR 56 at [23]
The Tribunal finds that the applicant has not provided any evidence with respect to the reasons why the disability and sexuality attributes were engaged in the circumstances and failed to demonstrate that the alleged conduct was engaged in because of his disability and sexuality. In the circumstances, the Tribunal finds that there was no connection between the alleged conduct and the applicant’s protected attributes.
Alleged detriment or loss
The applicant did not provide any documentary evidence in support of his alleged detriment or loss. The applicant asserted that actions of Mr Dunkley “started to ad [sic] a lot of stress on my mental health … my chronic anxiety was through the roof”.[63] Apart from this assertion, in his summary of argument, the applicant set out the orders he sought including the respondent cease any and all discriminatory conduct toward him in relation to his disability or sexuality; that the respondent not repeat to use or continue the use of Static-99 or Static-99R tools in relation to the applicant; that the respondent not repeat or continue to utilise the Static-99 or Static-99R with any other inmates at the AMC; and that the respondent pay compensation to the applicant to the amount of $40,000 for each breach of the Discrimination Act for the distress, humiliation and the impact of the discrimination on the applicant’s dignity caused by the respondent.[64]
[63] Applicant’s submissions 19 October 2021 at page 11
[64] Applicant’s summary of argument dated 12 November 2021 at [30]
Apart from the lack of evidence of loss, the respondent submitted, and the Tribunal accepts, that the applicant received adequate treatment and care for his diagnosed mental health conditions and that the applicant did not suffer any loss because initially he did not wish to receive any treatment from the providers available within the AMC.[65] The Tribunal also accepts the respondent’s submissions that the group based therapeutic programs with other inmates convicted of sex offences were not compulsory but that they were normally delivered in a group based setting.[66]
Orders
[65] See respondent’s response and submissions in support of application for interim orders dated 20 December 2021 at [45]
[66] See respondent’s response and submissions in support of application for interim orders dated 20 December 2021 at [45]
Section 53E of the HRC Act sets out the orders that may be made by the tribunal in relation to unlawful acts under the Discrimination Act. That section provides:
Kinds of orders—unlawful acts under the Discrimination Act
(1)This section applies if—
(a) the commission refers a complaint to the ACAT under this division; and
(b) the ACAT is satisfied that the person complained about engaged in an unlawful act.
(2)The ACAT must make 1 or more of the following orders:
(a) that the person complained about not repeat or continue the unlawful act;
(b) that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;
(c) unless the complaint has been dealt with as a representative complaint—that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
…
As discussed above, section 32 of the ACAT Act empowers the Tribunal to refuse to hear or to dismiss without further argument an application in whole or in part and the onus is upon the respondent to establish that the tribunal should exercise its power. In this instance, the respondent relies on section 32(1)(a) ‘frivolous or vexatious’ or (b) ‘lacking in substance’ of the ACAT Act.[67]
Frivolous or vexatious
[67] Respondent’s response and submissions in support of application for interim orders dated 20 December 2021 at [50]
The tribunal in an earlier matter considering an application brought pursuant to section 32(1) (a) and (b) stated:
The phrase ‘frivolous or vexatious’ is sometimes said to mean the same thing as lacking in substance or an abuse of process or also to mean that a claim has no reasonable prospects of success. However other cases, particularly early cases, have held that a proceeding is ‘frivolous’ when the party bringing it is ‘trifling with the court’, ‘wasting the time of the court’, or bringing the action only for annoyance. Early cases have held that an application is ‘vexatious’ not only when it is hopeless or oppressive but also where it tends to cause the other party anxiety, trouble and expense and is brought only for annoyance.[68]
[68] P v Registrar of Firearms [2018] ACAT 74 at [61]
If the strike out is successful, the applicant will be denied the opportunity to prove his allegations. The Tribunal may consider the strength of the applicant’s factual case, but the primary basis for the strike out application in the present case is that the claim cannot succeed at law.
The tribunal in Farah v Sandilands,[69] after examining the relevant authorities said:
The approach taken by the courts to summary dismissal must necessarily be adapted to the procedural context of the tribunal. Accepting that ACT law, as expressed by Errington[70], Galovac[71] and Financial Integrity[72], maintains the traditional approach to summary dismissal, the Tribunal’s task in determining the interlocutory application is to assess whether there is no real question to be tried in the sense that the claim is bound to fail taking into the material provided by both parties at this stage of the proceedings on the assumption that every fact ‘pleaded’ by the applicant is true.[73]
Lacking in substance
[69] [2021] ACAT 92
[70] Errington & Anor v ACT Planning and Land Authority [2019] ACAT 47
[71] Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132
[72] Financial Integrity Group Pty Ltd v Farmer [2009] ACTSC 143
[73] Farah v Sandilands [2021] ACAT 92 at [102]
The tribunal in Neelander Sirohi v Director-General, Justice and Community Safety Directorate[74] (Sirohi) after examining the relevant authorities said,
The term ‘lacking in substance’ has been taken to mean an application which, after an applicant’s evidence has been considered, contains nothing of substance for a respondent to answer.[75]
[74] [2019] ACAT 84
[75] Neelander Sirohi v Director-General Justice and Community Safety Directorate [2019] ACAT 84 at [50]-[53]
The respondent referred the Tribunal to a number of decisions where the term ‘lacking in substance’ had been considered and for convenience the Tribunal does not propose to further canvass them here. Suffice to say, the Tribunal agrees with the respondent’s submission that the propositions apply not only to the prospects that a tribunal will find the respondent to have engaged in unlawful discrimination against the respondent but also to the prospects that the tribunal will make the order, or grant the relief, that is sought by the applicant.
The respondent submitted that the Tribunal should be satisfied that the application is ‘frivolous or vexatious’ or ‘lacking in substance’.[76]
[76] Respondent’s response and submissions in support of application for interim orders dated 20 December 2021 at [65]
In Sirohi the tribunal considered the meaning ‘frivolous and vexatious’ and said:
In Gindy, President Crebbin considered the phrase ‘frivolous or vexatious’, and said (omitting footnotes):
18. The phrase “frivolous and vexatious” is a term of art that has been considered in many cases. In Pitt v One Steel Reinforcing Pty Ltd, Gray J said:
The word “frivolous”, especially when coupled with “vexatious” is a technical legal term, in substance, meaning the absence of a cause of action.
19. It was recently considered by Member Chenoweth in the matter of Council of the Law Society v The Legal Practitioner reported at [2011] ACAT 49, Mr Chenoweth said:
The use of the term “frivolous or vexatious” has a pejorative note to it. It has the implication that an application has been made for no good reason at all, or for a purpose designed to harass or annoy. The term is also used to describe a cause of action which has no reasonable prospects of success. 25 [2011] ACAT 67 at [23] 17
20. Mr Chenoweth noted the comments made by President Fitzgerald in the matter of re Cameron, to the effect that proceedings may be regarded as vexatious if there is a lack of reasonable grounds for the application sought to be made. Mr Chenoweth also referred to the comments of Refshauge J in the ACT Court of Appeal matter of King v Higgins [2009] ACTSC 153.
21.The phrase has been used in a number of cases in the context of an action designed to harass or annoy a party. I accept that that meaning is not relevant in these matters. I accept that the applicant genuinely believes that she has been subject to unfavourable treatment and that she has, to that extent, a genuine grievance.[77]
[77] Neelander Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84 at [46]
The Tribunal finds that notwithstanding the failure of the applicant to appear on the hearing of the respondent’s application for the application to be struck out or dismissed that he genuinely believes that he has been subject to unfavourable treatment. However, even though the applicant may have brought his claim for good reason, the term ‘frivolous and vexatious’ also describes a cause of action which has no reasonable prospects of success. For the reasons set out above, the Tribunal finds that the application has no reasonable prospects of success and is lacking in substance as the applicant has no arguable case and that there is nothing for the respondent to answer.
Conclusion
For the reasons set out above the Tribunal is satisfied that the applicant has no arguable case and that there is nothing for the respondent to answer. The respondent’s application is successful. The Tribunal is satisfied that the application is frivolous or vexatious is lacking in substance and has no reasonable prospects of success. The application is dismissed pursuant to section 32 of the ACAT Act.
………………………………..
Member W Hawkins
| Date(s) of hearing: | 11 March 2022 |
| Applicant: | No appearance |
| Counsel for the Respondent: | A Costin |
| Solicitors for the Respondent: | J Payne, ACT Government Solicitor |
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