Pikula-Carroll v ACT Corrective Services
[2023] ACAT 33
•6 June 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
PIKULA-CARROLL v ACT CORRECTIVE SERVICES [2023] ACAT 33
DT 68/2021
Catchwords: DISCRIMINATION – complaint about indirect discrimination – allegation by a detainee at the Andrew Maconochie Centre (AMC) that a decision by the Commissioner for ACT Corrective Services to transfer him to a NSW correctional centre based on allegations that the applicant was involved in a riot that resulted in the destruction by fire of an AMC accommodation unit, without sufficient consideration being given to his identity as a Ngunnawal man, cultural needs and health issues, was unlawful discrimination under s 20 of the Discrimination Act – where the respondent applied for summary dismissal of the application at a time when the matter was ready for final hearing – where the respondent sought to establish that in making the decision to remove the applicant to NSW, the respondent was not providing a “service” – where respondent’s written submissions failed to consider the statutory context in which the alleged unlawful discrimination occurred, including whether the respondent “makes facilities available” to detainees, or specifically to detainees who identify as Aboriginal or Torres Strait Islander, and whether there was an actual or constructive refusal to make “those facilities” available to the applicant – where the Tribunal refused to hear the summary dismissal application because it was obviously “lacking in substance”– whether summary dismissal applications in discriminations matters are generally inappropriate and should be actively discouraged, including by amendment to the ACT Civil and Administrative Tribunal Procedures Rules 2020 to require such applications to be brought with leave of the tribunal and to make explicit the tribunal’s discretion to refuse to hear the application – where the respondent established that the decision to transfer the applicant temporarily to a NSW correctional centre was reasonable in the circumstances, such that the applicant was not subjected to indirect discrimination – where, as a result, the issue whether there was unlawful discrimination in the provision of services or facilities did not arise – application dismissed.
Legislation cited: ACT Civil and Administrative Tribunal Act 2008, ss 7, 9, 32
Corrections Management Act 2007, ss 12, 13, 14, 53, 55, 90, 96, 97
Crimes (Sentence Administration) Act 2005, ss 7, 26
Discrimination Act 1991, ss 8, 20, 70
Human Rights Act 2004, s 40B
Human Rights Commission Act 2005, ss 53A, 53CA
Subordinate
legislation cited: Corrections Management (Aboriginal and Torres Strait Islander Detainee and Offender) Policy 2018 (Notifiable Instrument NI2018-49)
Corrections Management (Aboriginal and Torres Strait Islander Detainee and Offender) Policy Revocation 2020, (Notifiable Instrument NI2020-767)
Corrections Management (Human Rights Principles for ACT Correctional Centres) Direction 2019 (Notifiable Instrument NI2019-303)
Corrections Management (Relocating a Detainee to a NSW Correctional Centre) Operating Procedure 2022 (Notifiable Instrument NI2022-141)
Cases cited:Andreopoulos v University of Canberra [2020] ACAT 95
Complainant 202012 v Australian Capital Territory (As represented by the Director-General, Community Services Directorate) [2023] ACAT 17
McGhie v Aboriginal Legal Service (NSW/ACT) [2023] ACAT 27
Nowak (a pseudonym) v Walsh (a pseudonym) [2023] ACAT 3
Tribunal:Senior Member M Orlov
Date of Orders: 6 June 2023
Date of Reasons for Decision: 6 June 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 68/2021
BETWEEN:
JASON PIKULA-CARROLL
Applicant
AND:
ACT CORRECTIVE SERVICES
Respondent
TRIBUNAL:Senior Member M Orlov
DATE:6 June 2023
ORDER
The Tribunal orders that:
The application is dismissed.
………………………………..
Senior Member M Orlov
REASONS FOR DECISION
Introduction
The applicant, Jason Pikula-Carroll, is a detainee at the Andrew Maconochie Centre (AMC). He made a complaint to the Human Rights Commission (HRC) alleging that a decision by the respondent, ACT Corrective Services (ACTCS), to transfer him to an NSW correctional centre in December 2020 was unlawful discrimination on the grounds of race and disability.
The complaint alleged that the applicant was transferred to the Goulburn correctional centre from the AMC on the basis of unproven and unjustified allegations that he participated in two incidents at the AMC, which the applicant denied, and that insufficient consideration was given to his race, cultural needs and health issues in deciding to move him to NSW.
The complaint was not resolved by conciliation. On 10 November 2021, the HRC referred the complaint to the ACT Civil and Administrative Tribunal (ACAT) under section 53A of the Human Rights Commission Act 2005 (HRC Act), which is an authorising law for the purposes of section 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).
The applicant’s particulars of discrimination and evidence
The applicant, who was represented by Legal Aid ACT, filed a document on 26 September 2022 giving particulars of the alleged unlawful discrimination. I refer to this document variously as the particulars of discrimination or the applicant’s particulars. It is appropriate to reproduce the contents of the document in full:
1. The applicant is a Ngunnawal man and has a spinal injury. Race and disability are protected attributes under s 7 of the Discrimination Act 1991(ACT).
2. On 16 March 2019, the Applicant was remanded in custody in the Alexander Maconochie Centre (AMC) facing ACT charges.
3. From on or around 16 March 2019, the Respondent was aware that the Applicant was Aboriginal and that he had a “herniated disc”.
4. On or around 6 March 2020, the Respondent was notified that the Applicant suffered a further injury while in custody and that he was experiencing “ongoing pain with decreased mobility”.
5. On 10 November 2020, the Applicant was housed in Accommodation Unit North (AU-North) when riots took place before lock-in.
6. The Applicant was not involved in planning or carrying [sic] the riots.
7. On the night of 10 November 2020, the Applicant was not placed in the management unit with six other detainees who were considered to be responsible for carrying out the riots.
8. On 1 December 2020, the Applicant returned from [sic] the AMC from Court and was notified that he would be segregated and transferred to NSW, on the basis that he had allegedly been one of the “primary drivers” of the riotous behaviour on 10 November. The Applicant had that day received an aggregate sentence of 30 years with a non-parole period of 18 years. The Applicant indicated he wanted to appeal his transfer to NSW.
9. On 2 December 2020, the Applicant completed a detainee request form stating that he wanted to appeal the transfer.
10. On or around 3 December 2020, the Commissioner of ACT Corrective Services signed a direction pursuant to s 26 of the Crimes (Sentence Administration) Act 2005 (ACT) authorising the Applicant’s transfer to NSW. The Respondent holds no record of consideration having been given to the Applicant’s status as an Aboriginal person or to his disability (spinal injury) prior to that decision being made.
11. From in or around 3 December 2020 to in or around March 2021, the Applicant was incarcerated as a maximum-security prisoner in the High-Risk Management Unit at the Goulburn Correctional Centre (Goulburn).
12. From in or around March 2021 to present, the Applicant has been incarcerated as a maximum-security prisoner in the Junee Correctional Centre (Junee).
13. As a result of being moved to NSW, the Applicant has suffered particular disadvantage because of his protected attributes.
14. The particular disadvantage suffered because of the Applicant’s race includes:
(a)The loss of the Applicant’s ability to connect to country due to being removed from Ngunnawal land.
(b)A diminished ability to maintain kinship ties because the geographical distance between Canberra where the majority of the Applicant’s kinship ties (including the majority of the Applicant’s family are based).
(c)A diminished ability to connect with culture due to now being incarcerated on Wiradjuri country and being unable to participate in certain cultural events.
15. The particular disadvantage suffered because of the Applicant’s disability includes:
(a)The loss of access to the healthcare and pain management plan in place at the AMC and associated access to allied health services and special modifications which had been approved at the AMC.
(b)An inability to access a similar equivalent level of healthcare in NSW, in part, because [sic] a loss of continuity of care and different approval processes.
16.The applicant was not ever charged with any offences in relation to his alleged involvement in the riots in the AMC on 10 November 2020.
The applicant sought the following orders:
1. A finding pursuant to s 8(3) of the Discrimination Act 1991 (ACT) that the respondent indirectly discriminated against the applicant by imposing a requirement that he be transferred to NSW, which disadvantage the applicant because of his race and disability.
2. An order pursuant to s 53E(2)(b) of the Human Rights Commission Act 2005 (ACT) that the respondent apologise to the applicant for the unlawful conduct.
3. An order pursuant to s 53E(2)(c) of the Human Rights Commission Act 2005 (ACT) that the respondent is to pay to the applicant:
(a)$40,000 in damages for pain and suffering, distress and aggravation of a medical injury; and
(b)damages for economic loss, comprising: [full particulars will be provided prior to the hearing].
The applicant filed his evidence on 26 September 2022. Apart from an indexed bundle of documents, the main evidence comprised a detailed witness statement by the applicant describing his identity as a Ngunnawal man, the circumstances in which he suffered a spinal injury as a result of a workplace accident and the subsequent aggravation of the injury while in custody at the AMC, the pain management regime implemented for him at AMC, his recollection of events surrounding the riot and his conduct during and after the riot, the sequence of events subsequent to the riot leading to his transfer out of the AMC, initially to the Goulburn Correctional Centre and then to the Junee Correctional Centre, and explaining how the relocation interstate disadvantaged him because of his protected attributes of race and disability.
The substance of the applicant’s case is that he was discriminated against by being transferred out of AMC on the grounds that he was a primary driver of the riot, when in fact he played no part in it, and that he was disadvantaged by the decision because of his race and disability.
The respondent’s response to the applicant’s particulars and evidence
The respondent filed its response to the applicant’s particulars on 1 November 2022. The response contained a general denial of liability on the following grounds:
1. The Respondent denies that it directly or indirectly discriminated against the Applicant.
2. The Respondent says that the decision to transfer the Applicant to NSW pursuant to the exercise of a statutory function does not constitute the imposition of a “condition or requirement” for the purposes of the Discrimination Act 1991.
3. Further and in the alternative, the Respondent denies that it was engaged in the provision of goods, services and facilities when it decided to transfer the Applicant to NSW. Rather, the Respondent says that it was exercising its statutory functions to manage the Applicant’s full-time detention and maintain the ongoing safety, security and good order of the AMC.
4. Further and in the alternative, the Respondent says that the decision to transfer the Applicant to NSW was reasonable in the circumstances.
5. The Respondent does not admit that the Applicant has suffered any loss or damage.
At the same time as the response, the respondent filed a chronology, an indexed bundle of contemporaneous notes, emails, reports and other documents relating to the decision to transfer the applicant to NSW, a statement of reasons for the decision dated 18 January 2021 prepared by Jon Peach, the Commissioner of ACTCS, and a witness statement of Mr Peach dated 1 November 2022. None of the material, other than Mr Peach’s witness statement, was new. The rest comprised attachments to ACTCS’s formal response to notification of a complaint to the HRC dated 4 May 2021. In his witness statement, Mr Peach expanded on the reasons for his decision to transfer the applicant to NSW. He claimed, for the first time, that the applicant’s disciplinary record at the AMC was a consideration, although this was not mentioned in the Statement of Reasons prepared shortly after he made the decision.
The respondent’s application for summary dismissal of the proceedings
Simultaneously with the filing of the response and respondent’s evidence, and without prior notice to the applicant or the Tribunal, the respondent filed an application seeking summary dismissal of the proceeding under section 32 of the ACAT Act on the grounds that it was frivolous or vexatious or lacking in substance. No particulars of the grounds were given. Orders were made on 2 November 2022, listing the application for hearing at the commencement of the final hearing on 11 November 2022. The respondent was directed to file and serve an outline of argument setting out the grounds upon which summary dismissal is sought and listing any authorities relied upon by 12 noon on 8 November 2022. The respondent did so, identifying two grounds for the application.
First, it was submitted that “indirect discrimination occurs when a condition or requirement is imposed that applies equally for everyone and thus appears neutral on its face, but it has the effect of disadvantaging a person because they have a protected attribute, and the condition or requirement is not reasonable in the circumstances.”[1] The decision to remove the applicant to an NSW correctional centre was a decision made under a statutory authority conferred by section 26 of the Crimes (Sentence Administration) Act 2005 (CSA Act). The decision was not one that applied to a wider class or group of persons such that it could amount to indirect discrimination. Thus, the claim must fail because the applicant failed to identify a condition or requirement that could amount to indirect discrimination.[2]
[1] Submissions on behalf of the Respondent – Interim Strike Out Application, dated 7 November 2022 (Respondent’s submissions) at [59]
[2] Respondent’s submissions at [61]-[62]
Second, even if the decision is capable of amounting to indirect discrimination, it is not unlawful because it did not occur in an area of public life prescribed by Part 3 of the Discrimination Act 1991 (Discrimination Act). The respondent pointed to the failure of the applicant to particularise the area of public life to which the complaint relates, noting, however, that correspondence from the HRC suggests the alleged discrimination was in the area of the provision of goods, services and facilities, which falls within section 20 of the Discrimination Act.
Whilst acknowledging the inherent difficulty in determining whether something constitutes the provision of a “service”, the respondent submitted that the decision complained about could not constitute the provision of a “service” considering the following matters:
(a)The decision was made under a statutory authority relating to the administration of the applicant’s sentence under the CSA Act.
(b)The decision was an inherent part of the day-to-day management of the AMC and was not made for the benefit of the applicant.
(c)The decision was made to ensure the ongoing safety, security and good order of the AMC and not because of the applicant’s race or disability.
(d)The decision was made in consideration of heightened tensions following the riot and the reduced capacity of the AMC due to the temporary loss of accommodation caused by the riot.
(e)The decision was a necessary incident of the applicant’s detainment over which he had no control or ability to choose.[3]
[3] Respondent’s submissions at [77]
In advance of the hearing, the Tribunal drew the respondent’s attention to what was said in Andreopoulos v University of Canberra (Andreopoulos) in relation to an application under section 32 of the ACAT Act seeking to dismiss a discrimination complaint on the grounds that it was lacking in substance:[4]
Applications of this kind normally are made before a respondent incurs the time, trouble and expense of preparing evidence for a final hearing, as happened earlier in this case when the University sought and was refused an order that the complaint be dismissed on the grounds that it lacked substance. The context in which the present application is made is different. All the evidence is before the Tribunal. We see no utility in deciding separately whether the complaint lacks substance in the sense necessary to justify an order under section 32(2) of the ACAT Act. In the present circumstances, where all of the evidence is before the Tribunal, a proper exercise of the Tribunal’s discretion under section 32(2)(b) is to decide the issues on the merits considering all of the evidence.[5]
[4] Andreopoulos v University of Canberra [2020] ACAT 95
[5] Andreopoulos at [94]
At the start of the hearing on 11 November 2022, I invited counsel for the respondent to explain why the Tribunal should entertain the application for summary dismissal when the matter was otherwise ready to proceed to a final hearing. Pressed to explain the utility of the application, counsel submitted that the application was a “mechanism to short circuit the process”[6] because “if the tribunal accepts the position put forward by the respondent that it is not capable of amounting to a service, then the tribunal does not need to go on to consider the other aspects of it”[7], which would reduce the burden on the Tribunal, the parties and the Tribunal’s resources.[8]
[6] Transcript of proceedings on 11 November 2022 (Transcript), page 10, line 19
[7] Transcript, page 10, lines 23-25
[8] Transcript, page 10, lines 27-30
This failed to address the considerations discussed in Andreopoulos to which I have referred. However, as I was satisfied that the respondent’s application was obviously “lacking in substance”, I exercised the Tribunal’s discretion under section 32(2)(a) of the ACAT Act to refuse to hear the application, indicating that I would give reasons as part of my final decision.[9] Those reasons follow.
[9] Transcript, page 12, lines 18-22
Indirect discrimination occurs where a condition or requirement is imposed, or is proposed to be imposed, on a person who is, or is likely to be, disadvantaged by the condition or requirement because the person has one or more protected attributes, and the condition or requirement was not reasonable in the circumstances. So much is obvious from a plain reading of section 8 of the Discrimination Act. It is not necessary to show that the condition or requirement is imposed, or is proposed to be imposed, not only on the complainant but also on a wider class or group of persons. The first ground of challenge is founded on an incorrect understanding of the relevant legislation.
The second ground, to the effect that decision complained about could not constitute the provision of a “service” considering certain factual matters, assumes the asserted facts are incontestable and necessarily determinative of the issue. Neither proposition is correct, as I will explain.
It is open to argue that the respondent is a provider who “makes facilities available” within the meaning of section 20 of the Discrimination Act and that the decision to transfer the applicant to NSW necessarily involved a decision to cease or refuse to make those facilities available to the applicant. This possibility was overlooked entirely. Even if the respondent successfully argued that the circumstances in question could not constitute a refusal to provide services, the question whether the respondent “makes facilities available” to detainees generally, or specifically to detainees who identify as an Aboriginal or Torres Strait Islander person and if so, what are they and whether the respondent discriminated against the applicant by refusing to make “those facilities” available to the applicant, would remain to be decided. As far as I am aware, the meaning of “makes facilities available” in section 20 of the Discrimination Act has not been considered previously. Whether considerations that are relevant to whether a person “provides…services”[10] are applicable to whether a person “makes facilities available” remains to be determined. It would be inappropriate to decide an issue of that kind for the first time in an application for summary judgment.
[10] See for example the discussion in Complainant 202012 v Australian Capital Territory (As represented by the Director-General, Community Services Directorate) [2023] ACAT 17 at [60]-[64]
The respondent’s submissions assume the “condition or requirement” imposed on the applicant must be characterised as the decision to relocate him to NSW, treating the decision as a singular event involving the exercise of the statutory authority conferred by section 26 of the CSA Act in isolation from the process that led to the decision. Taking a more granular approach and treating the ‘decision’ as a process, invites consideration of the broader statutory context in which the decision was made. That context is provided by the CS Act, the Corrections Management Act 2007 (CM Act), and statutory instruments made under the CM Act.
Analysis of the statutory context is essential to work out whether the respondent “makes facilities available” to detainees, or more specifically to detainees who identify as Aboriginal or Torres Strait Islander, and if so, what are those facilities, and whether a necessary pre-condition to the Commissioner’s decision to transfer the applicant to NSW, was an actual or constructive refusal to “make those facilities available” (or continue to make them available) to the applicant.
The following considerations may be relevant.
Functions under the CSA Act in relation to a sentenced offender must be exercised, as far as practicable, to respect and protect the offender’s human rights[11] and to ensure the offender is not subjected to further punishment, in addition to deprivation of liberty, only because of the conditions of detention.[12]
[11] CSA Act, section 7(1)(a)
[12] CSA Act, section 7(2)(a)
Under the CM Act, to protect the human rights of detainees at correctional centres, conditions at correctional centres must meet certain minimum standards, including that detainees must have reasonable opportunity to receive visits from family members, have access to suitable health services and facilities, and have reasonable opportunities for religious, spiritual and cultural observances, including indigenous spiritual beliefs.[13]
[13] CM Act, section 12(1)(g), (j) and (k)
Under Chapter 6 of the CM Act, a detainee has a statutory entitlement to a standard of health care equivalent to that available to others in the ACT and for arrangements to be made to ensure the provision of appropriate health services to them,[14] including as far as practicable, access to specialist health services from health practitioners and necessary health care programs, including rehabilitation programs.[15] A detainee also has a statutory entitlement to have their religious, spiritual and cultural needs met, including to have reasonable access to people with standing in a particular culture whom the detainee wishes to see for religious, spiritual or cultural purposes.[16]
[14] CM Act, section 53(1)
[15] CM Act, section 53(2)(d)
[16] CM Act, section 55(1) and (2)
Under section 13 of the CM Act, the director-general must comply with Ministerial directions about the exercise of functions under the CM Act. At the relevant time, the Corrections Management (Human Rights Principles for ACT Correctional Centres) Direction 2019[17] was in force, which required ACTCS to act compatibly with human rights in delivering services and to properly consider relevant human rights in making decisions as outlined in section 40B of the Human Rights Act 2004. Section 40B makes it unlawful for a public authority to act in a way that is incompatible with a human right and to fail to properly consider a relevant human right in deciding a matter.
[17] Notifiable Instrument NI2019-303
Under the Corrections Management (Human Rights Principles for ACT Correctional Centres) Direction 2019, the following human rights principles applied to the Commissioner’s decision to remove the applicant to NSW:
(a)The distinct cultural rights of Aboriginal and Torres Strait Islander detainees should be respected, including the rights relating to cultural heritage and spiritual practices, language and kinship ties;[18]
(b)Health needs must be actively identified and supported through cooperation between ACTCS and health agencies providing services to correctional centres;[19]
(c)Health services provided in a correctional centre should adopt both a therapeutic and health promotion focus, tailored to specific detainee needs;[20]
(d)Aboriginal and Torres Strait Islander detainees have the right to receive Indigenous-specific health services;[21]
(e)Appropriate health care services must be available to meet the particular health needs of all detainees…;[22]
(f)A detainee’s right to family and private life must be protected to the maximum extent possible by enabling detainee contact with family and friends through visits, telephone calls, letters and emails.[23]
[18] NI2019-303, clause 5.4
[19] NI2019-303, clause 10.1
[20] NI2019-303, clause 10.4
[21] NI2019-303, clause 10.7
[22] NI2019-303, clause 10.8
[23] NI2019-303, clause 13.1
Under section 14 of the CM Act, the director-general was empowered to make corrections policies and operating procedures to facilitate the effective and efficient management of correctional services. On 3 December 2020 – i.e., the day the Commissioner issued the direction under section 26 of the CS Act – the Corrections Management (Aboriginal and Torres Strait Islander Detainee and Offender) Policy 2018[24] remained in force.[25] The purpose of the policy, which applied to all ACT correctional centres, was to provide “an environment that exemplifies culturally safe services and programs aimed at connecting individuals with their cultural heritage, to lessen risk factors that contribute to re-offending rates amongst Aboriginal and Torres Strait Islander detainees and offenders”. The applicable principles included “support[ing] the distinct rights of Aboriginal and Torres Strait Islander detainees and offenders to maintain, protect and develop their cultural heritage, language, knowledge and kinship ties”.[26]
[24] Notifiable Instrument NI2018-49
[25] The policy was repealed by the Corrections Management (Aboriginal and Torres Strait Islander Detainee and Offender) Policy Revocation 2020, Notifiable Instrument NI2020-767, but this came into effect on 4 December 2020.
[26] NI2018-49, first dot point under “3 Principles”
When the Commissioner made his decision, there was no operating procedure for relocating detainees to NSW in force under section 14 of the CM Act. This omission was addressed later by the Corrections Management (Relocating a Detainee to a NSW Correctional Centre) Operating Procedure 2022.[27] Among other things, this now provides that considerations will “always include” Aboriginal and Torres Strait Islander status, health status and any current health interventions, the location of known family connections, and availability in NSW of services, programs or facilities which better meet the detainee’s needs. Further, where the detainee identifies as an Aboriginal or Torres Strait Islander, input must be obtained from the Aboriginal and Torres Strait Islander Services Unit relating to cultural matters and considerations such as supports available in the community, social and emotional wellbeing, and the detainee’s connection to Country, family and children. Notwithstanding this instrument did not exist at the relevant time, an argument could be made that because proper consideration must be given to a detainee’s relevant human rights when making decisions, it was essential for the Commissioner to consider such matters, regardless of whether an operating procedure was in force at the time.
[27] NI2022-141
The respondent’s submissions focussed solely on the authority conferred by section 26 of the CS Act and gave no attention to the broader statutory context, which was essential to work out how section 20 of the Discrimination Act may operate in the circumstances of this case.
The ACAT does not require parties to file pleadings or give particulars. The tribunal’s processes for preparing a discrimination matter for hearing are intrinsically organic so as to avoid a self-represented litigant becoming overwhelmed.[28] In advance of the final hearing, attempting to work out the “facts” that may be proved by “evidence” on which the applicant says they intend to rely – which may be in the form of an unsworn witness statement (and sometimes not even that), or emails and other documents that typically conflate matters of evidence and submission – is an arid exercise, not least because relevant oral evidence may be given at the hearing, including by the respondent’s witnesses. It should be obvious that it is not a task the Tribunal should be invited to embark upon in an application under section 32 of the ACAT Act.
[28] Nowak (a pseudonym) v Walsh (a pseudonym) [2023] ACAT 3 at [8]
While responsibility to identify the essential elements of a complaint about unlawful discrimination and the facts a complainant intends to prove to establish that unlawful discrimination has occurred always lies with the complainant, it is not uncommon for a complainant’s case to change at the hearing as new evidence emerges and its significance is appreciated, often for the first time, as a result of questioning by the tribunal. Provided a respondent is afforded procedural fairness in dealing with the new material, there is nothing surprising, unusual or unfair about this, particularly where the complainant is self-represented and the respondent has legal representation, as is typically the case.
Where a respondent considers that the applicant’s evidence does not reach the threshold established by section 53CA of the HRC Act for a presumption to arise that discrimination has occurred, it is open to the respondent to make a submission to that effect at the close of the applicant’s case and decide not to call any evidence. In effect, the respondent’s formal position is that it has no case to answer, leaving it to the tribunal to decide the outcome based on the applicant’s evidence alone.
The bar for a matter to go to a final hearing on the merits is not set high. Where the respondent was seeking to persuade the Tribunal that the applicant’s case was frivolous or vexatious, or lacking in substance, the responsibility lay on the respondent to identify and close off all potential lines of argument open to the applicant on the facts. The respondent’s submissions were patently deficient in that regard. It should not need to be said that it is not part of the Tribunal’s function to piece out the imperfections in a respondent’s grasp of the case it must prepare to meet.
The Discrimination Act has been described as –
…a technical, prescriptive Act, that offers a form of protection to people on prescribed grounds, in prescribed circumstances, subject to certain defences. Because it is so technical, making out a case under the Act can be very challenging for many self-represented litigants, and indeed many lawyers.[29]
[29] McGhie v Aboriginal Legal Service (NSW/ACT) Limited [2023] ACAT 27
The identification and analysis of relevant factual and legal issues in discrimination cases, including under section 20 of the Discrimination Act and statutory equivalents in other jurisdictions, may require difficult questions of statutory construction to be resolved as a precursor to determining the relevance of particular facts to the issues under consideration. As a general proposition, such issues are insusceptible to being determined on a summary judgment application, even where non-binding decisions in other jurisdictions in broadly analogous circumstances suggest a particular approach should be followed. A more nuanced approach is required that gives primacy to the statutory framework within which conduct amounting to unlawful discrimination is alleged to have happened.
Discrimination often arises in circumstances where there is a significant imbalance of power between the parties. A person who makes a complaint to the HRC is already aggrieved, regardless of whether their grievance amounts in fact and law to unlawful discrimination. A complainant’s perception of having been wronged is amplified where the complaint is unresolved by the HRC and is referred to the ACAT, particularly where there has been no acknowledgment by the party against who the complaint is made that the applicant has a legitimate grievance, even if it may not amount to unlawful discrimination. Complainants typically choose to have their complaint referred to the ACAT without any understanding of the statutory framework within which a complaint of discrimination must be decided, or of the minimum evidentiary requirements for a presumption to arise that direct or indirect discrimination has occurred.[30] In most cases before the tribunal, the complainant is unrepresented, while institutional respondents are represented by solicitors and counsel. To be confronted in those circumstances with an application for interim or other orders that asserts the complaint should be dismissed summarily because it is “frivolous or vexatious” or “lacking in substance” – concepts that are understood only by lawyers, and often not even by them – is likely to exacerbate feelings of bewilderment, disempowerment and alienation that many complainants may experience.
[30] Nowak (a pseudonym) v Walsh (a pseudonym) [2023] ACAT 3 at [5]-[6]
While the tribunal must seek to ensure that its procedures are implemented in a way that facilitates resolution of the issues between the parties so that the cost to the parties and the tribunal is proportionate to the importance and complexity of the subject matter of the proceedings,[31] the “cost” to a complainant in a discrimination matter should not be measured only in monetary terms.
[31] ACAT Act, section 7
Regrettably, applications under section 32 of the ACAT Act have become almost routine in the discrimination area, usually where the complaint is made against an institutional respondent with access to sophisticated legal advice. In my view, such applications generally are inconsistent both with the statutory objects of the ACAT Act[32] and the tribunal’s statutory functions[33] and should be actively discouraged.
[32] I refer to the objects in section 6(b) and (c) in particular
[33] ACAT Act, section 7
If necessary, that could be achieved by amending the ACT Civil and Administrative Tribunal Procedures Rules 2020 to provide that an application under section 32 of the ACAT Act in a discrimination matter may be made only with leave of the tribunal, and to make explicit the tribunal’s discretion to refuse to hear such an application.
The overriding requirement that the tribunal must observe natural justice and procedural fairness and ensure that its decisions are fair, the importance of the issues to the complainant, the complexity of discrimination cases, the inevitable imbalance of power between unrepresented and represented litigants, and the importance of giving full effect to the statutory objects of the Discrimination Act – including eliminating discrimination to the greatest extent possible, promoting and protecting the right to equality before the law under the Human Rights Act 2004, encouraging the identification and elimination of systemic causes of discrimination, and promoting and facilitating the progressive realisation of equality, as far as reasonably practicable – suggests that leave to bring an application under section 32 of the ACAT Act should be given sparingly and only in very limited circumstances.
The hearing
As a consequence of an apparently deliberate decision by the respondent to disregard the Tribunal’s orders for the preparation of the matter for hearing and to serve the respondent’s response and evidence late,[34] the nature of the new material contained in Mr Peach’s witness statement, the resulting prejudice to the applicant from being caught by surprise, and the likelihood that the hearing would have to be vacated to give time for the applicant to meet the new case put against him, I refused leave for the respondent to rely on the witness statement.[35] As mentioned earlier, the Statement of Reasons dated 18 January 2021 formed part of the evidence, so that the respondent suffered no prejudice as a result.
[34] Transcript at page 12, line 18 to page 14, line 23; page 17, line 41 to page 18, line 22; page 18, line 47 to page 20, line 11
[35] Reasons at transcript, page 20 line 13 to page 21, line 7
The Tribunal was informed by the respondent’s solicitors, in correspondence received on the morning of the hearing, that Mr Peach was not well enough to give evidence. However, after the hearing commenced it emerged that Mr Peach “had a physical issue that has rendered him unable to attend the tribunal”[36] but was available to give evidence remotely.[37] The applicant was offered the opportunity to cross-examine Mr Peach by video-link but declined.
[36] Transcript, page 17, line 3
[37] Transcript, page 19, line 43 to page 20, line 11
The applicant gave evidence via video-link from the AMC and was cross-examined briefly. Nothing new emerged that was not already dealt with in his witness statement.
The following facts are derived principally from the respondent’s records and uncontroversial evidence given by the applicant.
Factual background
The applicant identifies as a Ngunnawal man. His mother is a Barrangang and Ngunnawal woman. His father is Tongan. He is currently serving an aggregate sentence at AMC of 27 years with a non-parole period of 16 years and two months.
The applicant suffered a workplace injury in about 2014, when he was about 18 years old working as an apprentice chef. He suffered a prolapsed disc with associated sciatica and nerve pain. The pain resulted in him developing an addiction to pain medication.
On 16 March 2019, the applicant was remanded in custody at the AMC on charges of aggravated burglary, assault causing actual bodily harm and murder, having been extradited from NSW where he had completed sentences of imprisonment for crimes committed in NSW.
On 3 March 2020, he suffered a slip and fall injury while working as a cleaner at the AMC, which exacerbated his pre-existing spinal injury. The applicant had been provided health services by the Winnunga Aboriginal Health and Community Services (Winnunga), but after the further injury transferred to Justice Health Services where he was given treatment for opioid addiction and a pain management plan. This gave him access to a physiotherapist (weekly), nutritional therapist (fortnightly), personal trainer (two to three times a week) and orthopaedic footwear, which contributed to a decrease in pain and an overall improvement in the applicant’s health and wellbeing.
Initially, the applicant was classed as a maximum-security prisoner. However, in mid-October 2020, he was given a medium-security classification.
On 10 November 2020, 27 detainees housed in Accommodation Unit North (AU North) refused to return to their cells for evening lock-in. The incident was protracted and degenerated into a riot. Reports by ACTCS officers indicate that detainees armed themselves with weapons, caused significant damage to the accommodation unit and set fires within the unit and the external yard. Emergency services were called to attend, including ACT Fire and Rescue and ACT Policing. The Commissioner of ACTCS, Jon Peach, described the incident as “the most serious act of concerted indiscipline I have seen at the AMC”.[38]
[38] Statement of Reasons, exhibit R1, page 55
The applicant was housed in AU North on 10 November 2020 and, according to his witness statement, had been housed there for several months. The applicant strenuously denies any involvement in the riot and, as he points out, has never been charged with an offence relating to the riot.
However, contemporaneous reports by ACTS officers indicate that all twenty-seven detainees accommodated in AU North, including the applicant, participated in the incident to varying degrees. ACTS officers conducted a review of CCTV footage from about 5.55 p.m. on 10 November 2020 and assessed that the applicant participated in planning the incident. An Intelligence Target Profile noted that the applicant is a reported member of the Gorilla Mafia Family prison gang operating in Remand Unit 1 and AU North. Prior to the incident, the applicant was observed meeting with other detainees in the AU-North yard, including a Comanchero Commander, whom corrections officers considered to be the most influential detainee housed in AU-North. He was also observed speaking privately with another detainee who damaged several CCTV cameras during the incident and made preparation for the fires.[39]
[39] Intelligence Target Profile, exhibit R1, page 7
The damage caused to AU North during the riot and a further incident within the AMC several days later, which is not alleged to have involved the applicant, resulted in a reduction in operational capacity of the AMC by fifty-six beds. Initial scoping of repairs to AU North indicated that repairs would not be completed until mid to late 2021.
On 11 November 2020, the applicant attended his sentencing hearing. The Court reserved its decision until 1 December 2020, and the applicant returned to the AMC. He was accommodated initially in Remand Unit 2 and then moved to Accommodation Unit South.
On 18 November 2020, Mr Peach and the Deputy Commissioner Custodial Operations discussed the possible transfer of detainees to NSW. Mr Peach advised that he would consult with the Commissioner of Corrective Services NSW (Commissioner, CSNSW).
The Intelligence and Integrity Unit (IIU) prepared a spreadsheet of all detainees in AU North on the night of the incident. Using CCTV footage and reports by ACTCS officers, the IIU made recommendations on who should be transferred based on the unit’s assessment of the level and type of involvement in the incident on 10 November and a subsequent incident several days later, involving a fire started in a different part of the AMC. Detainees were classified as having a high (red), medium (orange) or low (green) level of involvement. This was discussed at an informal meeting of the IIU in the morning on 19 November 2020 at which an initial list of seven detainees was agreed, including the applicant. There was a further meetings with senior officers of ACTCS to discuss the matter later that morning, where no issue was taken with the names on the list.
Shortly before noon on 19 November 2020, at a meeting attended by senior officers of ACTCS and Mr Peach, the latter is reported to have said that he was looking for a list of names who, if transferred to CSNSW custody, would “take the heat out of the situation” in the AMC. The IIU list was discussed, and reasons for including each detainee were presented. The IIU’s recommendations were accepted without change and a further name was added to the list based on his involvement in an incident that happened several days after the riot.
Following the meeting, IIU prepared Intelligence Target Profiles for each of the eight detainees who had been identified for transfer, including the applicant.
On 19 November 2011, Mr Peach emailed the profiles to the Commissioner, CSNSW. The email reads in part:
Thank you for your time yesterday evening and kind agreement to support ACTCS in moving several detainees to CSNSW at least for a period of time.
As discussed, following damage to a unit and a cottage within the AMC, accommodation is at a premium and I am keen to release some of the tension by transferring 8 detainees to New South Wales in accordance with section 26 of the Crimes (Sentencing Administration) Act 2005 (ACT) and the corresponding section 44 of the Crimes (Administration of Sentences) Act 1999 (NSW).
I have provided the intelligence profiles of the 8 detainees we have identified for transfer – 7 of these relate directly to the incident which occurred on November 10th where 27 detainees refused to lock in and proceeded to start fires within the AU North and the 8th detainee…was involved in a fire in a sentenced cottage on Saturday 14th November 2020 and, following a move to a more secure unit caused damage to cell windows whilst on the exercise yard.”[40]
[40] Exhibit R1, page 13
On 1 December 2020, upon returning to the AMC, the applicant was given a segregation direction. This was written notice that he would be segregated pending transfer to an NSW correctional centre. Authority to direct a detainee to be segregated from other detainees is given by section 90 of the CM Act. The reason for the direction was stated to be that “Detainee has been identified as one of the main drivers of the riotous behaviour on 10 Nov. This makes him a risk to the future stability of the AMC and as such detainee PIKULA-CARROLL is to be transferred to NSW on 3 December 2020.”[41] The notice informed the applicant that he should talk to the Duty Manager/Officer-In-Charge, an AMC Health Centre professional who would visit him every day, his Case Manager or Indigenous Liaison Officer, if he had any complaints or problems arising out of his segregation. The notice also informed the applicant of his right to request the General Manager Custodial Operations or an external adjudicator to review the segregation direction. Rights of review are governed by section 96 and 97 of the CM Act. There is no right of appeal.
[41] Applicant’s witness statement dated 26 September 2022, Annexure C, page 11
On 2 December 2020, the applicant met with the Indigenous Liaison Officer. The officer’s case notes record:
Met this detainee as per request.
The detainee is in MU with the expectation that he will be extradited to NSW.
He reported he is not that anxious or feels he will be at risk however, will have issues in the Islander yard.
The detainee reported he does still have contacts in NSW and this is in the Koori yard.
He reported his main issues are to do with his property as he may not be able to take it into NSW Corrections.
The detainee has made contact with his mother and reported she is upset about the move to NSW.
He went on to say he has been doing well and more recently has a medium classification with the view to doing his time and making other changes to his rehabilitation.
The detainee said that all the changes will be fruitless as he will spend a longer time in NSW prisons.
He explained that he will attract more disciplines that will lead to the longer sentences.
He has made contact with the ombudsman and expects to contact his legal support.
…Nil other issues as the detainee prepares for his extradition.
On 2 December 2020, the applicant lodged a Detainee Request Form requesting a review of the segregation direction. However, this was overtaken by events because he was transferred to NSW the next day. He was advised later that the segregation direction and transfer to NSW would not have been changed given the seriousness of the incident on 10 November 2020.
On 3 December 2020, the Commissioner for ACTCS issued a direction pursuant to section 26 of the Crimes (Sentence Administration) Act 2005 (CSA Act) for the applicant to be transferred to a NSW correctional centre that day.
In its written response to the notice of complaint, ACTCS confirmed that it held records of the applicant’s herniated disc and of his injury on 3 March 2020, the latter in the form of a Personal Injury Report form completed by Winnunga that recorded “ongoing pain with decreased mobility”. There was no mention of any records held by Justice Health Services. ACTCS confirmed that no consideration was given to the applicant’s back injury and no advice was sought from Justice Health Services before the decision to transfer him to NSW was made. Also, no consideration was given to the applicant’s Aboriginality.[42]
The Statement of Reasons dated 18 January 2021
[42] Letter from ACTCS to HRC dated 4 May 2021 (applicant’s witness statement dated 26 September 2022, Annexure F, page 18)
ACTCS informed the HRC that the reasons for the decision to transfer the applicant are set out in the Statement of Reasons dated 18 January 2021, which Mr Peach prepared.
The following excerpts are important:
(a)The AU North accommodation unit is a maximum rated secure unit and is frequently used to house detainees that are considered to be difficult to place elsewhere in the facility due to their behaviour or associations. The impact of the loss of accommodation, specifically the 28 secure beds within AU North, presented significant difficulties for the placement of the detainees involved in the disturbance, including Mr Pikula-Carroll, to ensure the ongoing safety, security and good order of the AMC.[43]
(b)I considered this incident to be an extreme and exceptional circumstance. The loss of secure accommodation within the AMC presents considerable challenges in managing the array of detainee cohorts safely within the centre. I found the tension within the AMC to be evident following the incident. In reflecting on the ongoing placements of all the detainees involved in the incident to ensure the safety and security of the AMC and those within, I considered this would require restrictive regimes to be established for those involved, and the detrimental effect of similar regimes that would need to be introduced for those not involved but required to be located within a unit with these detainees. I also considered the need to ensure that all detainees within the AMC are afforded appropriate access to time out of cell, programs, education, and other rehabilitative activities including those detainees who may require separate management regimes.[44]
(c)Following this consideration and further discussions with the DCCO[45] , I was satisfied that the AMC did not have the accommodation infrastructure to relocate all detainees involved in the disturbance to mitigate against the risk of further incidents or similar disturbances, and to provide an equivalent level of access to services as other detainees under the Corrections Management Act 2007 (ACT).[46]
(d)Based on the information provided to me in the discussion,[47] I am satisfied that Mr Pikula-Carroll presented as having had a high level of involvement in the planning of the disturbance and a significant challenge in identifying a suitable alternative placement within the AMC without adversely impacting on the safety and security of the correctional centre.[48]
(e)I was satisfied that in agreeing to the recommendation to transfer Mr Pikula-Carroll to NSW, due consideration had been given for the need to balance safety, security and good order against the need to limit the number of detainees to be transferred to appropriately mitigate the risks of future incident and reduce evident tension within the AMC.[49]
(f)I am satisfied that the transfer of Mr Pikula-Carroll was appropriate under these exceptional circumstances when I consider the potential for further incidents either involving Mr Pikula-Carroll noting the challenges with placement and balancing this with the impacts on both Mr Pikula-Carroll and his family members.[50]
(g)The ongoing placement of Mr Pikula-Carroll will be reviewed as soon as the AU North Accommodation unit is fully operational and can accommodate detainees.[51]
[43] Exhibit R1, page 55
[44] Exhibit R1, page 56
[45] Deputy Commissioner Custodial Operations
[46] Exhibit R1, page 56
[47] This is a reference to a meeting on 19 November 2020 with the DCCO, General Manager AMC, Senior Director Operations AMC and the Director, Intelligence and Integrity Unit to discuss the transfer of detainees to NSW in line with their recommendations, mentioned earlier in these reasons.
[48] Exhibit R1, page 57
[49] Exhibit R1, page 57
[50] Exhibit R1, page 57
[51] Exhibit R1, pages 57-58
In fact, by the time of hearing, the applicant had been transferred from the Junee Correctional Centre in NSW to the AMC to complete his sentence of imprisonment.
Unlawful discrimination under section 20 of the Discrimination Act 1991
The complaint in this case is about indirect discrimination in circumstances the applicant claims makes the discrimination unlawful under section 20 of the Discrimination Act.
A person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has one or more protected attributes,[52] unless the condition or requirement is reasonable in the circumstances.[53]
[52] Discrimination Act, section 8(3)
[53] Discrimination Act, section 8(4)
Section 20 of the Discrimination Act makes it unlawful for a person who provides services, or makes facilities available, whether for payment or not, to discriminate against another person by refusing to provide those services or make those facilities available to the other person,[54] or in the terms or conditions on which the provider provides those services or make those facilities available to the other person,[55] or in the way in which the provider provides those services or make those facilities available to the other person.[56]
[54] Discrimination Act, section 20(a)
[55] Discrimination Act, section 20(b)
[56] Discrimination Act, section 20(c)
Where a complaint about indirect discrimination is referred to the ACAT, section 53CA of the HRC Act provides that there is a rebuttable presumption that indirect discrimination has occurred if the complainant establishes that the condition or requirement imposed, or proposed to be imposed, on them has, or is likely to have, an effect of disadvantaging them and presents evidence that would enable the ACAT to decide, in the absence of any other explanation, that the effect of disadvantaging them is because of their protected attribute.[57] The presumption is rebutted if the person complained about establishes that the effect of disadvantaging the complainant is not because of their protected attribute.[58] The onus to establish the presumption lies on the complainant. The onus to rebut the presumption lies on the respondent.
[57] HRC Act, sections 53CA(2)(a)(ii) and (b)(ii)
[58] HRC Act, section 53CA(3)(b)
However, section 53CA does not apply where the condition or requirement is reasonable in the circumstances.[59]
[59] HRC Act, section 53CA(1)(b)
In deciding whether a condition or requirement is reasonable in the circumstances, the matters that must be considered include the nature and extent of any resulting 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 proposes to impose, the condition or requirement.[60]
[60] Discrimination Act, section 8(5)
The onus of establishing an exception, exemption, excuse, qualification or justification under the Discrimination Act, lies on the person seeking to rely on it.[61]
[61] Discrimination Act, section 70
Thus, the onus is on the respondent in this case to establish that the condition or requirement imposed, or sought to be imposed, on the applicant is justified because it is reasonable in the circumstances.
Consideration
Mr Peach was not cross-examined on the Statement of Reasons. It is consistent with statements recorded in business records maintained by ACTCS and in contemporaneous written communications between Mr Peach and his equivalent in the NSW Correctional Service. It also accords with common sense. I have no reason to doubt the truth of what he says about considerations that informed his decision to transfer the applicant on a non-permanent basis to a NSW correctional centre.
It is apparent from the Statement of Reasons that in making that decision, Mr Peach considered, among other things, the nature and extent of any resulting disadvantage to the applicant, the feasibility of overcoming or mitigating the disadvantage, and whether the disadvantage was disproportionate to the primary result Mr Peach was endeavouring to achieve, which was to ensure the ongoing safety, security and good order of the AMC while the AU North accommodation unit was rebuilt.
It is true that specific consideration was not given to the continuity of treatment for the applicant’s back injury, nor to his specific medical and pain management needs, nor to the fact that he identifies as an Aboriginal person. It does not follow from this that the decision to transfer him was not reasonable in all the circumstances.
It would be reasonable to assume that the applicant would receive appropriate medical treatment in a NSW correctional facility. Even if it should have been foreseen, if someone had turned their mind to it, that there may be some loss of continuity in the applicant’s medical and pain management treatment, I am not persuaded this would outweigh other considerations to which Mr Peach gave weight, particularly where he was not cross-examined about this.
Nor am I persuaded that the fact the applicant identifies as a Ngunnawal man, even if it had been present to Mr Peach’s mind when he made the decision, would have made any difference. Nothing coming out of the applicant’s meeting with the Indigenous Liaison Officer on 2 December 2020, suggests otherwise. Further, immediately prior to his transfer to the AMC on remand, the applicant had served sentences of imprisonment in NSW correctional centres for crimes committed in that state. As the applicant informed the Aboriginal Liaison Officer, he still had contacts in NSW in the Koori yard.
The reasonableness of Mr Peach’s decision cannot be impugned on the grounds that the applicant claims that he was not involved in planning or implementing the riot and the fact that he was never charged following the incident. If the applicant were wrongly found responsible for something he did not do because of a flawed or incomplete investigation, he would be entitled to feel aggrieved. However, the correctness or reasonableness of those findings is not open to be reviewed in the ACAT. Any rights the applicant may have had to seek review of the segregation order and the subsequent decision to transfer him to NSW, were governed by the CM Act, from which there is no appeal. Thus, whether it was reasonable in the circumstances for Mr Peach to decide to transfer the applicant to a NSW correctional centre must be judged on the basis that there was an investigation and the investigation found that applicant had a high level of involvement in the riot.
In the context of other relevant considerations mentioned by Mr Peach in the Statement of Reasons, I am satisfied that his decision to transfer the applicant to a NSW correctional facility was reasonable in the circumstances.
It follows that the respondent did not indirectly discriminate against the applicant. Whether there was unlawful discrimination in the provision of services or facilities therefore does not arise for determination.
The appropriate order is to dismiss the application.
………………………………..
Senior Member M Orlov
| Date of hearing: | 11 November 2022 |
| Solicitor for the Applicant: | Ms S. Kelly, ACT Legal Aid |
| Solicitor for the Respondent: | Ms D. Perks, ACT Government Solicitor |
| Counsel for the Respondent: | Mr J. Maher |
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