Pikula-Carroll v ACT Corrective Services - [2023] ACAT 33

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pikula-Carroll v ACT Corrective Services

Details

AGLC: Pikula-Carroll v ACT Corrective Services [2023] ACAT 33
Case: [2023] ACAT 33
Decision Date: 6 June 2023

CaseChat Overview and Summary

Pikula-Carroll initiated legal proceedings against the ACT Corrective Services, claiming that the decision to transfer him to a NSW correctional centre based on allegations of his involvement in a riot at the Andrew Maconochie Centre (AMC) was discriminatory. Pikula-Carroll argued that the decision did not adequately consider his identity as a Ngunnawal man, his cultural needs, and his health issues, which he believed amounted to unlawful discrimination under section 20 of the Discrimination Act. The respondent moved for summary dismissal of the application at a time when the matter was ready for final hearing, claiming that the decision to transfer him was not a provision of a service within the meaning of the Act.

The court addressed whether the respondent’s summary dismissal application was appropriate and whether it should be discouraged in discrimination cases. The Tribunal found that the respondent's submissions did not consider the statutory context of the alleged unlawful discrimination, including whether the respondent provides facilities to detainees or specifically to those identifying as Aboriginal or Torres Strait Islander, and whether there was a refusal to make those facilities available to Pikula-Carroll. The Tribunal refused to hear the summary dismissal application because it was lacking in substance. The court also discussed whether amendments should be made to the ACT Civil and Administrative Tribunal Procedures Rules 2020 to require leave for such applications and to explicitly state the tribunal's discretion to refuse to hear the application.

Ultimately, the Tribunal determined that the decision to temporarily transfer Pikula-Carroll to a NSW correctional centre was reasonable under the circumstances, and thus, he was not subjected to indirect discrimination. Consequently, the issue of whether there was unlawful discrimination in the provision of services or facilities did not arise. The Tribunal dismissed the application.

Orders

Orders of the court

The Tribunal orders that:

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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