Sandor v State of Queensland

[2016] FCCA 2357

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDOR v STATE OF QUEENSLAND [2016] FCCA 2357

Catchwords:
HUMAN RIGHTS – Application allegedly unlawful discrimination – disability discrimination – racial discrimination – no discrimination proved – application dismissed.

Legislation:

Disability Discrimination Act1992, ss.4, 5, 6, 24
Racial Discrimination Act1975, s.9(1)

Applicant: MIKLOS SANDOR

Respondent: STATE OF QUEENSLAND (DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES)

File Number: BRG 1147 of 2014

Judgment of: Judge Jarrett

Hearing date: 19 April 2016

Date of Last Submission: 11 May 2016

Delivered at: Brisbane

Delivered on: 12 September 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr Merrell

Solicitors for the Respondent: Crown Law

ORDERS

1. The application filed on 11 December 2014 be dismissed.

2. The applicant pay the respondent’s costs of and incidental to the application to be agreed and failing agreement to be assessed according to Schedule 1 of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1147 of 2014

MIKLOS SANDOR

Applicant

And

STATE OF QUEENSLAND (DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES)

Respondent

REASONS FOR JUDGMENT

1. In these proceedings Mr Sandor seeks relief for unlawful discrimination by officers employed by the respondent.  He relies on two distinct occasions of discrimination. 

2. The first, he alleges, occurred on or about 13 May, 2010 when an officer of the respondent, Ms Jodie Chapman said to him “Go back to where you came from”. Mr Sandor alleges that in stating those words Ms Chapman contravened s.9(1) of the Racial Discrimination Act 1975 (Cth). He seeks a written apology from the State of Queensland and Ms Chapman (although she is not a party to the proceedings) for that.

3. The second incident of discrimination upon which Mr Sandor relies occurred on or about 2 April, 2012 when he alleges that Ms Sharon Richardson and Mr Brendan Hall, officers of the respondent’s Department expressed an assumption that Mr Sandor was “living with mental issues”. He alleges that the expression by them of that matter contravened ss. 5, 6 and 24 of the Disability Discrimination Act 1992 (Cth). He seeks a written apology from the State of Queensland and Ms Richardson (although she is not a party to the proceedings) for that conduct.

4. For the reasons expressed below, I am not satisfied that Mr Sandor was discriminated against by the officers of the respondent in the way in which he alleges.  In my view, there were no acts of discrimination by those officers.  I am not satisfied that Ms Chapman said to Mr Sandor, “Go back to where you came from”.  Nor am I satisfied that Ms Richardson or Mr Hall expressed an assumption or in any other way expressed that Mr Sandor was “living with mental issues”.  Mr Sandor’s application cannot succeed and it must be dismissed with costs.

Background

1. The particulars of Mr Sandor’s claim appear in the complaint that he made to the Australian Human Rights Commission which is attached to his application filed in this court on 11 December, 2014 his statement of claim filed on 28 September, 2015 his further statement of claim filed on 14 October, 2015 his affidavit filed on 28 April, 2015 his affidavit of evidence in chief filed on 23 November, 2015 and his written submissions filed on 11 May, 2016. 

2. Unfortunately, Mr Sandor’s statements of claim and his evidence were not particularly helpful.  His affidavit evidence is sparse and, as the cross-examination revealed, Mr Sandor’s case is built upon records held by the respondent of conversations that took place between Mr Sandor and officers of the Department of Communities, Child Safety and Disability Services.  It was difficult to determine whether what Mr Sandor said in his answers to cross-examination was his genuine recollection, or whether it was reconstruction having regard to the documents that he had been able to obtain from the Department through freedom of information processes.

3. Mr Sandor is of Hungarian descent.  He has been an Australian citizen since 1991.  He has a son.  In April, 2010 his son was about six years of age.  At about that time he made contact with the respondent’s Department on five or six occasions.  He was seeking the assistance of the Department because he was struggling financially.  He was in receipt of Centrelink benefits and, he accepted, was unable to provide for his son as well as may have liked.  He approached the Department for assistance on a number of occasions.  In particular he wanted assistance with housing. 

Racial Discrimination

1. The occasion which is of particular interest to this claim occurred, Mr Sandor claims, on 13 May, 2010.  Mr Sandor claims that on 13 May, 2010 at the respondent Department’s Maroochydore office during a meeting he was told by Ms Jodie Chapman to “Go back to where you came from”. 

2. To support his case about that he relies upon a document entitled “Child Concern Report” produced to Mr Sandor pursuant to a “Freedom of Information” type request made by him of the respondent’s Department. 

3. The Child Concern Report purports to be created on 13 May, 2010 at about 11:54am by a person called Jodie Chapman.  It appears to be a contemporaneous record of a conversation that occurred on the same day as the document was created.   It’s terms suggest that it was created at the Sunshine Coast North “CSSC” (which I understand stands for “Child Safety Service Centre”).  The Child Concern Report on its face relates to Ben Sandor, Mr Sandor’s son and Mr Sandor.  The Child Concern Report records statements made by a person identified in the document as the “Notifier”.  The identity of the Notifier is not revealed.  The document records conversation between the Notifier and a person designated CSO (which I understand stands for “Child Safety Officer”).  The identity of the Child Safety Officer is not revealed by the document.  The basis upon which the Notifier and the CSO interacted is not revealed – whether it was a telephone conversation or a face to face meeting. 

4. The document attached to Mr Sandor’s affidavit is plainly more than one page long but there is only one page of it in any of the evidence.  It is not clear if the whole of the document was produced to him.  For reasons that are entirely unexplained, the respondent Department has chosen not to put the complete document into evidence.

5. Mr Sandor was cross-examined about the content of that note and what it records about the conversation between the Notifier and the Child Safety Officer who was receiving the information.  Mr Sandor accepted that he was the person described in the document as the Notifier.

6. Mr Sandor accepted many of the propositions that were put to him arising from the conversations recorded in the Child Concern Report.  Some he did not accept initially but in subsequent answers, accepted that he had said those things to the Child Safety Officer. 

7. Essentially, Mr Sandor’s contact with the Department was to seek assistance from the Department both with financial matters and with support more generally.  He was having difficulty looking after his son and providing him with the things that he needed.  He could not afford to pay his rent and was living in a caravan park.  He had been given notice that he would be evicted from the caravan park if he did not pay his overdue rent.  He wanted the Child Safety Officer to go and look at the caravan park, presumably to emphasise the conditions in which he and his son were living.  He was seeking accommodation in a shelter but had been unable to secure any such accommodation.  He wanted to remain on the Sunshine Coast area because he had recently commenced studies at the University there and his son attended a local school that he enjoyed.  He wanted the Department to assist him with some alternative accommodation.  He accepted that he had told the person to whom he was speaking that he had not been able to send his son to school with lunch one day and that he could not buy him a drink when they had been out shopping on one occasion.

8. Relevantly, the Child Concern Report records this:

   The notifier states that last time they spoke with the Department the CSO suggested that the family return to Europe.  The notifier stated that it was racist to suggest that.  The CSO stated that they had suggested that an option for the family would be to go back to Europe where extended family resided for support and assistance.  Notifier stated that the father’s family in Europe was not appropriate and that is why they came to this country and if the CSO had known that they would not have suggested it.

9. The terms of the document suggest that there was an earlier occasion when “the CSO suggested that the family return to Europe”.  It is unclear from Mr Sandor’s evidence whether it is that occasion about which he is complaining, or whether it is the subsequent statement made by the CSO recorded in the note that “The CSO stated that they had suggested that an option for the family would be to go back to Europe where extended family resided for support and assistance.”  In either case, however, the note does not record that at any time the words “Go back to where you came from” were used.

10. Mr Sandor was insistent, however, that those words were used.  He was unable to give any context to those words by providing any other conversation that took place when those words were said. 

11. I have evidence from Ms Jodie Chapman.  Ms Chapman’s evidence was that on 13 May, 2010 she was employed by the respondent Department as a Child Safety Officer.  She was employed as an Intake Officer – one of two for the Sunshine Coast region.  Her role as an Intake Officer was to receive and filter information about child safety matters from external sources.  She routinely received 20 to 30 telephone calls and 12 to 20 emails or facsimiles per day.  She also met with people if they chose to report information to the Department in person.  She would receive information about child safety matters from a range of sources including police, hospitals and schools.

12. When she received information about child safety matters she recorded that information and assessed it according to the Department’s policies.  After assessing and categorising the information she would forward it to an Intake Manager to approve her assessment and categorisation.  At the time information is reported and before it is assessed and categorised the information is recorded in the form of an email or a general note and after the information is recorded, assessed and categorised it is saved into the appropriate form or database on the Department’s system. 

13. Ms Chapman has no recollection of Mr Sandor.  She recalls neither his name nor speaking to, or meeting, him.  Her evidence is that the notation on the Child Notification Report “Created by Jodie Chapman” indicates that she opened that Child Concern Report and typed information into it, although just what information she put into the form she was unable to say.  Her evidence is that the notation does not mean that she was the Child Safety Officer who spoke to the Notifier and that it was possible that she created that entry in the Department’s system based on an email or general note that was available in the “backlog tray”.  However, given that the note was created on the same day that the conversation occurred, it seems unlikely that it was in the “backlog tray” as described by Ms Chapman. 

14. Ms Chapman’s evidence is that without seeing a full copy of the Child Safety Report she could not be sure if she spoke to the Notifier on that occasion.  Despite her evidence about that, a full copy of the Child Concern Report was not made available to Ms Chapman by the respondent Department so as to assist either her or the Court. 

15. Ms Chapman refers to the passage contained in the Child Concern Report about a Child Safety Officer suggesting to Mr Sandor that he should return to Europe.  In relation to that Ms Chapman says that she commonly asked callers if they could obtain support from their families, extended families or other social networks.  I take it from that evidence that it is likely that if Ms Chapman was the person who spoke to Mr Sandor on that day, she may have asked Mr Sandor those questions in the form recorded in the Child Concern Report. 

16. Alternatively, if Mr Sandor’s complaint is about the earlier statement recorded in the Child Concern Report whereby Mr Sandor says that a Child Safety Officer suggested that the family return to Europe and Ms Chapman was the person that he spoke to on that occasion, it seems likely that Ms Chapman was the person to whom Mr Sandor spoke.

17. Ms Chapman denies that she has ever told “a caller” to “go back where you came from”. 

18. Mr Sandor cross-examined Ms Chapman but her evidence remained intact after the cross-examination.

19. The Child Concern Report recorded that Mr Sandor was asked what it was that he wanted the Department to do for his family.  He is recorded as saying that he would be happy for the Department to take his son into care “if that was what needed to happen so that his son could be cared for”.  The Child Concern Report records that the CSO told Mr Sandor that children were only taken into care when they had been harmed or there was a significant risk of harm and there was no parent who was willing or able to care for them.

20. Mr Sandor was cross-examined about those entries in the Child Concern Report. He explained that because of his heavy accent, he thought that what he had said to the Child Safety Officer had been misconstrued. He explained that the caravan park in which he was living with his son was unsafe because drug deals were being carried out there. He wanted to move away. He was unsuccessful in securing alternate accommodation and he was concerned that if he continued to live in the caravan park with his son, the Department would take his son away.  He wanted the Department’s help.

21. Mr Sandor gave evidence before me orally. He does have a heavy Eastern European accent.  Notwithstanding that, there was little difficulty in understanding what he said.

22. It emerged in the course of Mr Sandor’s cross-examination of one of the respondent’s witnesses, Mr Brendan Hall, that the offensive statement alleged to have been made by Ms Chapman was made over a speaker telephone in the presence of Mr Sandor and Mr Hall.  Mr Sandor suggested to Mr Hall that they were meeting together in a room at the Department’s Maroochydore office and Ms Chapman was on the telephone.  Mr Hall denied that he had attended a meeting with Mr Sandor where a speaker telephone was used or that he had heard Ms Chapman at any stage say to Mr Sandor “Go back to where you came from” or words to that effect.

23. I am persuaded that it was probably Ms Chapman that Mr Sandor spoke to on 13 May, 2010.  It seems that Mr Sandor has no recollection of Ms Chapman in particular but that he has identified her from the Child Concern Report.  That there is a Child Concern Report prepared on the day on which the relevant conversations took place by Ms Chapman suggests that she was the Child Safety Officer that spoke to Mr Sandor.

24. I accept that the Child Concern Report accurately records the conversation that took place between the Child Safety Officer and Mr Sandor on that day. I am not satisfied that Mr Sandor has any clear recollection of that conversation which took place more than six years ago. Where Mr Sandor’s evidence departs from what is recorded in the Child Concerned Report, I prefer what is recorded in the Child Concern Report.

25. I am not satisfied on the balance of probabilities that Ms Chapman said to Mr Sandor “Go back to where you came from” or words to that effect either on 13 May, 2010 or at any other time.  I am satisfied that in the context of the conversation that took place between them and as recorded in the Child Concern Report, Ms Chapman asked Mr Sandor if he had family support in Europe.  In the context of the conversation recorded in the Child Concern Report and the purpose for which Mr Sandor was contacting the Department, an enquiry about the possibility of Mr Sandor and his son returning to Europe was not “racist” as Mr Sandor suggested to Ms Chapman (and as is recorded in the Child Concern Report). 

26. It is of course possible that Mr Sandor misconstrued what was said to him by Ms Chapman. Instead of hearing the words that she actually spoke, his perception was that she was telling him to go back to where he came from. Ms Chapman, and the respondent for that matter, are not responsible for any misconstruction that Mr Sandor might place upon the words that she spoke.

27. According to s.9(1) of the Racial Discrimination Act 1975 (Cth):

    It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

28. The statements which I think were likely to have been made by Ms Chapman and which are recorded in the Child Concern Report are acts for the purposes of s.9(1). They do not, however, involve the distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin.

29. I accept the respondent’s submission that an enquiry about the possibility that Mr Sandor access help from his immediate and extended family in Europe to assist him to care for his son was a perfectly reasonable enquiry at that point in time.  To make such an enquiry, even a suggestion, did not in my view, involve a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin.   

30. Moreover, Ms Chapman’s acts (statements) did not have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing of any human right or fundamental freedom enjoyed by Mr Sandor in the political, economic, social, cultural or any other field of public life. 

31. That is to say, I am not satisfied by making the statements that she did, or perhaps by suggesting that Mr Sandor consider returning to Europe to seek the assistance of his immediate and extended family to help him care for his son, she offended s.9(1) of the Racial Discrimination Act.

Disability Discrimination

1. In early 2012 Mr Sandor attended an information evening conducted by the respondent Department for people who were interested in becoming a foster carer for children in need of care and protection.  Mr Sandor gave to the respondent Department an expression of interest to become a foster carer. 

2. Mr Sandor did not hear back from the respondent Department about his expression of interest.  Accordingly he went to the Child Safety Support Centre in Maroochydore on 2 April, 2012 to ask about his expression of interest.  He did not have a prearranged appointment.  However, he was asked to return in about an hour’s time and he would be able to meet with someone. Mr Sandor did that. Upon his return, two officers of the Department met with him namely, Ms Sharon Richardson and Mr Brendan Hall.  Ms Richardson was a Child Safety Officer and Mr Hall was a Team Leader in the Investigations Assessment Team of the respondent Department.  There appears to be no contemporaneous note made of the meeting but, about a month later on 2 May, 2012 Ms Richardson sent an email to Ms Kristy Shillito setting out, in part, her recollection of the meeting. That email is in evidence.

3. At the meeting Ms Richardson said that she had told Mr Sandor that she had tried to contact him by telephone but she had been unable to do so.  He told Ms Richardson and Mr Hall that he simply needed to know whether the Department would permit him to become a foster carer.  Mr Sandor saw that there was a need for foster carers in the community.  Ms Richardson said to Mr Sandor that she was aware that he had a number of contacts with the respondent Department in previous years and that in 2010 he had notified the Department of the problems that he had in caring for his own son.  Ms Richardson referred to the fact that Mr Sandor had contacted the Department in 2010 and requested the Department to take his own son into care. 

1. Mr Sandor was cross-examined about that conversation, but could not recall it. However, I accept that it occurred.  Ms Richardson gave evidence that Mr Sandor said to her when she raised those matters with him “I do not have to discuss these matters with you”.  Mr Sandor agreed that he might have said to Ms Richardson in response that he thought that all government departments were discriminatory. 

2. Ms Richardson discussed with Mr Sandor, I am satisfied, information that the respondent Department had received that suggested that as late as the end of 2011 Mr Sandor’s accommodation was unstable.  She pointed out to Mr Sandor, I accept, that a manager approving Mr Sandor’s application to become a foster carer would need to see a history of stability with accommodation.  Mr Sandor denied that Ms Richardson said to him that it would be difficult for him to demonstrate to the Department that he had stability in his accommodation over several years because of his history.  Mr Sandor alleged in his cross-examination that in fact what Ms Richardson said was “you are mentally unstable so you can’t be a foster carer”.

3. I prefer Ms Richardson’s evidence that she pointed out to Mr Sandor that given his history with the Department and the difficulty that he had with his accommodation, it would be hard for him to demonstrate to the Department that he had the necessary stability to be a foster carer. I am not satisfied that Ms Richardson, or Mr Hall for that matter, said to Mr Sandor “you are mentally unstable so you can’t be a foster carer”.

4. Mr Sandor accepted that he said to Ms Richardson that he would not “even consider becoming a carer now”.  He told Ms Richardson that he was not interested in ever becoming a foster carer and Mr Sandor ended the meeting abruptly after 10 to 15 minutes. 

5. Ms Richardson’s evidence, which I accept, is that the next day Mr Sandor telephoned the Department and left a message for Ms Richardson asking that she provide him with a letter stating that he was mentally unstable to be a carer.  Ms Richardson did not accept that she had said anything like that to Mr Sandor when she sent Mr Sandor’s message to her coordinator.  Mr Sandor attended the Child Safety Support Centre on another occasion again requesting a similar letter.  Eventually, with her supervisor’s agreement, Ms Richardson sent a letter to Mr Sandor on 18 April, 2012 in the following terms:

   RE: Expression of Interest –Foster Care

   Dear Miklos

   Thankyou for you (sic) expression of Interest in becoming a foster carer and your attendance at an Information Session.  As you are now aware, foster carers are expected to attend specialist training as well as to proceed through a rigorous screening process to be approved as carers within the community.

   The children placed with foster carers have all been traumatised by the events in their lives, with the majority of these children not having received stability and consistency in parenting over significant periods of time.  For this reason we require that those proceeding through the process of approval as foster carers be able to show a significant period of stability and ability to cope within their daily lives.

   As discussed Departmental records indicate issues have arisen on several occasions in recent years in which you have indicated to Departmental persons that your ability to parent has been impacted and you have requested assistance and referrals.

   Whilst you have indicated all is now well with yourself and your son, the issues on record are relatively recent in nature.  For this reason the Department would not be seeking to proceed through to the next step of becoming an approved foster carer as you are not able to show at this point in time, a significant period of stability with your circumstances.

   As this point in time no further correspondence will be entered into in regards to this matter.  I wish you all the best.

6. In my view, Ms Richardson’s letter is consistent with the conversation that I have found she had with Mr Sandor on 2 April, 2012.  The letter does not mention Mr Sandor’s mental health but rather refers to his inability to parent his own son and his requests, reviewed by the Department as being recent for assistance and referrals.

7. I also have evidence from Brendan Hall who attended the meeting between Ms Richardson and Mr Sandor.  Mr Hall was familiar with Mr Sandor.  He attended the meeting with Ms Richardson and Mr Sandor on short notice.  Mr Hall swears and I accept, that he knew nothing about Mr Sandor’s mental health and had made no assumptions about it.  He had not seen any emails or other documents about Mr Sandor’s mental health when he attended at the meeting with Ms Richardson.  In his affidavit filed on 28 April, 2015 Mr Sandor sets out his case as follows:

   [10.] Disability discrimination occurred when the Department rejected my foster care application;

   a. The Department assumed I am living with mental instability.  The assumption was express on 2 April 2012 when officers, from the Department Ms Richardson and Mr Hall, told me the decision of the department to discontinue my foster care application.  (MKS 02).  In that meeting Ms Richardson told me the Department was notified by the Department of Communities Maroochydore Housing Service Centre I have mental issues.  Documents, case notes from the meeting was not confirming what Ms Richardson said however email correspondence between Department workers confirms the assumption which was the foundation to discontinue my application (MKS 03).

   b. The Department executed its decision on 2 April 2012.  The Departments conclusion was funded from case notes.  The Department draw that decision inter alia on an email which was send from Ms Atkinson to Ms Shillito and Ms Richardson on 31 January 2012 (MKS 03).  Furthermore correspondence between Melissa Hill (DCS) and Jodie Chapman shows concerns about my mental health; this was detected by the Department officers who have not held any certificate to be qualified to make that conclusion about my mental health (MKS 03).

8. Mr Sandor’s evidence is at odds with the evidence of Ms Richardson and the concession that he made in cross-examination that he had never made an application to be a foster carer.   The respondent Department did not discontinue Mr Sandor’s foster care application.  He never made a formal application although an application form was sent to him.

9. There is reference to Mr Sandor’s mental state in some of the documents that have been made available to Mr Sandor through the “Freedom of Information” process.  He refers to one of them in the extract I have set out above.  The first tranche of documents are dated in April, 2010.  Those documents (part of annexure “MKS03” to Mr Sandor’s affidavit filed on 28 April, 2015) record that a Notifier was concerned about Mr Sandor’s mental health.  There were two Notifiers that provided information on 1 April, 2010 according to the Department’s records and both had concerns about Mr Sandor’s mental state and his ability to look after his son.  One of the Notifiers said that the concerns arose from Mr Sandor calling “(redacted) and stating that he was at the end of his tether and not getting responses from the CSSC”.

10. The second document is an email dated 31 January, 2012 from a person called Melissa Atkinson to a person called Kristy Shillito and Sharon Richardson.  The subject of the email is described as “Re: NEW EOI – CP history” (which I take to mean new expression of interest – child protection history).  It is written in response to an email from Kristy Shillito.  The text of both emails is as follows:

    Shillito to Richardson and Atkinson:

    Hi Sharon,

    I checked all of the CP history on the system for all of the new ones and this was the only one with history. It sounds fairly concerning from 2010 back, around the fact that you can make an easy assumption that this man is looking at becoming a foster carer to get better housing.  Have a read (there are several intakes and CPCR’s) and let me know what you think? I think that we should just be upfront and contact him and let him know what we know and that we are concerned about his motivation.

    Atkinson to Shillito and Richardson

    Just had a look at them.  I think he may have mental health issues by the way the notifications read.

    I don’t think he will make the grade.

    I seem to recall he was doing a social work degree -

11. Ms Atkinson’s position and role are unclear but it seems that she was an employee of the respondent Department. 

12. Mr Sandor relies on both ss.5 and 6 of the Disability Discrimination Act 1992 (Cth). Those sections are in the following terms:

    5  Direct disability discrimination

    (1)  For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

    (2)  For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

    (a)  the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

    (b)  the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

    (3)  For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.

    6  Indirect disability discrimination

    (1)  For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

    (a)  the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

    (b)  because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

    (c)  the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

    (2)  For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

    (a)  the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

    (b)  because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

    (c)  the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

    (3)  Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.

    (4)  For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.

13. The word disability includes a disability that is imputed to a person: s.4 of the Disability Discrimination Act. Mr Sandor’s case is that a mental disability was imputed to him and the respondent discriminated against him both directly and indirectly by reason of that imputed disability.

14. However, Mr Sandor’s claim for disability discrimination cannot succeed.  There is no act that has been done by the Department which would attract the operation of that Act.  I do not accept that Mr Sandor’s mental health was discussed at the meeting with Ms Richardson and Mr Hall on 2 April, 2012.  I am not satisfied that they imputed to him any disability or made any assumptions about his mental health. The only reference to Mr Sandor’s mental health are in the notes which were made in 2010 and Ms Atkinson’s email of 2012.  The 2010 notes recorded concerns by “Notifiers”, the identity of whom has not been revealed.  Mr Sandor did not suggest that Ms Richardson was one of those Notifiers. There is no evidence that Ms Atkinson’s thoughts were adopted by Ms Richardson or Mr Hall or that either of them agreed with them. There is no evidence that Mr Hall knew about those thoughts.

15. I accept Ms Richardson’s evidence and Mr Hall’s evidence that there was no reference to Mr Sandor’s mental health in the meeting that took place on 2 April, 2012.  To the extent that Mr Sandor thinks that there was a reference to that it is something that he has inferred, unreasonably in my view, from what was said to him during the course of that meeting.  The respondent Department’s concern about Mr Sandor’s accommodation stability is borne out by the evidence.  There were reasons to be concerned about the instability in his accommodation.  I think it is more likely, and I am satisfied, that Mr Sandor has misconstrued what was said at that meeting that took place on 2 April, 2012 between he, Ms Richardson and Mr Hall. 

16. Moreover, at that stage, Mr Sandor had not made any formal application to become a foster carer.  In fact, he never made an application to be accepted as a foster carer.  The Department did not perform any act in respect of Mr Sandor which would attract the operation of the Disability and Discrimination Act.

Conclusions

1. In my view, Mr Sandor has not proved his case based on s.9(1) of the Racial Discrimination Act. There has been no contravention of that section by Ms Chapman as Mr Sandor alleges.

2. Further, to the extent that Mr Sandor might argue that the respondent Department has refused to provide him with services because of his race, colour, descent or national or ethnic origin, it is clear from the evidence that the respondent Department’s refusal was not based on any of those things.  Rather to the extent that the department refused to provide him with services those services were not provided to him because they were not within the remit of the respondent Department to provide.  There is nothing to suggest that Mr Sandor’s son had been harmed or was at a significant risk of harm sufficient to attract the intervention of the Department.

3. Further, Mr Sandor has not proved his case based on ss.5 and 6 of the Disability Discrimination Act. There has been no contravention of that section by Ms Richardson as Mr Sandor alleges.

4. At the conclusion of the hearing before me, counsel for the respondent provided extensive written submissions. In fairness to Mr Sandor, I permitted him time to properly consider those written submissions and to make a written response (and a further oral response) if he wished to do so. Mr Sandor filed written submissions. In those written submissions he traverses a number of matters under the heading “Responsibilities of the Department”.  He refers extensively to the APS Values and Code of Conduct in Practice, the Public Sector Ethics Act 1994 (Qld), the Public Service Act 1999 (Cth), the Public Service Act 2008 (Qld) and the Public Records Act 2002 (Qld). He makes extensive submissions suggesting that Ms Chapman, Ms Richardson and Mr Hall have failed to comply with the obligations that Mr Sandor alleges are imposed upon them by those statutory instruments. His case seems to be that because they did not comply with their obligations under those statutory instruments, his claims of unlawful racial and disability discrimination are likely to be true.

5. However, those statutory instruments are not relevant to Mr Sandor’s application as advanced before the court.  Some of the instruments to which Mr Sandor referred do not apply to the respondent or the respondent’s officers who are the subject of these proceedings.  In particular the Public Service Act 1999 (Cth), the Australian Public Service Values are set out in s.10 of the Public Service Act 1999 (Cth) and the Australian Public Service Code of Conduct set out in s.13 of the Public Service Act 1999 (Cth) do not apply. As the respondent points out the Act that directly governed their employment was the Public Service Act 2008 (Qld).

6. The application must be dismissed with costs.                 

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 12 September 2016.

Date: 12 September 2016