Sirohi v Director-General, Justice and Community Safety Directorate
[2019] ACAT 84
•18 September 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SIROHI v DIRECTOR-GENERAL, JUSTICE AND COMMUNITY SAFETY DIRECTORATE (Discrimination) [2019] ACAT 84
DT 28/2018
Catchwords: DISCRIMINATION – referral of complaint by the Human Rights Commission – race status in the area of provision of goods, services or facilities – application to strike out as frivolous or vexatious or lacking in substance – powers of the tribunal – principles applying to strike out applications – applicant unable to establish essential element relating to services or unfavourable treatment or order sought is stated reasonable act – application to strike out granted
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 32
Anti-Discrimination Act 1999 (Qld)
Crimes (Sentence Administration) Act 2005
Discrimination Act 1991 ss 8, 20
Equal Opportunity Act 1984 (WA)
Human Rights Commission Act 2006 ss 53A, 53E, 53CA, 78
Racial Discrimination Act 1975 (Cth) s 25X
Cases cited:Assal v Department of Health, Housing and Community Services [1990] HREOCA 8
Commissioner of Police v Mohamed [2009] NSWCA 432
Cooley and the Australian National University [2007] ACTDT 2
Ebber v Human Rights and Equal Opportunity Commissioner & Ors (1995) 129 ALR 455
Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
Gindy & Chief Minister& ACT Government & Ors [2011] ACAT 67
IW v City of Perth (1997) 191 CLR 1
Jamieson Mary v The Australian Workers Union & Anor [1999] VCAT 628
Liu v The University of Melbourne [2002] VCAT 896
McGlade v Human Rights and Equal Opportunity Commission & Anor (2000) 63 ALR 147
Mewett v University of Canberra [2018] ACAT 61
Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132
R v Entry Clearance Officer, Bombay, Ex parte Amin [1983] 2 AC 818
Rainsford v Victoria (2007) 167 FCR 1State Electricity Commission v Rabel [1996] 1VR 102
State of New South Wales v Whiteoak [2014] NSWCATAP 99
The Owners Corporation of Strata Plan 4521 v Zouk & Anor [2007] NSWCA 23
Toodayan & Anor v Anti-Discrimination Commissioner Queensland [2018] QCA 349
Tribunal:Presidential Member E Symons
Date of Orders: 18 September 2019
Date of Reasons for Decision: 18 September 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 28/2018
BETWEEN:
NEELANDER SIROHI
Applicant
AND:
DIRECTOR-GENERAL,
JUSTICE AND COMMUNITY SAFETY DIRECTORATE
Respondent
TRIBUNAL:Presidential E Symons
DATE:18 September 2019
ORDER
The Tribunal orders that:
Upon being satisfied that the application is frivolous or vexatious and lacking in substance it is dismissed pursuant to section 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008.
………………………………..
Presidential Member E Symons
REASONS FOR DECISION
Background
Mr Sirohi (complainant/applicant) lodged a discrimination complaint dated 24 May 2018 under the Human Rights Commission Act 2006 (HRC Act) of unlawful discrimination contrary to the Discrimination Act 1991 (Discrimination Act) with the ACT Human Rights Commission (HRC). The complaint was against the Alexander Maconochie Centre (AMC) where the applicant was serving a four-year custodial prison sentence for sexual offences. The Director General, Justice and Community Safety Directorate is the respondent (respondent) in these proceedings.
In November 2017 the complainant was admitted to the Adult Sex Offenders Program (ASOP) at AMC. ASOP is a program provided by the respondent under the Crimes (Sentence Administration) Act 2005 (CSA Act). In January 2018 the complainant was exited from the ASOP based on his security classification being upgraded as the result of his involvement in an incident with another detainee. He made several requests to be re-admitted to ASOP as he wished to apply for parole. He was not re-admitted to ASOP.
In the complaint to the HRC the applicant identified the relevant protected attribute as “race” (section D.1). He did not identify any “Area of Discrimination” (Section D.2). In section F.3 he identified a number of events relating to his entry into, and his later exclusion from ASOP. In section F.4 he identified the impact as a denial of a right to do ASOP, an increase in his stress and mental health issues, isolation and self-doubt. He claimed that “the decision … not to allow me to participate in adult sex offender programs were discriminatory. … I think I have been treated unfairly by these programmers and facilitators [at AMC].”[1] He identified his proposed relief as being entry, and possible completion, of ASOP before he made an application for parole in section F.5.
[1] Applicant’s letter to the tribunal, respondent’s documents in support of strike out application, filed 23 July 2019 pages 34-35
On 20 November 2018 the HRC decided, pursuant to section 78(1)(f) of the HRC Act, that conciliation “is unlikely to be successful as a means of resolving this complaint” and closed the applicant’s complaint.
At the complainant’s request, the HRC referred the complaint to the ACT Civil and Administrative Tribunal pursuant to section 53A of the HRC Act on 23 November 2018.
The complainant was granted parole in February 2019 without being formally readmitted to ASOP. As an unlawful non-citizen, having lost his visa as the result of his conviction, he was returned to India.
In these reasons a reference to the ‘tribunal’ or ‘ACAT’ refers to the ACT Civil and Administrative Tribunal generally and ‘Tribunal’ refers to the member hearing this matter.
The Tribunal proceedings
The tribunal stated in Mewett v University of Canberra:[2]
The Tribunal regards complaints referred by the Commission under section 53A as applications made to the Tribunal under section 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). The complainant becomes the applicant for the purposes before the tribunal. The person or entity complained about is the respondent. This is consistent with section 53C of the HRC Act which provides that the parties to tribunal proceedings on a complaint referred to the tribunal, are the complainant and the person complained about.
[2] [2018] ACAT 61 at [11]
The applicant’s application was listed for directions hearings in the tribunal on 21 December 2018, 21 January 2019, 14 March 2019 and 1 April 2019. The applicant appeared by telephone at the hearings on 21 January 2019 and 1 April 2019. He was directed to file a document setting out what orders the Tribunal should make.
On 23 April 2019 the applicant emailed the tribunal that he sought:
a certificate [from the respondent] that [I] have successfully completed ASOP. … I need that certificate which tell to authorities and everyone else, I am rehabilitated, for my crime (errors in original) …[3]
[3] Applicant’s email to the tribunal dated 23 April 2019, respondent’s documents in support of strike out application, filed 23 July 2019 at page 42
On 12 June 2019 the respondent filed an application for interim or other orders (summary dismissal application) in which it sought:
1. That the application, insofar as it seeks an order that the respondent issue the applicant a certificate that he has been rehabilitated, be struck out;
2. In the alternative, that the application be dismissed without further hearing.[4]
[4] Respondent’s application for interim or other orders filed 12 June 2019
On 8 July 2019, the summary dismissal application was set down for hearing on 23 July 2019 and a timetable was set for each party to file submissions.
The applicant emailed the Tribunal on 23 July 2019 stating:
I can’t attend the meeting today because I don’t have credit in my phone to call your number.
The Tribunal proceeded with the hearing of the summary dismissal application, ex parte, on 23 July 2019. Mr Hancock represented the respondent. The hearing proceeded on the basis of the written and oral submissions. At the conclusion of the hearing the Tribunal made the following directions:
NOTING that the applicant informed the Tribunal by email on 23 July 2019 that he can’t attend the meeting today because I don’t have credit in my phone to call your number the Tribunal DIRECTS:
1. A copy of the transcript of the hearing on 23 July 2019 be provided to the Applicant with a copy of these Directions.
2. The Applicant is to file with the Tribunal and give to the Respondent, by close of business, 10 August 2019:
a.Any submissions in reply to the Respondent’s submissions filed on 18 July 2019 in support of the interim and other orders application; and
b.Any submissions in relation to the respondent’s submissions to the Tribunal on 23 July 2019, as set out in the transcript.
3. If the Applicant does not comply with Direction (2) above by 10 August 2019, the Tribunal to decide the interim and other orders application on the documentation which has been filed with the Tribunal and the Respondent’s submissions on 23 July 2019.
On 26 July 2019 the tribunal emailed a copy of the orders and the transcript for 23 July 2019 to the applicant. The applicant replied by email on 27 July 2019 stating:
Please someone can tell me when we have a the next hearing for that and I think, I have done enough submission in this matter but if it is require I will send it to ACAT.
I have an intention to be part of the next hearing and hear and say. decision should not be make without hearing me and I was available in my all hearing except the last two hearing because of my work commitment and second I didn’t have enough credit to call you. They were genuine issues.
ACAT has to at lest understand my situation I am living overseas now and I am living in poor country but I have face discrimination in Prison and that of care of ACAT to arrange a platform to those who felt marginalized in equal society like Australia just because some people misused their power. I think in the case of mine court should call me or arrange some other method to communicate because ACAT has a duty of care to protect everyone from discrimination (any kind of that)[5] (errors in original)
[5] Email from Mr Sirohi to the tribunal on 27 July 2019
The tribunal replied by email to the applicant on 31 July 2019 setting out Orders (2)(a) and (b) made on 23 July 2019. The applicant emailed the following reply to the tribunal on 2 August 2019:
…I don’t want to respond because I have done response many time and I buzy 20 hours per day I can explain it everything through phone that’s all I can do.[6] (errors in original)
[6] Email from Mr Sirohi to the tribunal on 2 August 2019
The Tribunal has decided this matter, in accordance with Order 3 made on 23 July 2019, on the transcript of 23 July 2019 and the documentation filed with the Tribunal. The applicant filed the following documentation:
(a)Complaint form and annexures dated 24 May 2018.
(b)Application for parole and supporting documents dated 8 October 2018.
(c)Points of claim filed 7 March 2019.
(d)Email to tribunal dated 23 April 2019 stating his reasons for asking for ASOP certification.
(e)Submissions on the power to order a certificate dated 28 April 2019.
The respondent filed the following documentation:
(a)Response to points of claim filed 11 April 2019.
(b)Emails between Nathan Hancock and the applicant dated 27 April 2019 and 28 April 2019.
(c)Application for interim or other orders.
(d)Respondent’s submissions in support of application for interim orders dated 18 July 2019.
Relevant Law
In its strike out application the respondent relied on section 32 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) which provides:
Dismissing or striking out applications
(1) This section applies if the tribunal considers that an application, or part of an application is––
(a)frivolous or vexatious; or
(b)lacking in substance; or
(c)otherwise an abuse of process; or
(d)made by a person who has been dealt with by a court or tribunal in Australia as frivolous or vexatious.
(2) The tribunal may, by order, do 1 or more of the following:
(a)refuse to hear the application or part of the application;
(b)dismiss the application or part of the application;
(c)direct that the person who made the application not make a subsequent application to the tribunal of the kind stated in the direction—
(i)within a stated period of time; or
(ii)without the leave of the tribunal.
Note If the application is for review of a decision under the Heritage Act 2004, the or the Tree Protection Act 2005, the tribunal may also order the applicant to pay costs (see s 48 (2) (d)).
(3) The tribunal may make an order under subsection (2) on its own initiative or on application by a party.
(4) The tribunal may vary or revoke a direction given under subsection (2) (c)—
(a)on its own initiative; or
(b)on application by the person who is the subject of the order.
Note The tribunal must observe natural justice and procedural fairness (see s 7).
The meaning of discrimination is found in Section 8 of the Discrimination Act 1991 (Discrimination Act) which provides:
Meaning of discrimination
(1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
(3) For this section, 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 1 or more protected attributes.
(4) However, a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.
(5) In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include—
(a)the nature and extent of any disadvantage that results from imposing the condition or requirement; and
(b)the feasibility of overcoming or mitigating the disadvantage; and
(c)whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposes to impose, the condition or requirement. (emphasis not in original)
The applicant alleges that the discrimination occurred in relation to the provision of services. Section 20 of the Discrimination Act deals with discrimination in relation to goods, services and facilities and provides:
It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person—
(a) by refusing to provide those goods or services or make those facilities available to the other person; or
(b) in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or
(c) in the way in which the provider provides those goods or services or makes those facilities available to the other person. (emphasis not in original)
Section 53CA of the HRC Act refers to the onus of establishing a discrimination complaint and provides:
(1) This section applies to a discrimination complaint, referred to the ACAT under this division, about discrimination by a person against another person by—
(a)treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person ( direct discrimination ); or
(b)imposing, or proposing to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because of a protected attribute of the other person (other than a condition or requirement that is reasonable in the circumstances) ( indirect discrimination ).
(2) It is a rebuttable presumption that discrimination has occurred if the complainant—
(a) establishes that—
(i)for a complaint about direct discrimination—the treatment or proposed treatment is unfavourable; and
(ii)for a complaint about indirect discrimination—the condition or requirement has, or is likely to have, an effect of disadvantaging the other person; and
(b) presents evidence that would enable the ACAT to decide, in the absence of any other explanation—
(i)for a complaint about direct discrimination—that the treatment or proposed treatment is because of a protected attribute of the other person; or
(ii)for a complaint about indirect discrimination—that the effect of disadvantaging the other person is because of a protected attribute of the other person.
(3) The presumption under subsection (2) is rebutted if the person complained about establishes that—
(a) for a complaint about direct discrimination—the treatment is not because of a protected attribute of the other person; or
(b) for a complaint about indirect discrimination—the effect of disadvantaging a person is not because of a protected attribute of the other person.
Note The onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see Discrimination Act 1991, s 70).
(4) In this section:
“protected attribute” means a protected attribute under the Discrimination Act 1991
Section 53E of the HRC Act sets out the matters to be considered and the kinds of orders the tribunal can make in discrimination proceedings. It provides:
53E Kinds of orders—unlawful acts under the Discrimination Act
(1) This section applies if—
(a)the commission refers a complaint to the ACAT under this division; and
(b)the ACAT is satisfied that the person complained about engaged in an unlawful act.
(2) The ACAT must make 1 or more of the following orders:
(a)that the person complained about not repeat or continue the unlawful act;
(b)that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;
(c)unless the complaint has been dealt with as a representative complaint—that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
(3) In making an order under subsection (2) (c), the ACAT must consider—
(a)the person's right to equality before the law and the impact of the discrimination on the enjoyment of that right; and
(b)the inherent dignity of all people and the impact of the discrimination on the person's dignity; and
(c)the public interest in ensuring an appropriate balance between the right to equal and effective protection against discrimination and equality before the law without distinction or discrimination and other human rights; and
(d)the nature of the discrimination; and
(e)any mitigating factors.
Examples—par (b)—impact of discrimination
distress, humiliation, loss of self-esteem, loss of enjoyment of life
Example—par (c)—other human rights
freedom of expression
Examples—par (d)
serious or repeated discrimination, intentional or malicious discrimination, discrimination on the grounds of 2 or more protected attributes under the Discrimination Act 1991
Examples—par (e)
a public apology, systemic changes to protect against further discrimination
(4) The commission may, with the ACAT's consent, intervene in a complaint to make submissions about an order under subsection (2) (c).
(5) In this section:
(6) “representative complaint” means a complaint that is dealt with by the commission as a representative complaint under section 71.
Consideration
Section 8(2) of the Discrimination Act provides that direct discrimination may arise where a person treats another person unfavourably because, or on the basis that, they have a protected attribute. The complainant must show that the true basis or real reason for the unfavourable treatment was the protected attribute. Section 8(3) provides that indirect discrimination may occur where a person imposes a condition or requirement that disadvantages a person because they have a protected attribute. The complainant must identify the condition or requirement in question, the nature and extent of any compulsion and the nature and extent of any disadvantage that will result. The unfavourable treatment must occur in an area of public life. The applicant alleges that ‘services’ is the relevant area of public life.
Is ASOP a service?
The respondent denies that ASOP is a ‘service’ for the purpose of section 20 of the Discrimination Act. The respondent referred the Tribunal to decision in IW v City of Perth[7] where the High Court held that the word ‘service’ in the Equal Opportunity Act 1984 (WA) had a wide and ordinary meaning. The respondent submitted not all government activities involve the provision of a ‘service’ in discrimination law and many activities involving an exercise of statutory functions will not involve ‘services’. The respondent relied upon the following statements by Brennan CJ and McHugh J in IW v City of Perth:
…given the artificial definitions of discrimination in the Act and the restricted scope of their applications, the court or tribunal should not approach the task of construction with any presumption that conduct which is discriminatory in its ordinary meaning is prohibited by the Act. The Act is not a comprehensive anti-discrimination or equal opportunity statute. … As the evils of discrimination in our society have become better understood, legislatures have extended the scope of the original anti-discrimination statutes. Many persons think that anti-discrimination law still has a long way to go. In the meantime, courts and tribunals must faithfully give effect to the text and structure of these statutes without any preconceptions as to their scope. But when ambiguities arise, they should not hesitate to give the legislation a construction and application that promotes its objects. Because of the restricted terms of a particular statute, however, even a purposive and beneficial construction of its provisions will not always be capable of applying to acts that most people would regard as discriminatory.[8]
[7] IW v City of Perth (1997) 191 CLR 1
[8] IW v City of Perth (1997) 191 CLR 1, 14-15
In IW v City of Perth the members of the High Court disagreed about whether there had been a refusal of a service, and if there had, how the service should be characterised. Brennan CJ and McHugh J concluded that in exercising its discretion to determine whether or not to grant planning permission, the council was acting as a deliberative body and did not perform a service.[9] Dawson, Gaudron and Gummow JJ concluded that the service was the act of considering the application[10] and Kirby J found that the service was not the consideration, but the decision in relation to the application.[11]
[9] IW v City of Perth (1997) 191 CLR 1, 12-17
[10]IW v City of Perth (1997) 191 CLR 1, 24 per Dawson and Gaudron JJ, at 44-45 per Gummow J
[11] IW v City of Perth (1997) 191 CLR 1, 72
The New South Wales Civil and Administrative Tribunal (NCAT) considered whether the classification of inmates were ‘services’ for the purpose of the Anti-Discrimination Act 1977 (NSW) in State of New South Wales v Whiteoak[12] (Whiteoak). President Wright stated:
158. … if a governmental function or statutory duty is being performed and the persons affected have no ability to decide whether to accept or reject what is done or the outcome, it is unlikely that services are being provided in those circumstances.
…
160. … When a governmental function or statutory duty is being performed for a purpose other than benefitting the relevant person and any outcome is imposed on, rather than just being made available to, that person, it is unlikely that this amounts to “services” being “provided”. Subject to any contrary requirement or approach in the authorities, providing “services” should be construed accordingly.
[12] [2014] NSWCATAP 99
The question of whether services were provided is a question of fact. [13] It is not a question of law.[14]
[13] IW v City of Perth (1997) 191 CLR 1, 44
[14] Rainsford v Victoria (2007) 167 FCR 1 at [72], [75]
The respondent submitted[15] that some powers and functions in the public sector have no parallel with the goods, services and facilities provided by the private sector and will fall outside the statutory definition. While having helpful or beneficial features, the following functions do not constitute the provision of a ‘service’ for the purposes of discrimination law:
(a)The determination of applications in the exercise of statutory power or duty.[16]
(b)The provision of immigration services, other information and assistance to clients.[17]
(c)The provision of policing services to the community, other than those services arising from the duty to protect individuals against harm or threats.[18]
(d)The provision of custodial services, other than incidental services like transport.[19]
[15] Respondent’s submissions in support of application for interim orders at [24], [25]
[16] IW v City of Perth (1997) 191 CLR 1
[17] R v Entry Clearance Officer, Bombay, Ex parte Amin [1983] 2 AC 818
[18] Commissioner of Police v Mohamed [2009] NSWCA 432 at [36], [39]
[19] Rainsford v Victoria (2007) 167 FCR 1
In relation to (d) in the previous paragraph the Tribunal notes that Sundberg J of the Federal Court of Australia said in Rainsford v Victoria:[20]
[Prison Authorities’] obligations are not just to the welfare of prisoners but also to the general public and prison staff through providing adequate security measures, to other prisoners by ensuring that prisoners do not harm one another, and to the general good governance of the prison. To suggest that transport of prisoners or cell accommodation is a service to prisoners is to ignore the fact that they are functions performed in order to comply with the sometimes competing obligations of prison management to its prisoners, its staff, the public and the good governance of the prison.
[20] Ibid at [79]
Having considered all of the documentation available to the Tribunal, the Tribunal is not satisfied that provision of ASOP at the AMC is a service within the meaning of section 20 of the Discrimination Act. This finding is fatal to the applicant’s application.
In case a contrary view should be taken on this point, I will consider the other aspects of the applicant’s claim.
Was the applicant subjected to unfavourable treatment?
The Discrimination Act does not include any definition of ‘unfavourably’ or ‘unfavourable treatment’. However, a body of case law has developed which gives meaning to the term. In Prezzi, Patricia Anne and Discrimination Commissioner[21] (which was affirmed in Edgley v Federal Capital Press of Australia Pty Ltd[22]) President Curtis said:
The ACT Discrimination Act ... does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. All that is required is an examination of the treatment accorded the aggrieved person or the conditions upon which the aggrieved person is or is proposed to be dealt with. If the consequence for the aggrieved person of the treatment is unfavourable to that person, or if the conditions imposed or proposed would disadvantage that person there is discrimination where the treatment is given or the condition is imposed because of the relevant attribute possessed by the aggrieved person.
[21] [1996] ACTAAT 132 at [22] – [24]
[22] [2001] FCA 379 at [54] – [57]
Unfavourable treatment includes acts or omissions which result in some detriment, being loss, damage or injury. In Cooley and the Australian National University[23], a claim brought in the then ACT Discrimination Tribunal, Deputy President Peedom said:
A detriment involves some loss, or damage or injury (see Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 and Sivananthan v Commissioner of Police [2001] NSW ADT 44 at 41) and is broad enough to cover any disadvantage, as long as it is real and not illusory. Whether a detriment has been suffered is to be determined objectively and not by the subjective perceptions of either the complainant or the respondent. (see Ellis v Mount Scorpus Memorial College [1996] VADT 16 (29 March 1996)).
[23] [2007] ACTDT 2
The respondent submitted[24], when the Tribunal is determining whether the alleged unlawful acts constitute unfavourable treatment, the task should be whether the decisions made were adverse to the applicant and his interests, having regard to all of the relevant facts and circumstances.
[24] Respondent’s submissions in support of application for interim orders
The alleged unfavourable treatment in this case was:
(a)the applicant’s exclusion from ASOP in January 2018 as the result of a change to his security classification and his accommodation which resulted from a report prepared by two of the applicant’s program facilitators. The applicant alleged the report was based on factual errors and involved a misuse of power;
(b)on 23 May 2018 the applicant was told if he wanted to do ASOP he would first have to do the Cognitive Self Change Program (CSC). The applicant alleged he had already spent a year in CSC and had completed CSC;
(c)on 27 July 2018, the applicant alleged he was told he could apply to re-enter ASOP if he had good behaviour for three months and on 27 October 2018 he asked if could be re-entered to ASOP but that nothing happened; and
(d)the applicant was entitled, and at all times was available, to do ASOP.
The applicant asks the Tribunal to infer that he was exited from ASOP, and denied re-entry to ASOP, on the basis of a desire to frustrate or delay his release on parole.
The respondent denies that the decision to exit the applicant from ASOP or to impose a requirement to demonstrate good behaviour involved any ‘unfavourable treatment’.
The applicant’s exit from ASOP followed an incident with another detainee which resulted in a change of security classification and accommodation for the applicant. As a result, he was no longer able to continue ASOP. He was also exited from ASOP because of behavioural issues.
There was no evidence that could satisfy the Tribunal that the report referred to in [36a] above was based on factual errors and/or involved a misuse of power. The program facilitators report recommended:
(a)that the applicant complete treatment to address his criminogenic risk;
(b)noted that he had previously poor behaviour and poor engagement with ASOP; and
(c)recommended that he sign behavioural contract before re-entry into ASOP.
The Tribunal noted that the applicant had not applied to re-enter ASOP as at 18 November 2018. His allegations of unfavourable treatment were based on his own subjective perceptions.
The Tribunal is not satisfied that the respondent’s decision to exit the applicant from a program on the basis of his security classification and behaviour involved any unfavourable treatment. Nor is the Tribunal satisfied that the respondent’s advice to the applicant that he would need to demonstrate good behaviour for a period of three months (see [36c] above) and then discuss a new referral to ASOP with the respondent involved any unfavourable treatment.
The Tribunal agrees with the respondent that the decisions to exit the applicant from ASOP, in the particular circumstances of this matter, and not to allow him to re-enter ASOP unless he completes a period of good behaviour and makes an application, is directed at assisting the applicant, then a detainee, address his behaviour and his criminogenic risk; it is not unfavourable treatment to make these decisions in this context. The Tribunal finds that the applicant’s allegation that he was denied re-entry to ASOP on the basis of a desire to frustrate or delay his release on parole lacks substance.
Strike out and summary dismissal
In its application for interim or other orders the respondent relies on section 32(1)(a) of the ACAT Act, that “the application or part of the application is frivolous or vexatious” or on section 32(1)(b), that “the application or part of the application is lacking in substance.”
The tribunal considered an application to strike out a discrimination application as frivolous or vexatious in Gindy & Chief Minister & ACT Government & Ors (Gindy)[25]. The then President of the tribunal, President Crebbin, said at [23]:
A complaint cannot be dismissed unless it is clear that the complainant has no arguable case which should be allowed to be resolved at hearing. The onus is on the person applying for the dismissal to establish that that is the case.
‘Frivolous or vexatious’
[25] [2011] ACAT 67 at [23]
In Gindy, President Crebbin considered the phrase ‘frivolous or vexatious’, and said (omitting footnotes):
18. The phrase “frivolous and vexatious” is a term of art that has been considered in many cases. In Pitt v One Steel Reinforcing Pty Ltd, Gray J said:
The word “frivolous”, especially when coupled with “vexatious” is a technical legal term, in substance, meaning the absence of a cause of action.
19. It was recently considered by Member Chenoweth in the matter of Council of the Law Society v The Legal Practitioner reported at [2011] ACAT 49, Mr Chenoweth said:
The use of the term “frivolous or vexatious” has a pejorative note to it. It has the implication that an application has been made for no good reason at all, or for a purpose designed to harass or annoy. The term is also used to describe a cause of action which has no reasonable prospects of success.
20. Mr Chenoweth noted the comments made by President Fitzgerald in the matter of re Cameron, to the effect that proceedings may be regarded as vexatious if there is a lack of reasonable grounds for the application sought to be made. Mr Chenoweth also referred to the comments of Refshauge J in the ACT Court of Appeal matter of King v Higgins [2009] ACTSC 153.
21. The phrase has been used in a number of cases in the context of an action designed to harass or annoy a party. I accept that that meaning is not relevant in these matters. I accept that the applicant genuinely believes that she has been subject to unfavourable treatment and that she has, to that extent, a genuine grievance.
The respondent accepts[26] and the Tribunal agrees, that the applicant in the present matter genuinely believes he has been subject to unfavourable treatment and that he has, to some extent, a grievance.
[26] Respondent’s submissions in support of application for interim orders at [37]
In considering applications under section 32 of the ACAT Act, the Tribunal has adopted[27] the approach taken by the Victorian Court of Appeal in The State Electricity Commission of Victoria v Andrew Rabel and the President & Members of the Equal Opportunity Board [1996] VSC 78 (Rabel),[28] summarised by the Victorian Civil and Administrative Tribunal in Jamieson Mary v The Australian Workers Union & Anor (Jamieson Mary)[29]:
[27] Shammas v Canberra Institute of Technology [2014] ACAT 2 at [68]; Mewett v University of Canberra [2018] ACAT 61 at [33]; Cheluvappa v University of Canberra [2018] ACAT 108 at [39]
[28] [1996] VSC 78
[29] [1999] VCAT 628
(1) Section 109[30] permits an application to be made by the respondent at a preliminary stage; s75[31] permits an order to be made at any time including on the Tribunal's own initiative. The procedure to be adopted is in the Tribunal's discretion. The proceeding may be determined on the pleadings and submissions alone, or by allowing the parties to put forward further material, including affidavits and oral evidence.
[30] Equal Opportunity Act 1995 (Vic)
[31] Victorian Civil and Administrative Tribunal Act 1998
(2) If in a proceeding a complainant indicates to the Tribunal that the whole of their case is contained in the material put before the Tribunal, the Tribunal is entitled to determine the matter by asking whether, on all the material before it, there is a question of real substance to go to a full hearing.
(3) However, if a complainant indicates that there is other evidence they can call to support their claim and the Tribunal does not permit that evidence to be called, the Tribunal cannot determine the matter on the basis that the complainant's material contains the whole of their case.
(4) A proceeding to dismiss or strike out a complaint is similar to an application to the Supreme Court in civil proceedings for summary dismissal. Both are designed to prevent abuses of process. However, it is a serious matter for the Tribunal, in an interlocutory proceeding which will generally not involve the hearing of oral evidence, to deprive a litigant of the chance to have their complaint heard in the ordinary course.
(5) In an application, the respondent bears the onus of showing that the complainant's case ought not be allowed to proceed. In a s75 hearing where the Tribunal proceeds on its own initiative the Tribunal must be satisfied on all the material before it that the complaint should not be allowed to proceed.
(6) For a dismissal or strike out to succeed, a respondent must show, or the Tribunal when proceeding on its own initiative must be satisfied, that the complainant's case is obviously hopeless and untenable or that it could on no reasonable view justify relief. The Tribunal's power to dismiss or strike out a complaint should however be exercised with caution and consistently with the objectives of the Act.
(7) In dealing with a dismissal or strike out matter a clear distinction must be drawn between the complaint or claim itself and the evidence which is to be given in support of it. A complaint cannot be dismissed or struck out as lacking in substance merely because it does not in itself contain the evidence supporting the claims.
(8) A complaint can be dismissed or struck out if it is obviously unsustainable in law or in fact. This will include, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action, or where the respondent can show a defence sufficient to warrant the summary termination of the complaint.
(9) The Tribunal should not apply technical, artificial or mechanical rules in coming to a view about the case that a complainant wishes to advance.
(10) Two additional comments should be made. First, if the material before the Tribunal shows that there is a dispute between the parties as to a fact in issue and the material does not assist the Tribunal to resolve the dispute, then it would be difficult for the Tribunal to be satisfied that the complaint is so lacking in substance that it should be dismissed or struck out.
(11) Second, if the respondents have satisfied the Tribunal that the complaint or any part of it is frivolous, vexatious, misconceived or lacking in substance in respect of any element essential for the complainant to prove in order to substantiate the complaint at a full hearing, then the complaint or the relevant part of the complaint should be dismissed or struck out.
On a strike out application, it is appropriate for the respondent to rely on the entirety of the submissions and evidence filed by the applicant, accepting the applicant’s case on that basis at its highest, accepting (in effect) any of the factual assertions made by the applicant.[32] In Rabel, Ormiston J said:
Though evidence may be called [by the respondent] it should be confined to that which shows that the complaint is either frivolous or vexatious … or that which shows that the complaint is so lacking in substance that it ought to be summarily terminated, together with any necessary answering material from the complainant.[33]
Lacking in substance
[32] NSW Bar Association v Muirhead (1988) 14 NSWLR 173, 177
[33] Rabel [1996] VSC 78 at [13]
The term ‘lacking in substance’ has been taken to mean an application which, after an applicant’s evidence has been considered, contains nothing of substance for a respondent to answer. In Assal v Department of Health, Housing and Community Services (Assal)[34] the then President of the Human Rights and Equal Opportunity Commission, President Sir Ronald Wilson, analysed the phrase ‘lacking in substance’ in section 25X of the Racial Discrimination Act 1975 (Cth) and said:
It is possible that a complainant’s case will exhibit substance, notwithstanding that the ultimate outcome remains clouded in doubt. Bearing in mind that the power to dismiss a complaint summarily may be exercised at any stage of an inquiry, I believe it may be inappropriate in some case to relate the criterion of ‘lack of substance’ to the complainant’s prospects of success at all. It may sometimes be sufficient, once the complainant has had every opportunity to identify the subject matter of the complaint and produce all available evidence in support, simply to ask the question whether there is anything of substance which requires an answer from the respondent. Even this brief discussion serves to confirm me in the belief that it is unwise to postulate any rules intended to guide the exercise of the power in question. That exercise must be governed by the words of the statute itself in the context of the particular circumstances of the case.
[34] [1990] HREOCA 8
VCAT Deputy President Macnamara referred to President Wilson’s statement, in the preceding paragraph, in Liu v The University of Melbourne[35] (Liu) when considering an application by the University of Melbourne to summarily dismiss Dr Liu’s complaint of racial discrimination. Deputy President Macnamara referred to the various things that are to be regarded as attributes in section 6 of the Equal Opportunity Act 1995 (Vic) (EOA) at [18] which included ‘race’ and said:
The EOA does not mean that any person who suffers adverse treatment, perhaps treatment which is in breach of the rule of natural justice, tortious, criminal or otherwise wrongful has suffered discrimination merely because that person has a particular attribute. All of us have some of these attributes … The question is, is there substance to the contention (and by that I mean, in terms of Sir Ronald Wilson’s formulation, material sufficient to call for an answer) that that adverse treatment derives from a particular attribute, namely his race or the imputive disability.
[35] [2002] VCAT 896
Deputy President Macnamara found that the totality of matters of which Dr Liu complained did not have sufficient substance to prove to any reasonable tribunal that he was the victim of racial discrimination and summarily dismissed the complaint.
The respondent referred[36] the Tribunal to a number of decisions where the term, ‘lacking in substance’ has been considered, namely:
[36] Respondent’s submissions in support of application for interim orders at [40] –[45]
(a)In Liu VCAT concluded an application which is “obviously hopeless, obviously unsustainable in fact or law or on no reasonable view can justify relief or is bound to fail” but is not limited to cases where “a complaint can be said to disclose no reasonable cause of action or where a respondent can show a good defence sufficient to warrant the summary termination of the proceeding”.[37]
[37] At [11]
(b)The NSW Court of Appeal in The Owners Corporation of Strata Plan 4521 v Zouk & Anor[38] said:
It would be inappropriate, given the extraordinary powers triggered by a finding that an application is lacking in substance, to attribute to the phrase a meaning other than “not reasonably arguable”. That is, a meaning not dissimilar to “frivolous, vexatious, misconceived”, the words which precede the phrase.
(c)The Victorian Supreme Court suggested in Rabel it refers to an application which relies on an “untenable proposition of law or fact” that would ordinarily justify summary judgment.
(d)The Queensland Court of Appeal considered a similar term, ‘misconceived, lacking in substance’ in Toodayan & Anor v Anti-Discrimination Commissioner Queensland[39] in the context of a similar law, the Anti-Discrimination Act 1999 (Qld) (ADA), and said:
A complaint will be “misconceived” if it is based on a false conception or notion such as an allegation of discrimination on the basis of an attribute that is not protected by the ADA and “lacking in substance” where the detail provided in the complaint fails to point to conduct on the part of the named respondent that is capable, if proved, of amounting to a contravention under the ADA.
(e)In Assal President Wilson thought that the term pointed to a lower bar or threshold than “no reasonable prospects of success” and would encompass a complaint “which presents no more than a remote possibility of merit or which does no more than hint at a just claim”, or alternatively, a complaint which did not reveal “anything of substance which requires an answer from the respondent”. This approach has been endorsed in Ebber v Human Rights and Equal Opportunity Commissioner & Ors[40] where Justice Drummond said:
The complainant has the onus throughout of proving each of the matters that must be established before the Commissioner can reach a conclusion that unlawful discrimination has occurred … A complainant must therefore have at the outset of the enquiry into his complaint sufficient material … to show that he has more than a remote possibility of a well-founded claim, if he is to defeat an application for summary dismissal of the case that can be made at the start of the inquiry.
(f)In McGlade v Human Rights and Equal Opportunity Commission & Anor[41] (McGlade) Justice Carr of the Federal Court of Australia said:
At the summary dismissal stage, I think that the Commission needed to be satisfied that even if the complaint were substantiated after a hearing, there would be no arguable case for a determination which included one or other of the declarations referred to in s. 25Z(1)(b) [of the Racial Discrimination Act 1975 (Cth)] … What needed to be demonstrated was what Ormiston JA described in Rabel as “… facts which would undoubtedly deny the complainant relief, that the complaint is so hopeless that it should be summarily brought to an end.”
(g)In McGlade the Human Rights and Equal Opportunity Commission had determined at first instance that, even if the complaint was made out, the orders sought would have been “inappropriate”. On appeal the Federal Court held that “inappropriate” did not meet the test for summary dismissal.
[38] [2007] NSWCA 23 at [45]
[39] [2018] QCA 349 at [42]
[40] (1995) 129 ALR 455, 467-468
[41] (2000) 63 ALR 147 at [35]
The Tribunal agrees with the respondent’s submission that the above propositions apply not only to the prospects that a tribunal will find the respondent to have engaged in unlawful discrimination against a complainant but also to the prospects that the tribunal will make the order, or grant the relief, that is sought by the complainant.
The orders sought by the applicant
Section 53E(2) of the HRC Act (see [23] above) sets out the kind of orders the Tribunal may make if satisfied that the person complained about engaged in an unlawful act.
The applicant seeks an order that he be given “certification I have been rehabilitated”; a different relief to the relief he sought in the complaint form, namely he be readmitted into ASOP for the purposes of giving him a better chance to successfully apply for parole when he became eligible.
For the Tribunal to make an order that he be given the certificate the Tribunal must be satisfied that the respondent has engaged in unlawful discrimination and that the order made complies with section 53E(2) of the HRC Act.
The respondent denies there is any basis for finding unlawful discrimination. The applicant’s original complaint was based on his expulsion from ASOP and that this affected his prospects of parole. The Tribunal is comfortably satisfied that the applicant’s expulsion and subsequent exclusion from ASOP was based on his security classification and his behaviour. It did not constitute “unfavourable treatment” or involve “the imposition of a disadvantage” for the purposes of sections 8(2) and (3) of the Discrimination Act.
The applicant has not put any material before the Tribunal, other than his subjective beliefs, that would support the Tribunal drawing an inference that his race (or immigration status) was the real reason or the true basis for the decisions to expel or exclude him from ASOP.
The Tribunal is also comfortably satisfied, for the reasons set out above, that ASOP does not involve the provision of a ‘service’ for the purposes of the Discrimination Act.
The respondent further submits that the order now sought by the applicant, that he be granted a certificate that he has been rehabilitated, cannot be supported by the facts and is not an order which is capable of being made by the Tribunal consistent with a proper construction of section 53E of the HRC Act. The respondent contends that such an order does not represent a reasonable act to redress any loss or damage.
The question for the Tribunal is: is the giving of a certificate “a stated reasonable act to redress any loss or damage suffered by the applicant because of the unlawful act?”
The Tribunal is comfortably satisfied that there is no such certification issued within the AMC. It is also clear from the applicant’s own material, which he had submitted to the ACT Sentence Administration Board[42] when seeking parole, that he was exited from ASOP and has not since completed further steps in that program; he made a conscious election to apply for parole without completing ASOP; he argued that he should be granted parole without having to complete ASOP and he was granted parole on that basis and without completing ASOP. He has foregone certification in relation to ASOP.
[42] Respondent’s submissions in support of application for strike out and summary judgment at pages 62-73
The Tribunal is also comfortably satisfied that the order sought, namely to certify that the applicant has been rehabilitated, is not a stated reasonable act. The applicant did not identify any steps he had taken which show rehabilitation.
If the applicant intended to seek a certificate of achievement for successfully completing ASOP, the fact is that he has not completed that course. Further, the requirement that the respondent “give” him a certificate, involves the program officers exercising judgment. This cannot be compelled by a Tribunal order.
Conclusion
For the reasons set out above the Tribunal is satisfied that the applicant has no arguable case. The respondent’s application is successful. The Tribunal will order that the application be dismissed as it is lacking in substance and has no reasonable prospects of success.
………………………………..
Presidential Member E Symons
HEARING DETAILS
FILE NUMBER: | DT 28/2018 |
PARTIES, APPLICANT: | Neerlander Singh |
PARTIES, RESPONDENT: | Director-General, Justice And Community Safety |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
TRIBUNAL MEMBERS: | Presidential Member E Symons |
DATES OF HEARING: | 23 July 2019 |
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