WHITTLE and COMMISSIONER OF CORRECTIVE SERVICES - [2011] WASAT 68

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION: WHITTLE and COMMISSIONER OF CORRECTIVE SERVICES [2011] WASAT 68

MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)

HEARD: 25 FEBRUARY 2011

DELIVERED : 21 APRIL 2011

FILE NO/S: EOA 6 of 2010

BETWEEN: VALERIE JEAN WHITTLE
Applicant
AND
COMMISSIONER OF CORRECTIVE SERVICES
Respondent

Catchwords:

Equal opportunity - Discrimination on grounds of sex - Less favourable treatment - Comparator - Goods and services

Legislation:

Equal Opportunity Act 1984 (WA), s 4, s 8, s 8(1), s 20, s 90(2)

Result:

The application is dismissed

Category: B

Representation:

Counsel:

Applicant: Mr R Widerstrom (Agent)
Respondent: Ms L Eddy

Solicitors:

Applicant: N/A
Respondent: State Solicitor's Office

Case(s) referred to in decision(s):

Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13
Edoo and Minister for Health [2010] WASAT 74
Ghockson v Commissioner of Police (1996) EOC 92 798
Haines v Leves (1987) 8 NSWLR 442
Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92
Richards and Commissioner of Police [2010] WASAT 11
Zangari and St John Ambulance Service [2010] WASAT 6

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant, who was at the relevant time a prisoner at Bandyup Women's Prison, brought a claim against the Commissioner of Corrective Services on the basis that the Commissioner had introduced a smoking reduction policy in prisons in Western Australia, but had implemented this policy in Bandyup Womens Prison, and not in Hakea Prison or Casuarina Prison, being men's prisons. She alleged that the Commissioner provides goods (cigarette lighters) and facilities and/or services (smoking areas, ash trays, fixed cigarette lighters and shelters) on terms less favourable to her than to her male counterpart in another prison.
The Tribunal first considered whether the Commissioner provides goods, services or facilities to prisoners. It concluded that the Commissioner was engaged in providing goods and facilities in the relevant sense.
The Tribunal then examined the evidence in relation to the allegation. It concluded that, assuming that allowing a person to smoke can be regarded as treating that person more favourably than not allowing a person to smoke, the Commissioner had treated the applicant less favourably than her counterpart in a male prison. However, the applicant failed to provide any evidence that this was on the ground of her sex. The Tribunal found that there was no basis to conclude that the actions of the Commissioner in implementing the smoking reduction policy were influenced in any way by consideration of gender. Accordingly, the application was dismissed.

The complaint

On 10 September 2009, the Equal Opportunity Commission (EOC) received from the applicant a complaint lodged under the Equal Opportunity Act 1984 (WA) (EO Act). The applicant was at that time a prisoner at Bandyup Women's Prison (Bandyup Prison). The applicant's complaint alleges discrimination by the respondent on the ground of her sex in the area of goods, services and facilities. Specifically, the applicant complained to the EOC that certain new smoking rules which have been implemented at Bandyup Prison have not also been implemented at the two maximum security men's prisons in Perth.
The substance of the applicant's complaint to the EOC is as follows:
1.    On 1 August 2009, we at Bandyup Women's Prison had new smoking rules enforced where we are no longer to smoke in our cells or possess a lighter. In fact, if we are caught with a lighter in our possession we get a prison charge.
2.    The two maximum security men's prisons in Perth, Hakea and Casuarina, have not had these new rules enforced.
3.    It appears that the difference in the way the maximum security men's prisons in Perth are being treated compared with the way the maximum security women's prison is being treated is sex discrimination.
On 8 October 2009, the EOC wrote to the respondent about the applicant's allegation and sought the respondent's comments.
On 28 October 2009, Mr Ian Giles, Deputy Commissioner of Corrective Services, provided a response to the EOC complaint. That response refers to the Department of Corrective Services' smoking reduction policy and its implementation across the prison system in Western Australia and contained the following information:
Smoking Reduction Project

Overview of the Smoking Reduction Project

The Smoking Reduction Project applies to all public and private prisons and work camps and is currently being implemented across the Western Australian prison system.
The rollout of the project has occurred in a staged process with the time for implementation determined by the Superintendent of each prison. Superintendents are responsible for the safety and security of their prison and need to be confident that implementation of Smoking Reduction strategies does not pose a risk to the good order of their prison and that all of the facilities and supports are in place. Most prisons have already implemented smoke free cells and use designated smoking area. Other prisons have partial implementation of the strategies and continue to meet regularly to continue progress with their smoking reduction implementation plan.

Table 1.1 Facility summary of implementation of smoking reduction strategies

Prison	Gender / Security	Region	Implementation of Smoking Reduction Strategies
Acacia	Male medium	Metropolitan	Partial implementation
Albany	Male maximum	Regional	Partial implementation
Bandyup	Female maximum	Metropolitan	Implemented
Boronia	Female minimum	Metropolitan	Implemented
Broome	Mixed minimum	Regional	Implemented
Bunbury	Male medium	Regional	Implemented
Casuarina	Male maximum	Metropolitan	Partial implementation
Eastern Goldfields	Mixed minimum	Regional	Implemented
Greenough	Mixed medium	Regional	Implemented
Hakea	Male maximum	Metropolitan	Partial implementation
Karnet	Male minimum	Metropolitan	Implemented
Pardelup	Male minimum	Regional	Implement upon commissioning
Roebourne	Mixed medium	Regional	Partial implementation
Wooroloo	Male minimum	Metropolitan	Implemented

Eight prisons have implemented the Department's smoking reduction strategies with smoking not permitted in enclosed areas of the prison, including cells. Pardelup Prison Farm will follow suit when this new prison is commissioned in early 2010. Five prisons have partially implemented smoking reduction strategies and are continuing to implement the necessary support for prisoners and staff to access treatment, education and support to quit smoking (eg. installation of designated smoking areas, access to the Quitline and Fresh Start programs). Smoking Reduction meetings are held regularly with the aim to progress implementation.
Casuarina Prison has established designated smoking areas external to all units and other appropriate locations around the prison. Outcomes from bimonthly smoking reduction meetings are discussed at Casuarina Executive meetings to ensure progression of implementation of smoking reduction strategies as soon as possible. Hakea Prison has identified locations for construction of 36 designated smoking areas is [sic] progressing installation of these shelters. Hakea Prison has implemented smoke free cells during unlock hours.
The current muster management strategy of double bunking cells to accommodate an increased prisoner population has reduced the capacity of Casuarina and Hakea prisons to introduce the smoking reduction strategies in their entirety. At this current time, the prisons have prioritised the good order and security of the prison as the primary consideration. Implementation of smoking reduction strategies will progress once the Superintendents are confident that that implementation of smoking reduction strategies does not pose a risk to the good order of their prison and that all of the facilities and supports are in place.

Background

…
In May 2006, the original WA Prisons Smoking Cessation Plan was developed and presented to the Minister. At his [sic] time it was proposed that prisons would be smoke free by 31 March 2008.
Although there was some pressure from Public Health lobbyists and senior politicians to meet this target, there was significant support from stakeholders such as researchers, Office of the Inspector of Custodial Services and health policy experts for an emphasis to be place upon smoking reduction only, not cessation.
A new Smoking Reduction Plan was tabled at the end of 2008, which was expanded to cover Work Camps and Evaluation methodologies. All Work Camps were included in the plan and Juvenile Custodial settings were removed from the plan. Acacia Prison (a privately operated male medium security prison) was included, which required a variation to their contract to bring them in to line with public prisons. The Smoking Reduction Plan now applies solely to all public and private prisons and work camps.
Under the revised 2008 Plan, a total ban was no longer considered appropriated, as total cessation goes over and above the community standard. Research also indicated that total cessation models add considerably to the work of prison security services with the management of tobacco as contraband and stand over tactics.
A Smoking Reduction Trial, aiming to make the prison smoke free in all enclosed areas, was completed at Greenough Regional Prison in March 2009. The trial provided an opportunity to implement and assess a range of strategies to achieve the aim of the trial, together with methodologies that would be applicable to other prisons. The trial was proclaimed as a success and has since provided a framework for implementation of smoking reduction strategies at other prisons.
It was determined that in order to progress the implementation of the plan that a deadline of 30 June would be set for all prisons to be smoke free in enclosed areas. By that time, 50% of prisons had met the timeline with the majority of the remaining prisons reporting that they would achieve smoke free cells by December 2009. Due to identified operational and security concerns associated with the unprecedented growth in the prisoner population, some prisons will not achieve smoke free cells by December 2009. Partial implementation through strategies like restriction of smoking in cells during 'unlock hours' has been implemented at some prisons.
In June 2009, the Minister commented on receipt of the last progress report on the project that the reduction of smoking in prisons was an important issue. He especially noted the section of the report that stated:
While some prisons will meet the deadline to implement smoke free enclosed areas in their prisons, it is important to acknowledge that there cannot be a 'one size fits all' approach as it poses risks to staff and prisoners, particularly in a period of rapid, unprecedented and unforeseeable population growth as it currently being experienced'.

Prisons are unique environments that present unique risks not found in the general community, and the prevailing position is that the Department will implement a smoking reduction rather than smoking cessation model. Such harm reduction strategies will only be introduced once Superintendents are confident that their implementation does not pose a risk to the good order of prisons.

Reasons for Doing the Project / Benefits

•Improvement to the health of staff and prisoners by providing clean air.
•Reduction in fire risk (in line with FESA recommendations).
•The project operates within the framework of the WA Tobacco Action Plan 2007 2011.
•Affords an opportunity for both staff and prisoners to access treatment and support for smoking cessation.
•Addresses the need for Aboriginal prisoners to access treatment, education and support to quit smoking in accordance with recommendations of the Aboriginal and Torres Strait Islander Health Performance Network.
•Ultimately costs for health services will be reduced if prisoners and staff stop smoking, as smoking related illness will reduce.
•Research will enable the Department to identify strategies and models that are effective in reducing smoking in WA prisons.
…

Implementation of Smoking Reduction Activities in Prisons

…
Risk Management
Each prison is responsible for developing its own Risk Management Plan, which has enabled prisons to have increased confidence in the implementation of their respective Plans.
…
Designated Smoking Areas in Prisons
A key element of this Project is that before smoking can be excluded from enclosed areas of the prison, there is a need for an alternative space to be organised where prisoners and staff can go to smoke. This requires appropriate signage, shelters that protect from the elements and provision of lighters and ashtrays.
Prisons were given a top limit of $1,500 per shelter, however the specific requirements of individual prisons had to be factored in, such as shelters that meet with cyclone requirements and security requirements.
Prison Industries have been actively involved in the design, manufacture and construction of signage, shelters and associated equipment. This has not only been a cost saving to the Department but has provided skills training for prisoners involved in this project.
In April 2009, the budget for the Smoking Reduction Project was temporarily frozen, delaying the installation of smoking shelters in some prisons, as approval for funding of these items could not be provided. Funding was carried over for prisons and construction of smoking shelters recommenced. Installation of shelters, lighters, signage and ashtrays in the remaining prisons is expected to be finalised by December 2009 (excluding Hakea Prison). It is important that Designated Smoking Areas are operational before prisons progress to smoke free enclosed areas, including cells.

Implementation at Bandyup Women's Prison

Subsequent to a request to Superintendents to implement smoking reduction strategies at prisons, the Superintendent at Bandyup Women's Prison assessed the suitability of the prison to implement the Department's smoking reduction strategies. An assessment was made that implementation of smoking reduction strategies would not compromise the safety and security of Bandyup Women's Prison. A Senior Officer was assigned to implement the strategies.
Implementation involved the following actions:
•Development of a Smoking Reduction Policy and Local Order 41A Smoking Reduction.
•Construction of fourteen designated smoking areas available to prisoners and staff.
•Introduction of the Smoking Reduction Policy to prisoners through specifically designed posters.
•Placement of 'No Smoking' signs in all areas of the Prison.
•Provision of information to prisoners during muster parades and Staff/Unit Meetings.
•Placement of pamphlets and posters in the Units, Library, Education Centre, Health Centre and Recreation areas.
•Notices to staff outlining implementation strategies including an amnesty period to ease in the new Policy.
•Advice to staff members about signing up to the Butt Out at Work campaign and assisting staff who are trying to give up smoking.
•The Senior Officer Group and Administration agreed on the following sanctions for prisoners caught smoking in their cells or in possession of a lighting implement, since August 1 2009:
a)    1^st infringement item confiscated, prisoner counselled and an Offender Notes notation
b)    2^nd infringement 7 days Loss of Privilege to purchase tobacco from the Canteen
c)    3^rd infringement 14 days Loss of Privilege to purchase tobacco from the Canteen
d)    4^th infringement Regression from current supervision level or prefer formal charge.

The EOC provided the applicant with a copy of this response and on 11 November 2009 the applicant wrote to the EOC stating that in her view 'it confirms that Bandyup Prison is the only maximum security prison that have these rules imposed'.
On 29 December 2009, the EOC wrote to the applicant confirming that all of the material regarding her complaint of sex discrimination had been considered. The EOC informed the applicant that the EOC had decided that her complaint of discrimination is misconceived and was dismissed.
The EOC's letter to the applicant contained the following paragraphs (including the emphasis):
To establish a complaint of sex discrimination you must show that you have been treated less favourably than other persons in the same or similar circumstances, and that the less favourable treatment is due to your sex. As the Department's Smoking Reduction Project has been introduced to provide support for prisoners and staff to access treatment, education and assistance to quit smoking, which is accepted as a health benefit, I am not able to agree that you are being treated less favourably than other prisoners who are in prisons where the Project has not been fully implemented.
I also note from the information provided by the Department that the Project has been fully implemented at a number of male only as well as mixed prisons. So while it is correct that only partial implementation has occurred at Casuarina and Hakea, full implementation has been effected at a range of other male and mixed prisons around the state. In my view, it is misconceived to claim that you are being treated less favourably than other prisoners on the ground of your sex.
On 19 January 2010, the applicant gave written notice to the EOC under s 90(2) of the EO Act requiring the Commission to refer her complaint to the Tribunal. The EOC complied with this request on 11 February 2010.

The relevant provisions of the EO Act

Section 20 of the EO Act makes it unlawful to discriminate on the ground of a person's sex either by refusing to provide, or make available, goods, services, or facilities, in the manner in which those goods, services or facilities are made available.
Section 20 relevantly provides:
20. Goods, services and facilities
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex,…
(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b)in the terms or conditions on which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)in the manner in which the firstmentioned person provides the other person with those goods or services or makes those facilities available to the other person.
Section 8 of the EO Act defines discrimination on the grounds of sex and relevantly provides:
8. Discrimination on the ground of sex
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, on the ground of
(a)the sex of the aggrieved person; or
(b)a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the sex of the aggrieved person,
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.
…
Neither the term 'goods' nor the term ' facilities' is defined in the EO Act, but s 4 states that:
services includes
(a)services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance; and
(b)services relating to entertainment, recreation or refreshment; and
(c)services relating to transport or travel; and
(d)services of the kind provided by members of any profession or trade; and
(e)services of the kind provided by a government (other than the assessment of an application for suitability for adoptive parenthood, or the placement of a child for adoption or with a view to the child’s adoption, under the Adoption Act 1994), a government or public authority or a local government body;

The legal principles

To determine whether a person has been treated 'less favourably' it is necessary to identify another person in 'circumstances' which are 'the same' or 'not materially different' from the aggrieved person (a comparator) and to determine whether the manner in which the aggrieved person was treated was less favourable than the manner in which the comparator was, or would be, treated: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 19 (Mahoney JA).
The expression 'less favourably' in s 8 of the EO Act bears its ordinary meaning. The Tribunal is to apply its judgment to the facts found to be proved in the particular case: Ghockson v Commissioner of Police (1996) EOC 92 798; Haines v Leves (1987) 8 NSWLR 442 at 471 (Kirby P).
It is not necessary to identify an actual person in comparison with whom a complainant is less favourably treated. It may be that the comparator is hypothetical. Nevertheless, the factual foundation for conclusions about the way in which the comparator is, or would be, treated, must be established: Edoo and Minister for Health [2010] WASAT 74 at [162] (citations omitted).
It is also not necessary that the comparator be in identical circumstances, but there must be a sufficient degree of similarity in the circumstances of the aggrieved person and the actual or hypothetical comparator to form the basis for an appropriate comparison: Zangari and St John Ambulance Service [2010] WASAT 6 (Zangari) at [38] (citations omitted). In considering whether circumstances are the same or not materially different, it is necessary to take into account all of the objective features surrounding the treatment which is said to have been less favourable: Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 at [224] (Gummow, Hayne and Heydon JJ).
The applicant does not need to show that the respondent intended to discriminate against her. It is the effect of an impugned practice, not the underlying intent, that is the governing factor in determining whether the practice or conduct gives rise to discrimination: Zangari at [28].
In order for discriminatory conduct to be rendered unlawful, the conduct must be concerned with the provision of goods, facilities or services: Richards and Commissioner of Police [2010] WASAT 115 at [48]

The parties' submissions and evidence

The applicant's submissions

The applicant submits that the issues before the Tribunal are as follows:
a) did the respondent, by virtue of the manner in which it implemented the smoking reduction policy at Bandyup Prison, treat the applicant less favourably than it treats or would treat a person of the opposite sex in circumstances that are the same or not materially different, in the terms or conditions on which it provided certain goods or services or made certain facilities available and by refusing to provide the applicant with certain other goods or services and refusing to make certain facilities available; and
b) if so, did it do so on the basis of the sex of the applicant?
In particular, it is alleged by the applicant that the respondent:
a)    makes available goods, namely cigarette lighters for sale at some male prisons, but does not make these goods available to the applicant who was at the time of her complaint to the EOC incarcerated at Bandyup Prison;
b)    provides a service of managing on a day to day basis imprisonment of the applicant, including locking her into and releasing her from her cell, providing her with food, providing her with work, providing her with leisure activities, all on terms that mean she is restricted in the times and places when she may smoke because of the implementation of the smoking reduction policy, when it provides the same service on different terms at other, male, prisons; and
c)    provides more restricted facilities at Bandyup Prison where the applicant is allowed to smoke when wider facilities are provided to prisoners in male prisons.
Thus, in the applicant's submission, the following issues fall to be determined:
a)Does the respondent provide the goods, services or facilities so alleged?
b)What are the relevant circumstances that are the same, or not materially different, in relation to which the respondent treats a person of the opposite sex?
c)Was the applicant treated less favourably than a man was, or would have been, treated in the same or not materially different circumstances?
d)Was the applicant treated less favourably on the ground of the applicant's sex?
The applicant contends that the respondent's smoking reduction policy has been and is being applied more harshly within Bandyup Prison than it is in male prisons in Western Australia and that, while decisions taken on implementation may be for 'operational reasons', the respondent was primarily concerned over prisoner reaction to immediate and complete implementation at some prisons. The applicant contends that the respondent's perception is that women are less likely to rebel and pose less of a management problem and thus have 'borne the full brunt of the policy'. Therefore the applicant has been discriminated against on the basis of her sex.
The applicant also contends that an appropriate comparator is a prisoner at Hakea Prison, a male maximum security prison in the metropolitan area.

The respondent's submissions

The respondent concedes that it provides 'services' within the meaning of s 20 of the EO Act, where the relevant service is described as allowing prisoners to smoke without restriction whilst inside a prison.
The respondent also concedes that it provides designated smoking areas within Bandyup Prison (and some other prisons) and that the provision of these areas is the provision of a facility within the meaning of s 20 of EO Act.
The respondent further agrees that it provides cigarette lighters to persons incarcerated at prisons operated by it and that cigarette lighters are 'goods' within the meaning of s 20 of the EO Act.
The respondent therefore contends that the issue before the Tribunal is, did the respondent, as a result of the implementation of the smoking reduction policy at Bandyup Prison, on the ground of the sex of the applicant, treat the applicant less favourably than, in circumstances that are the same or not materially different, the respondent treats or would treat a person of the opposite sex:
a)by refusing to provide the applicant with the aforementioned goods or services or make that facility available;
b)in the terms and conditions on which it provided those goods or services or made that facility available; or
c)in the manner in which the respondent provided the applicant with those goods or services or made that facility available;
contrary to s 8(1) and s 20 of the EO Act?
The respondent suggests that an appropriate comparator is a male prisoner in Roebourne Regional Prison, a mixed gender medium security regional prison or Bunbury Regional Prison, a male medium security regional prison

The evidence at the hearing

Applicant's evidence

The applicant provided a witness statement and was crossexamined at the hearing. In her statement, the applicant accepted that at least one of the reasons why the respondent's smoking reduction policy was introduced in different ways at different prisons was because of the necessity to make an assessment of the security concerns at each prison. However, she believes that the respondent's attitude is that women 'are more compliant, docile and obedient than men in the same situation'. She says that the policy has been 'severely, and sometime capriciously, enforced so as to enable the treatment of women prisoners to be compared to that of men'.
Most of the applicant's witness statement focuses on the difficulties she has experienced as a smoker of in excess of 30 years because of the restrictions placed upon her by the implementation of the smoking reduction policy. Other than the passage quoted previously, she makes little, if any, reference to any discrimination against her as a female prisoner, although she does say that the circumstances which she is facing as a smoker in prison 'are not conditions to which male prisoners in maximum security prisons are subject'. However, she offers nothing in support of that statement.
In her evidence given at the hearing, the applicant again described the difficulties for her as a smoker being caused by the implementation of the smoking reduction policy. She concedes that she is allowed to smoke, but not in her cell and not as frequently as she would like. She described the designated smoking areas and shelters and maintains that they are not 'fit for purpose'. She also gave examples of occasions when the smoking restrictions resulted in her not being permitted to smoke from early evening the previous day until lunchtime the following day.
The applicant was crossexamined on issues around support which she may or may not have received from the prison to assist her with the difficulties in managing her smoking habit within the restrictions of the smoking reduction policy. She stated that, for example, nicotine patches were only made available to those prisoners who wished to stop smoking, not to prisoners such as herself who were seeking assistance to deal with the times when they are not permitted to smoke.
The applicant also filed a witness statement from Dr Brian Steels, a senior researcher and lecturer at Murdoch University School of Law, who appeared as an expert witness. Steels describes himself as 'a convict criminologist', having been convicted of a criminal offence some years previously for which he was sentenced to a term of imprisonment of seven and a half years. This, he contends, places him 'in a unique situation within Western Australia'.
Dr Steels states that he is a member of the Australian New Zealand Society of Criminology, the Prisoner's Advisory Support Services, Deaths in Custody Watch Committee and various other prison related committees and associations. He also states that from 2001 to 2004 he was an independent prison visitor and he is currently an advisory consultant to the Department of Corrective Services. He is the author of a paper entitled 'Declared Guilty', an analysis of 'the impact of the criminal justice system upon the self'. He also authored or coauthored numerous papers and publications around prison reform and the impact of imprisonment.
Dr Steels states that evidence both internationally and nationally strongly supports the view that women are discriminated against compared with their male peers 'in many areas of life, but none more so than whilst incarcerated'. He states that women prisoners 'are often illinformed because they are a minority'. He says that the penal system 'is fundamentally flawed when it comes to providing for women's needs as everything designed for women has generally firstly been designed primarily with men's prisons in mind'.
He goes on to say that the 'State government is punishing them (women prisoners) more harshly with the introduction of its smoking reduction policy and particularly the more harsh implementation of this policy at Bandyup Women's Prison'. He says his belief, based on observation over the past 16 years and on international and national research is 'that the department has failed to implement the smoking reduction policy to the full extent in the men's prisons because it is aware that the men will not like it and are likely to riot against the regime if it were to be operated in the way it is at Bandyup'.
The applicant's representative put to Dr Steels at the hearing that it had been suggested 'that Roebourne is an acceptable comparator with Bandyup'. Dr Steels was asked whether he thought that a male prisoner at Roebourne would be an appropriate comparator when it came to assessing whether or not the applicant had been discriminated against on the ground of her sex. Dr Steels appeared to be reluctant to be drawn on this question although he stated that Roebourne is regarded by him as 'an Aboriginal prison'.
Evidence was also given on behalf of the applicant by Mr Luke Stokes. Mr Stokes testified that in August 2009 he was remanded in custody in Hakea Prison for about three weeks before being transferred to Acacia Prison and he was released on 22 November 2009, prior to the implementation of the smoking reduction policy.
He said that upon arrival at Hakea Prison he was told that he was 'entitled to have a packet of cigarettes and a box of matches'. He was permitted to smoke in his cell, provided that the door was closed. He was not permitted to smoke in indoor common areas.
In crossexamination, Mr Stokes admitted that he was a close personal friend of the applicant and that he had no knowledge of the situation with regard to smoking in other prisons.
The applicant also produced witness statements from a number of prisoners at Bandyup Prison. However, the applicant concedes that the evidence from these prisoners is of no assistance to the Tribunal and were submitted only as 'an acknowledgement of their right to be heard'.

Respondent's evidence

The respondent filed witness statements from a number of prison officers.
The first of these to give evidence was Ms Kerri Ann Bishop who at the date of her statement, 19 November 2010, was the superintendent of Bandyup Prison. Ms Bishop testified that in 2006 she was an assistant superintendent at Roebourne Prison. She was subsequently an assistant superintendent in Broome Prison and then an assistant superintendent in Kalgoorlie Prison. From late 2007 to 2009 she was an assistant superintendent at Hakea Prison. In 2010 she was the superintendent at Roebourne Prison and went to Bandyup Prison in August 2010. She testified that in 2009 when she was an assistant superintendent at Hakea Prison, she was responsible for the implementation for the smoking reduction policy at Hakea Prison. She stated that Hakea Prison is a male remand and receival maximum security prison. She says it holds prisoners of all security classifications including remand prisoners.
She spoke of the extreme pressure that Hakea Prison was under in 2009 in terms of the large number of prisoners. She stated that this weighed heavily in the decision not to progress the smoking reduction policy without additional resources such as nicotine patches, which were not available. She also spoke of the layout of Hakea Prison and the associated fire risks. She stated that Hakea Prison had the highest fire risk of all the prisons in Western Australia. She suggested that the combination of overcrowding and fire risk led to the decision to implement the smoking reduction policy at a slower rate than at Bandyup.
In her witness statement, she describes Roebourne Prison as:
… similar to Bandyup Women's Prison in that they both have similar sentencing and security level dynamics. There is also no smoking in cells and the situation is essentially the same as at Bandyup Women's Prison.
When asked about Steels' statement that women prisoners generally and in WA are seen as more cooperative and compliant, she said:
Their incident rate can just be as equal as men's, their incident rate. Yeah. I think that they will verbalise their issues a lot more frequently than men because the nature that they are female. I think the research indicates that females will verbalise a lot more than males. So I am not convinced that the women just sit back and don't say anything, no. I think women are probably very quick to stand up and say something.
She also added:
… prisoners are disempowered as soon as they go into a prison system. I don't think I think that disempowerment is as equal, regardless of your gender. I see females disempowered as soon as they walk in and I see males disempowered.
She was questioned on Mr Stokes' evidence that upon arrival at Hakea Prison he was given 'free cigarettes and lighters'. She confirmed that no prisoner was entitled to or received cigarettes without cost. She said:
If he had no money, he would have paid for them in the first week. Or if he didn't last the week, he wouldn't have paid for them at all. He would have got off not paying for them. That's just the practice at Hakea.
Finally, when asked at the hearing why the implementation of the smoking reduction policy at Hakea Prison was delayed, she said that overcrowding was one factor but it was also the design of the prison and the fire risk rating. It was 'a combination of three very real issues that we were having … at the time'.
The Tribunal also heard evidence from Ms Vanessa Hazel Read who at the date of her witness statement, 24 November 2010, was a research and evaluation officer of the Department of Corrective Services. She is the author of a document entitled 'Smoking reduction plan for WA Prisons 2009 2010; Implementation Status'. Ms Read was from 2006 until 'recently' the project manager of the smoking reduction policy.
Her witness statement contains the following assertions:
1.The argument that the smoking reduction plan has been implemented more harshly for female prisoners than male prisoners is emotive and incorrect.
2.The key element (in respect of implementation) has been that implementation shall not proceed at any site if a superintendent has reason to suspect that to progress it will compromise the security of the prison, its staff and or its prisoners. The risk management plan conducted at Bandyup Prison determined that all identified risks were manageable and that the prison should proceed to full implementation.
3.The issue of a perceived right to smoke in cells is a flawed perception. People in the community are now no longer able to smoke in pubs and hospitals, and most hotels have a ban on smoking in their rooms. The issue of the impact of passive smoking has driven these legislative requirements and the perception of a prisoner's cell being their home long argued as justification for continued smoking is no longer valid as other persons, including prisoners, may share their cell and prison officers need to access their cells as part of their daily work.
4.Prisons remain which have not still fully implemented the smoking reduction plan Hakea, Casuarina and Albany.
5.Gender has never been an issue as to why some prisons implemented their smoking reduction plan ahead of others. Prisons look at when they can get their shelters done, what arrangements they could get with health services re the nicotine replacement therapy, what was happening about programs, who would deliver those programs it was about putting the infrastructure in place.
The respondent's next witness was Ms Marie Louise Chatwin. Ms Chatwin was at the date of her witness statement, 21 November 2010, the superintendent of Bandyup Women's Prison. She testified that the applicant came into Bandyup Women's Prison on 30 April 2009. Initially the applicant's security rating was maximum and at the date of Ms Chatwin's witness statement the applicant's security rating was medium. The applicant was also in prison for one day from 5 December 2008 to 6 December 2008 as a remand prisoner. Ms Chatwin states that when the applicant came into Bandyup Prison, the smoking reduction policy had been fully implemented in that prison.
She says that smoking had been banned in certain areas of Bandyup before 2009, particularly in the nursery. She said that this was not related to any smoking reduction strategy, rather it was about the care and wellbeing of the prisoners and their babies.
She included in particular the following statement:
The majority of the women at Bandyup did not want people smoking and we were getting numerous complaints about smoking in the units and in the cells as the smoke flowed through the vent system to other cells.
Bandyup has the ability to have child residents up to the age of 12 months. These children are able to move within the prison environment in the company of their parents and were being exposed to secondhand smoke. In addition, a number of pregnant women are continually housed within the prison. Protection of unborn babies, children and women with medical conditions is an obligation the Department takes seriously. It is not that the women cannot smoke, but that they are restricted to specific areas where they have less impact on others.

When Steels' statement that 'women are generally seen as more cooperative and compliant within prisons' was put to her she replied 'I don't know where he gets that opinion from. I don't understand what the point is'.
When she was asked about Steels' statement that women prisoners are not accorded the same level of respect nor granted the same level of input into operational decisions as are male prisoners at men's and mixed prisons, she replied, 'I would totally disagree'.
The respondent's final witness was Mr Andrew Leslie Smith, who was at the date of his witness statement, 15 November 2010, as assistant superintendent at Bunbury Regional Prison. Mr Smith stated that Bunbury Regional Prison has male prisoners and holds maximum, medium and minimum prisoners. He described the smoking reduction plan as having been fully implemented at Bunbury Regional Prison. Smoking at Bunbury Regional Prison is only permitted in designated smoking shelters, of which there are thirteen.

The Tribunal's findings

At the outset of the hearing, the respondent informed the Tribunal that the respondent's smoking reduction policy had, from around December 2010, been replaced with a 'Tobacco Management Policy'. As a result, the respondent has apparently issued the following instructions to all prison superintendents in Western Australia:
1. No prisoner in any prison may smoke in enclosed areas; and
2. Cigarette lighters are now permitted to be sold from all prison canteens.
In addition, the applicant is now incarcerated at Boronia PreRelease Centre for Women and is no longer at Bandyup Prison.
Both this change in policy and the relocation of the applicant, while not impacting on the applicant's complaint, has an effect on the orders which the Tribunal might make if the applicant's case is found by the Tribunal to be substantiated.
It is moot whether the respondent can be regarded as treating the applicant less favourably than her male counterpart by restricting her from smoking, as opposed to allowing her male counterpart unfettered opportunities to smoke. The medical evidence that smoking is harmful is irrefutable and it may be that the applicant was treated more favourably rather than less favourably than her male counterpart. This seems to be, at least in part, the basis upon which the EOC dismissed the applicant's complaint.
However, although the respondent alluded to this issue, it did not form part of the respondent's submissions and the Tribunal does not propose to pursue this further.
The parties have been unable to agree on a suitable comparator. The applicant favours a male remand prisoner in Hakea Prison. The respondent, on the other hand, favours a male sentenced prisoner at either Bunbury Regional Prison or Roebourne Regional Prison.
If the respondent's comparator is adopted by the Tribunal, then the applicant's case must fail on the basis of the respondent's assertion (which is not in dispute) that the respondent's smoking reduction policy had been fully implemented in both of those regional prisons at the time of the applicant's complaint to the EOC.
However, even if the Tribunal accepts the applicant's proposed comparator, it will be seen that this does not affect the Tribunal's decision in this matter.
The Tribunal was not assisted by the applicant's evidence which, as has already been stated, focused on the difficulties which a smoker, male or female, would experience as a result of the implementation of the smoking reduction policy. Her evidence did not support her belief that she is being discriminated against on the ground of her sex.
The Tribunal did not find Dr Steels' evidence to be useful or helpful. He admitted that he is not a specialist in gender issues or discrimination within prisons. He recalled that his visits to Roebourne Prison were usually from midmorning to midafternoon, but never at night after lockup and that he had not been to Casuarina Prison since the implementation of the smoking reduction plan. His expertise is in prison reform generally and he conceded that the implementation of the smoking reduction plan was entirely one for the superintendent in charge of the prison in question and that different superintendents had approached this in their own particular way. He confirmed that he had never carried out research on the attitudes of those prison officers. He indicated that he relies only on his personal experience of prison officers, gained during his own incarceration. The Tribunal's conclusion about Dr Steels' evidence is that he has conducted no relevant research in relation to gender discrimination in prisons and that there are others (and Dr Steels says as much himself) who are much better qualified to speak on that particular subject.
The evidence of Mr Stokes was of no particular assistance to the Tribunal, particularly as he was not a prisoner at Hakea Prison at or after the time when the smoking reduction policy was being implemented.
The respondent's witnesses were all credible and testified from a position of knowledge of the prison system generally and the implementation of the smoking reduction policy specifically.
The Tribunal's decision is that the applicant has failed to substantiate her claim that she was at the time of her complaint treated less favourably on the ground of her sex than a person of the opposite sex in the same circumstances.
It is clear that the applicant found that the implementation of the smoking reduction policy caused her distress as a smoker. She became aware (and it is not in dispute) that, at the time of her complaint, male prisoners in Hakea Prison were still permitted to smoke in their cells. To that extent, the applicant was treated differently, and possibly less favourably, than a (male) prisoner in Hakea Prison. However, the Tribunal has no evidence that this treatment was on the ground of the applicant's sex or that gender was a factor at all in the manner of the respondent's implementation of its smoking reduction policy.

Conclusion

For the foregoing reasons the Tribunal finds that the applicant has not substantiated her claim and the application should be dismissed.

Order

The application is dismissed.

I certify that this and the preceding [75] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT