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State of Queensland v Tafao[2021] QCA 56

State of Queensland v Tafao[2021] QCA 56

SUPREME COURT OF QUEENSLAND

CITATION:

State of Queensland v Tafao & Ors; Serco Australia Pty Ltd & Anor v Tafao & Anor [2021] QCA 56

PARTIES:

STATE OF QUEENSLAND

(applicant)

v

LEILANI TAFAO

(first respondent)

SERCO AUSTRALIA PTY LTD

ACN 003 677 352

(second respondent)

MARK WALTERS

(third respondent)

SERCO AUSTRALIA PTY LTD

ACN 003 677 352

(first applicant)

MARK WALTERS

(second applicant)

v

LEILANI TAFAO

(first respondent)

STATE OF QUEENSLAND

(second respondent)

FILE NOS:

Appeal No 6855 of 2020 Appeal No 6898 of 2020 QCATA No 338 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Appeals Tribunal at Brisbane – [2020] QCATA 76 (Senior Member Howard, Member Traves)

DELIVERED ON:

26 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

26 October 2020

JUDGES:

Sofronoff P and Philippides and Mullins JJA

ORDERS:

In each appeal:

  1. Leave to appeal against orders 2, 3, 4 and 6 of the appeal tribunal made on 22 May 2020.
  2. Appeal allowed.
  3. Orders 2, 3, 4 and 6 are set aside.
  4. Any submissions on costs must be made in writing, not exceed two A4 pages and be filed and served within seven days of the date of publication of these reasons.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where a transgender woman who was imprisoned at a facility for male prisoners was unsuccessful in the Queensland Civil and Administrative Tribunal (QCAT) in pursuing her complaint of indirect discrimination on the basis that she was made to identify as a man – where the appeal tribunal of QCAT upheld the transgender woman’s appeal in respect of indirect discrimination and set aside the Tribunal’s decision – where the appeal tribunal erred in identifying the errors it relied on to set aside the Tribunal’s decision – whether the appeal tribunal made an error of law in setting aside the Tribunal’s decision

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – LEGISLATIVE HISTORY OF ACT – where a transgender woman who was imprisoned at a facility for male prisoners was unsuccessful in the Queensland Civil and Administrative Tribunal (QCAT) in pursuing her complaint of indirect discrimination on the basis that she was made to identify as a man – where the appeal tribunal of QCAT held that the Tribunal failed to consider a factor as relevant to the reasonableness of the term imposed on the prisoner that was the subject of a claim for indirect discrimination – where s 319H(2) Corrective Services Act 2006 (Qld) requires the Tribunal to consider any relevant submissions made about the matters listed in s 319H(2) – where the legislative intention of s 319H(2) was to modify the application of s 11(2) of the Anti-Discrimination Act 1991 (Qld) and prescribe the matters which the Tribunal must consider in deciding whether the term was reasonable – whether the Tribunal may consider a matter when no relevant submission was made by any party

Anti-Discrimination Act 1991 (Qld), s 11, s 204, s 205

Corrective Services Act 2006 (Qld), s 319A, s 319B, s 319G, s 319H

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 147, s 150, s 153

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, cited

Pivovarova v Michelsen (2019) 2 QR 508; [2019] QCA 256, cited

COUNSEL:

C J Murdoch QC, with E Shorten, for the State of Queensland

S Robb for Ms Tafao

S Mackie for Serco Australia Pty Ltd and Mr Walters

SOLICITORS:

G R Cooper, Crown Solicitor for the State of Queensland

Caxton Legal Centre for Ms Tafao

Carter Newell Lawyers for Serco Australia Pty Ltd and Mr Walters

  1. [1]
    SOFRONOFF P:  I agree with the reasons of Mullins JA and the orders proposed.
  2. [2]
    PHILIPPIDES JA:  I agree with the orders proposed by Mullins JA for the reasons given by her Honour.
  3. [3]
    MULLINS JA:  Ms Tafao is a transgender woman who was born a biological male.  Ms Tafao was unsuccessful in the Queensland Civil and Administrative Tribunal in pursuing her complaints of direct and indirect discrimination on the basis of her gender identity against the State of Queensland, Serco Australia Pty Ltd and Mr Walters (referred to collectively as ”the applicants”) during the period she was imprisoned at the Southern Queensland Correctional Centre for male prisoners between 9 March and 5 November 2015: Tafao v State of Queensland & Ors [2018] QCAT 409 (the original reasons).  At the relevant time Serco operated this prison pursuant to an agreement with the State and Mr Walters was the director of the prison.  Ms Tafao’s complaint against the State was on the basis it was vicariously liable for the actions of Serco and Mr Walters.
  4. [4]
    Ms Tafao’s application for leave to appeal and to appeal that decision of the Tribunal was successful: Tafao v State of Queensland [2020] QCATA 76 (the reasons).  The appeal tribunal found that Serco, Mr Walters and the State had imposed the term on Ms Tafao that she identify as a man (the Term) and that the imposition of the Term was not reasonable within the meaning of s 11 of the Anti-Discrimination Act 1991 (Qld) (the Act) and s 319H of the Corrective Services Act 2006 (Qld) (CSA).  The appeal tribunal therefore set aside the Tribunal’s decision and declared that, in respect of the use of male pronouns to refer to Ms Tafao, the State, Serco and Mr Walters are jointly and severally liable for unlawful indirect discrimination in contravention of s 101 of the Act.
  5. [5]
    The State seeks leave to appeal the appeal tribunal’s decision.  Serco and Mr Walters also apply for leave to appeal the appeal tribunal’s decision.  It is common ground that, pursuant to s 150 and s 153 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), leave to appeal may be granted by the Court of Appeal only on pure questions of law which do not involve any question of fact or of mixed law and fact: Pivovarova v Michelsen (2019) 2 QR 508 at [4], [14] and [37].  For the purpose of considering the applications for leave to appeal to this court, it is also relevant to note the limitations imposed on an appeal from the Tribunal to the appeal tribunal under s 142(3)(b) of the QCAT Act, and that it is implicit that there be errors of fact, law or mixed law and fact to give the appeal tribunal jurisdiction.  Ms Tafao’s appeal required the appeal tribunal’s leave to appeal in respect of the questions of mixed law and fact that were raised.  Under s 147 of the QCAT Act, as the appeal before the appeal tribunal did raise questions of mixed law and fact, the appeal was by way of rehearing.

The grounds of the applications

  1. [6]
    The State focuses on how the appeal tribunal dealt with appeal ground 5(c) in the application by Ms Tafao for leave to appeal to the appeal tribunal.  Ground 5(c) was to the effect that the Tribunal erred in finding the State, Serco and Mr Walters did not discriminate indirectly against Ms Tafao, as a result of the Tribunal’s error in finding that Serco and Mr Walters’ addressing the applicant “by reference to her gender not gender identity and implicitly [requiring] [Ms Tafao] to ignore her gender identity when being addressed” was reasonable in the circumstances pursuant to s 11 of the Act and s 319H(2) of the CSA.
  2. [7]
    The respects in which State now alleges that the appeal tribunal in deciding appeal ground 5(c) erred in law can be summarised as follows:
    1. (a)
      disturbing a discretionary decision of the Tribunal where there was no error in accordance with the principles in House v The King (1936) 55 CLR 499, 505;
    2. (b)
      unreasonably relying on the fact that the use of the word “she” could have occurred with little or no resource implications in finding that the Term was not reasonable;
    3. (c)
      misstating the effect of the Custodial Operations Practice Directive (COPD), effective 21 September 2017 (referred to in the reasons as the “current COPD”);
    4. (d)
      acting unreasonably in finding that the evidence did not show that referring to Ms Tafao as female would have exposed Ms Tafao to any undue safety risks or would have been disruptive to the good order of the prison; and
    5. (e)
      failing to provide any, or any adequate, reasons for its finding at [170] (iv) that “we … do not consider that the evidence showed it would have exposed Ms Tafao to any undue safety risks or would have been disruptive to the good order of the prison”.
  3. [8]
    Although the grounds of the application for leave to appeal by Serco and Mr Walters are expressed differently, the substance of grounds 1 and 3 of their application reflects grounds (a), (b), and (e) of the State’s application.  Serco and Mr Walters assert in ground 2 of their application for leave to appeal (which accords with ground (d) of the State application) that the appeal tribunal erred by:

“a. disturbing the finding of Member Fitzpatrick that the evidence of [Mr Walters] be accepted with respect to the impact that referring to Ms Tafao as female would have upon the safety and good order of the prison;

b. unreasonably rejecting the evidence of [Mr Walters] in respect of the effect upon safety and the good order of the prison of referring to Ms Tafao as female; and

c. otherwise unreasonably concluding that referring to Ms Tafao as female would not have exposed her to any undue safety risks and would not have been disruptive to the good order of the prison.”

  1. [9]
    It will be sufficient to deal with both applications by addressing the grounds in the State’s application.  Grounds (a) to (c) are directed at the matters on which the appeal tribunal relied to find error in the Tribunal’s decision.  Grounds (d) and (e) are directed at the decision-making of the appeal tribunal on the issue of whether the Term was reasonable.

Relevant legislation and other provisions

  1. [10]
    Section 11 of the Act provides (omitting the examples at the conclusion of the section):

“(1) Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—

  1. (a)
    with which a person with an attribute does not or is not able to comply; and
  1. (b)
    with which a higher proportion of people without the attribute comply or are able to comply; and
  1. (c)
    that is not reasonable.
  1. (2)
    Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
  1. (a)
    the consequences of failure to comply with the term; and
  1. (b)
    the cost of alternative terms; and
  1. (c)
    the financial circumstances of the person who imposes, or proposes to impose, the term.
  1. (3)
    It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
  1. (4)
    In this section—

term includes condition, requirement or practice, whether or not written.”

  1. [11]
    Each applicant is a protected defendant for the purpose of s 319A of the CSA.  That meant they had the benefit of the additional protection of s 319G in respect of the claim of direct discrimination and the like provision of s 319H in respect of the claim of indirect discrimination.  Section 319G and s 319H are in part 12A of the CSA which was inserted by the Corrective Services and Other Legislation Amendment Act 2008 (Qld) (the Amendment Act).  Section 319B explains the purpose of part 12A and how the purpose is to be achieved.  Section 319B(1) provides:

“The purpose of this part is to maintain a balance between—

  1. (a)
    The financial and other constraints to which protected defendants are subject in their treatment of offenders; and
  1. (b)
    The need to continue to respect offenders’ dignity.”

Relevantly, the purpose set out in s 319B(1) is to be achieved primarily by modifying the Act’s application to the treatment of offenders by protected defendants.

  1. [12]
    Section 319H is in the following terms:

“(1) This section applies if a protected defendant imposes, or proposes to impose, a term—

  1. (a)
    with which an offender with an attribute does not or is not able to comply; and
  1. (b)
    with which a higher proportion of offenders without the attribute comply or are able to comply.
  1. (2)
    In considering whether for the Anti-Discrimination Act, section 11(1)(c) the term is reasonable, the tribunal must consider any relevant submissions made about any of the following—
  1. (a)
    the security and good order of any corrective services facility in which the offender was detained when the protected defendant imposed, or proposed to impose, the term;
  1. (b)
    the cost to the protected defendant of imposing an alternative term;
  1. (c)
    the administrative and operational burden that imposing an alternative term might place on the protected defendant;
  1. (d)
    the disruption to the protected defendant that imposing an alternative term might cause;
  1. (e)
    the budget constraints of the protected defendant;
  1. (f)
    the resources constraints of the protected defendant;
  1. (g)
    whether the imposing of, or proposal to impose, the term adequately meets the needs of the offender, notwithstanding the availability of an alternative term that more ideally meets the needs of the offender;
  1. (h)
    the need to respect offenders’ dignity;
  1. (i)
    whether the imposing of, or proposal to impose, the term unfairly prejudices other offenders;
  1. (j)
    any other matter the tribunal considers relevant.
  1. (3)
    In this section—

term includes condition, requirement or practice, whether or not written.”

  1. [13]
    Pursuant to s 204 of the Act it was for Ms Tafao to prove, on the balance of probabilities, that the applicants contravened the Act, but that requirement was relevantly subject to s 205 of the Act.  Section 205 provides that, in a case involving an allegation of indirect discrimination, it is for the party against whom the allegation is made to prove, on the balance of probabilities, that a term complained of is reasonable.
  2. [14]
    According to the evidence given in the Tribunal by Mr Shaddock who was the Acting Deputy Commissioner of Queensland Corrective Services, the COPDs are not statutory instruments, but the purpose of them is to act as a guide for staff and they are revised from time to time.  The nature of the COPDs was not in issue in the proceedings.  The relevant part of the COPDs that applied whilst Ms Tafao was a prisoner is set out at [41] of the original reasons and required staff to address transgender prisoners with the same respect given to all other prisoners and by either the name that they are currently registered as having or the name on the warrant committing the prisoner, or requiring the prisoner to be produced, to the facility.  The COPDs also provided that “All records must reflect the prisoner’s registered name and gender to ensure the accuracy and consistency of the prisoner’s identification.”.  The prison’s records recorded Ms Tafao as being of the male gender (at [7] of the original reasons).
  3. [15]
    The current COPD that related to “Admission and Induction” relevantly provided:

“Queensland Corrective Services (QCS) is committed to equality, diversity, inclusion and respect for human rights. Refer Appendix 16 Considerations regarding the Anti-Discrimination Act 1991.

While acknowledging the unique requirements of transgender prisoners, these do not take priority over safety and security considerations. As such, transgender prisoners are subject to all existing QCS prisoner management practices including demonstrating acceptable behaviour and complying with centre rules.

A prisoner who self-identifies as transgender will be accepted as such and treated as their acquired gender, to the extent practicable.

A transgender prisoner is to be referred to by their preferred name and the pronoun consistent with their acquired gender for example, a male to female transgender prisoner is to be referred to using the pronoun 'she or her'. This should occur in all communications with the prisoner, including verbal, written and also communication with third parties.

If a prisoner identifies as transgender, this information should be immediately reported to the relevant manager, who will then implement a process that is approved by the General Manager, to recognise the prisoner as such.

Transgender prisoners are to be managed on an individualised case by case basis, through a multidisciplinary approach.”

The original reasons

  1. [16]
    The applications to this court are not concerned with the Tribunal’s rejection of Ms Tafao’s claim for direct discrimination, but the observations the appeal tribunal made in respect of that part of the Tribunal’s decision became relevant to their analysis of whether the imposition of the Term was reasonable within the meaning of s 11(2) of the Act and s 319H of the CSA.  In respect of Ms Tafao’s complaint about the refusal by Serco and Mr Walters to address her in accordance with her gender identity rather than her gender, the Tribunal found (at [82]-[84] of the original reasons) that the differential treatment of Ms Tafao (who identified as female) compared to other male prisoners resulting from the uniform application of the COPD to all prisoners in the facility for male prisoners was less favourable to Ms Tafao because of the distress and offence caused to her by the treatment.  The Tribunal then found (at [86] of the original reasons) that the application of the COPD was the reason for refusal to use female pronouns in relation to Ms Tafao and not the attribute of gender identity.  This resulted in the conclusion (at [92] of the original reasons) that Ms Tafao was not the subject of direct discrimination by Serco and Mr Walters.  It was therefore not necessary for the Tribunal to consider the application of s 319G(3) of the CSA to determine whether the treatment was reasonable, but the Tribunal did so (at [91] of the original reasons) and found that, on the basis of Mr Walters’ evidence which the Tribunal accepted that the security and good order of the prison was a paramount consideration in the conduct of Serco and Mr Walters and that Ms Tafao’s own safety in an over-crowded male prison was a good reason for them not to focus on her gender identity, the treatment was reasonable in the circumstances.
  2. [17]
    I will now turn to the analysis by the Tribunal that resulted in the finding that was reversed by the appeal tribunal.
  3. [18]
    The Tribunal noted (at [178] of the original reasons) that Mr Walters required Ms Tafao to submit to a form of address in relation to the use of male personal pronouns consistent with her gender rather than her gender identity.  The Tribunal reasoned “that is a requirement to be a man whilst being addressed, rather than being able to identify as a female and to be addressed as a female”, but then asked “How can it be a requirement to ‘be a man’ when one is a man?”.  The Tribunal concluded (at [178] of the original reasons) with the finding by reference to this reasoning that no term or requirement had been imposed on Ms Tafao.
  4. [19]
    On the basis Ms Tafao had also argued the Term as a requirement to deny her gender identity when being addressed, the Tribunal proceeded on the basis (at [180] of the original reasons) that the requirement to “be a man” was another way of saying that Ms Tafao should ignore her gender identity.  The Tribunal then analysed the imposition of the Term in relation to the use of male pronouns.  The Tribunal concluded (at [182] of the original reasons) that, if that were the requirement, it was possible to conclude that Ms Tafao could not comply with the requirement because of the very nature of the attribute.
  5. [20]
    The Tribunal then dealt (at [183]-[194] of the original reasons) with the issue of whether the imposition of the Term was reasonable.
  6. [21]
    The Tribunal noted (at [186] of the original reasons) that Ms Tafao argued that denying her gender identity was not consistent with the COPD (which was a reference to the COPDs that applied whilst Ms Tafao was in prison).  Before the Tribunal, Serco and Mr Walters addressed the issue of reasonableness of the Term by reference to the requirements of s 319H(2) of the CSA.  The Tribunal noted (at [188] of the original reasons) their submission that Ms Tafao was addressed consistently with the applicable COPD and that Mr Walters’ evidence was that addressing Ms Tafao by reference to her gender (rather than gender identity) helped protect her personal safety and maintained good order and security in a male high security prison.  The Tribunal stated (at [191] of the original reasons):

“Consistent with my earlier finding that the second and third respondents’ conduct in using male personal pronouns to address the plaintiff was reasonable, because it was undertaken in compliance with the COPD, for the security and good order of the prison and for the safety of the applicant, I find that those reasons hold good in terms of an analysis required under s 11 of the AD Act and s 319H of the CS Act, in relation to the imposition of a term. I rely upon the evidence of Mr Walters and find that a term that the applicant ignore her gender identity when being addressed was reasonable in the circumstances.”

  1. [22]
    The Tribunal did not accept (at [192] of the original reasons) Ms Tafao’s submissions directed to the elements of s 319H of the CSA which go to the administration and operation of the prison, noting:

“Mr Walters is best placed to give evidence on those matters and I accept his evidence.  I do not think issues of cost are relevant to the question at hand.”

  1. [23]
    The Tribunal then concluded (at [193] of the original reasons) that, even though the use of male personal pronouns caused Ms Tafao distress, weighing that against the genuinely held reasons for doing so and the broader implications for the safe operation of the prison, it was reasonable to address Ms Tafao by reference to her gender not gender identity and implicitly to require Ms Tafao to ignore her gender identity when being addressed.

The reasons

  1. [24]
    The appeal tribunal did not uphold the appeal in relation to the Tribunal’s reasons for rejection of the direct discrimination claim, as the appeal tribunal concluded (at [79] of the reasons) that the finding of the Tribunal that the less favourable treatment of Ms Tafao was treatment not on the basis of the attribute of gender identity, but rather on the basis of the interpretation by Serco and Mr Walters of the COPD, was open on the evidence.  The appeal tribunal would, in any case, have rejected the direct discrimination claim, as the appeal tribunal was of the view (at [64] of the reasons) as the COPD applied male pronouns to all biologically male prisoners, it was the same treatment for all, so that the different impact for Ms Tafao was potentially indirect discrimination, not direct discrimination.
  2. [25]
    The appeal tribunal did, however, review the Tribunal’s approach to the application of s 319G of the CSA.  The appeal tribunal noted (at [95] of the reasons) that there was no evidence of the cost of implementing a practice which required prison staff to address transgender prisoners according to their acquired gender.  The appeal tribunal found (at [99] of the reasons) that there were factors that weighed in favour of the conclusion that the treatment was not reasonable within s 319G(2) and expanded on this conclusion (at [109] of the reasons).  That conclusion made no difference to how the appeal tribunal disposed of the appeal in respect of the claim for direct discrimination, because of the appeal tribunal’s agreement with the Tribunal’s conclusion (but for different reasons) there was no direct discrimination with respect to the use of male pronouns.
  3. [26]
    In dealing with appeal ground 5(c), the appeal tribunal noted (at [148] of the reasons) that the Tribunal found the Term was reasonable because it was undertaken by Serco and Mr Walters in compliance with the COPD (as they understood it) for the security and good order of the prison and for the safety of Ms Tafao.  The appeal tribunal then stated at [149]-[152] of the reasons:

[149] The Member did not accept the submissions of the applicant, directed to the elements of s 319H(2), were directed to ‘the administration and operation of SQCC’ and did not consider issues of cost relevant. In our view the Member was entitled to reject the submissions of the applicant regarding matters relating to the administration and operation of the corrective services facility. The Member preferred the evidence of the respondents in this regard, and there is no error in doing so. However, in our view, submissions relating to the issue of cost are relevant. If there is no cost in implementing the alternative treatment, then the absence of cost is a relevant factor. The legislature, in setting out a range of factors relevant to the question of ‘reasonableness’, have attempted, in our view, to ensure that the approach to the question of ‘reasonableness’ is a balanced one.

[150] Further, as we have considered above in relation to s 319G(3), there is no consideration of the fact that the current COPD requires transgender prisoners to be referred to in a manner consistent with their gender identity. We consider this relevant under s 319H(2)(j). Finally, as the applicant submitted, repeated written requests were made by Ms Tafao to the third respondent to be called by her name, Leilani, if she could not be called ‘she’. Ms Tafao emphasised that she found being called ‘he’ or ‘him’ highly distressing and offensive. We note that this suggestion to call Ms Tafao by her name, which was an option under the terms of the COPD, was not implemented. This is also relevant, in our view, under s 319H(2)(j), in considering whether the respondents’ treatment in continuing to refer to her by male pronouns was reasonable.

[151] Although the Member did consider relevant submissions made about the good order and security of the prison together with its administration and operation, she did not, in our view, consider the submissions made by the applicant which were relevant to other factors in s 319H(2) and under s 11(2) of the AD Act. We consider that the Member erred in failing to consider those submissions.

[152] For the reasons discussed earlier in considering reasonableness in relation to grounds of appeal 4(C) and (D), we again find after a fine balancing act that the conduct was not reasonable.”

The asserted errors made by the appeal tribunal in setting aside the Tribunal’s decision

  1. [27]
    The Tribunal’s finding that the Term was reasonable was a finding of fact on the basis of the evidence accepted by the Tribunal and that finding could be set aside by the appeal tribunal only if an error had been made by the Tribunal in reaching that finding.  The question of law raised in these applications is whether there was jurisdiction for the appeal tribunal to set aside the Tribunal’s decision.
  2. [28]
    The applicants point to three errors made by the appeal tribunal in dealing with the Tribunal’s reasons for finding the Term was reasonable and, as these were the three matters that were relied on by the appeal tribunal to set aside the Tribunal’s finding, submit that those errors precluded the appeal tribunal from finding the Tribunal had erred.
  3. [29]
    Those three asserted errors are:
    1. (a)
      the appeal tribunal misconstrued how the Tribunal dealt with the consideration of cost at [192] of the original reasons;
    2. (b)
      the appeal tribunal found that the Tribunal did not take into account the fact that the current COPD required transgender prisoners to be referred to in a manner consistent with their gender identity, when Ms Tafao had made no submission to the Tribunal in reliance upon the current COPD for the purpose of determining the reasonableness of the Term;
    3. (c)
      the appeal tribunal found that the Tribunal did not take into account Ms Tafao’s submission that she had made written requests to Mr Walters to be called by her name Leilani, if she could not be called “she” which was described by the appeal tribunal as a relevant matter under s 319H(2)(j), when Ms Tafao had made no submission to the Tribunal to the effect that Mr Walters’s conduct in not implementing the option of calling Ms Tafao by her first name in lieu of female pronouns bore upon the reasonableness of the Term.
  4. [30]
    I will deal with each of these asserted errors in turn.

Did the appeal tribunal misconstrue how the Tribunal dealt with cost?

  1. [31]
    Before the Tribunal, Ms Tafao in addressing the matters pursuant to s 319H(2) asserted (at paragraph 181(e) of her written submissions) that “imposing an alternative term would have cost nothing and have no negative impact on the budget or resource constraints” at the prison.
  2. [32]
    The applicants submit that [149] of the reasons shows that the appeal tribunal misconstrued [192] of the original reasons, as it is apparent from the appeal tribunal’s reasons that the appeal tribunal read [192] of the original reasons as the Tribunal not treating the issue of cost as a relevant consideration.  The applicants argue that a fair reading of the original reasons shows the Tribunal did consider the submissions on the issue of the cost of implementing a practice of using pronouns in accordance with gender identity, when addressing transgender prisoners, but found that cost was not relevant to the “question at hand” which was the safety of Ms Tafao and the security and good order of the prison.  Ms Tafao submits that the appeal tribunal did not find that the Tribunal failed to consider Ms Tafao’s submissions, but the appeal tribunal found, as was the case, that the Tribunal concluded that the issue of costs was not relevant to reasonableness.
  3. [33]
    As submitted by the applicants, the Tribunal was saying (at [192] of the original reasons) that the question of cost in using female pronouns did not alter the significance of, or made no difference to, the safety concerns for Ms Tafao and the security and good order of the prison which were the reasons given by Mr Walters for imposing the Term.  It was taken into account by the Tribunal, but did not detract from the weight of the other matters that Serco and Mr Walters relied on for imposing the Term.  The appeal tribunal was therefore mistaken in their understanding of how the Tribunal dealt with the cost of using female pronouns when addressing Ms Tafao and erred in treating that finding as an error on the part of the Tribunal.

Should the Tribunal have considered the effect of the current COPD?

  1. [34]
    There were various COPDs that applied during the time of Ms Tafao’s imprisonment in 2015.  The findings made by the appeal tribunal about the reasonableness of the Term were made by reference to the “current COPD” which came into effect from 21 September 2017 and therefore did not apply to Ms Tafao’s period in prison.  The inference from [150] of the reasons (read with [109] of the reasons) is that the appeal tribunal considered the changes effected by the current COPD in the recognition given to a transgender prisoner’s acquired gender showed that the concerns of Mr Walters about the security and good order of the prison and the safety of Ms Tafao, if female pronouns were used in addressing her, were not well-founded.  It should be noted, however, that Mr Walters was not cross-examined about the effect of the current COPD on the views he held at the time Ms Tafao was in prison.
  2. [35]
    The applicants’ submissions included the following. The matters that the Tribunal could consider under s 319H(2) of the CSA were qualified by the introductory words that “the Tribunal must consider any relevant submissions made about any of the following”.  Even s 319H(2)(j) which incorporates any other matter the Tribunal considers relevant must be the subject of a relevant submission made to the Tribunal, before the Tribunal can consider it.  If any of the matters set out in paragraphs (a) to (j) of s 319H(2) were the subject of submissions to the Tribunal, those matters must be considered by the Tribunal.  No submission had been made by Ms Tafao based on the current COPD for the purpose of the indirect discrimination claim as articulated by the appeal tribunal (at [150] of the reasons).
  3. [36]
    The submission that was made on behalf of Ms Tafao to the Tribunal (at paragraph 79 of Ms Tafao’s written submissions) was to the effect the current COPD was clear as to the expectations of those working with transgender inmates and that, as the principle underpinning the COPDs (that transgender prisoners were to be addressed with respect and in a way consistent with their gender identity) had not changed, the COPDs that applied during Ms Tafao’s time in prison were “not inconsistent” with the current COPD.  This submission was repeated by Ms Tafao in paragraph 182(c) of her written submissions to the Tribunal dealing with the reasonableness of the Term pursuant to s 319H(2).
  4. [37]
    Ms Tafao disputes the construction of the introductory words to s 319H(2) advanced by the applicants.  Ms Tafao submits that the introductory words mandate that the Tribunal must consider any relevant submissions made about any of the matters set out in paragraphs (a) to (j), but that does not preclude the Tribunal from taking into account matters bearing on reasonableness that it otherwise considers relevant for the purpose of determining whether a term is reasonable.  It is not critical to the operation of s 319H(2) that those matters be the subject of specific submissions for the purpose of considering the reasonableness of a term under s 319H of the CSA read with s 11(1)(c) and s 11(2) of the Act, if the material was otherwise properly before the Tribunal.
  5. [38]
    It is therefore necessary to resolve this issue of construction of s 319H(2).  The appeal tribunal had set out (at [15] of the reasons) the extract from the Explanatory Note for the Bill that was enacted as the Amendment Act relating to s 319G and s 319H, but the extract does not assist in this specific question of construction.  It does assist (at p 15) in confirming the purpose of the provisions in introducing the test of reasonableness for direct discrimination found in s 319G(2) of the CSA and modifying the application of the test of reasonableness that is found in s 11(1)(c) and s 11(2) of the Act for indirect discrimination:

“These sections make it clear that the correctional environment is unique and that any alleged discriminatory action or conduct must be considered within this context.

These provisions require the [Tribunal] to consider whether or not correctional management’s attempt to accommodate such a request was reasonable or not under the circumstances in relation to both direct and indirect discrimination cases.”

  1. [39]
    The content of the factors listed in paragraphs (a) to (j) of s 319G(3) are similar to the factors listed in paragraphs (a) to (j) of s 319H(2).  The differences are due to the respective requirements for direct discrimination and indirect discrimination.  Where necessary, the content of the paragraphs in s 319G(3) is expressed to accommodate the issue of the treatment, or proposed treatment, of the offender in respect of a claim of direct discrimination and the content of the paragraphs in s 319H(2) is expressed to accommodate the imposition of a term, or proposed term, on the offender in respect of a claim of indirect discrimination.  By way of example, s 319G(3)(b) refers to “the cost to the protected defendant of providing alternative treatment”, whereas s 319H(2)(b) refers to “the cost to the protected defendant of imposing an alternative term”.
  2. [40]
    Section 319G(4) of the CSA equates the position of a protected defendant responding to an allegation of direct discrimination with the position that applies under s 205 of the Act that imposes the burden of proof on a respondent to a complaint alleging indirect discrimination to prove that the term is reasonable.  Section 319G(4) provides that the protected defendant must prove, on the balance of probabilities, that the treatment, or proposed treatment, is reasonable.
  3. [41]
    There must be a purpose in the inclusion of the words “any relevant submissions made about” in the introductory part of s 319H(2).
  4. [42]
    The effect of Ms Tafao’s submission about those introductory words is to make any of the matters listed in paragraph (a) to (j) on which relevant submissions are made as mandatory for the Tribunal to consider, but allowing the Tribunal still to consider other matters on which submissions have not been made, but which the Tribunal considers relevant.  If that were the case, it does not give a sensible operation to paragraph (j) which, by virtue of the opening words of s 319H(2), restricts any other matters which the tribunal considers relevant to those on which relevant submissions are made.
  5. [43]
    Section 11(2) of the Act makes the general statement that whether a term is reasonable depends on all the relevant circumstances of the case.  The three examples that are then set out are not intended to be exhaustive, if reasonableness is being determined pursuant only to s 11(2) of the Act.  It should be noted that the three examples are reflected in the longer list of matters set out in s 319(H)(2) of the CSA.
  6. [44]
    Section 11(2)(a) of the Act refers to “the consequences of failure to comply with the term”.  In the custodial context, that is covered by matters set out in paragraphs (a), (c), (d) and (i) of s 319H(2).  Section 11(2)(b) of the Act refers to “the cost of alternative terms” which equates to s  319H(2)(b).  Section 11(2)(c) of the Act refers to “the financial circumstances of the person who imposes, or proposes to impose, the term”.  This equates to the matters covered by paragraphs (e) and (f) of s 319H(2).  Consistent with the balancing exercise that is referred to in s 319B(1) of the CSA, the matters referred to in paragraphs (g) and (h) of s 319H(2) address the need to continue to respect offenders’ dignity and needs.
  7. [45]
    In the context of the legislative intention to modify the application of s 11(2) of the Act in the custodial context, the effect of s 319H(2) is to prescribe the matters which the Tribunal can consider in deciding whether the term is reasonable, which removes the possibility of the Tribunal considering matters pursuant to s 11(2) of the Act which the Tribunal could not consider in the particular case pursuant to s 319H(2) of the CSA.  The relevant circumstances of the case that determine whether a term is reasonable pursuant to s 11(2) of the Act are therefore confined to those within s 319H(2) of the CSA, when that provision is applicable.  This construction gives effect to the catch-all provision found in paragraph (j) of s 319H(2) that is also subject to the qualification that a relevant submission must be made about “any other matter the tribunal considers relevant”.  It is consistent with the burden of proof that is imposed on a protected defendant that submissions have to be made about any of the matters set out in paragraphs (a) to (j) for the Tribunal to consider them.  It is consistent with the purpose of  putting limitations on the circumstances when indirect discrimination against a prisoner is not reasonable that the Tribunal can consider only matters that fall within paragraphs (a) to (j) of s 319H(2) where relevant submissions have been made by either party to the Tribunal.  The limitation is in the fact that a submission must be made to the Tribunal on a matter that falls within paragraphs (a) to (j) of s 319H(2) before the Tribunal can (and then must) consider the matter.  The submission is relevant because it is made on one of those matters.  I suggest that this construction does not preclude the Tribunal inviting parties to make submissions on one or more of the matters in paragraph (a) to (j) of s 319H(2), if the parties have not otherwise made submissions on a matter which the Tribunal may perceive to be relevant.
  8. [46]
    If relevant submissions are made by a party on any of the matters covered by paragraphs (a) to (j) of s 319H(2), those submissions must be considered by the Tribunal, but the weight to be given to the submissions on any of the matters is a matter for the Tribunal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41.
  9. [47]
    The appeal tribunal therefore was in error in considering that the Tribunal failed to consider the content of the current COPD, when no relevant submission was made to the Tribunal by any party in respect of an inference based on the current COPD (as articulated by the appeal tribunal at [150] of the reasons) in connection with the indirect discrimination claim.  It was the construction of the COPDs that applied to Ms Tafao whilst in prison that was the issue raised on her behalf before the Tribunal and the current COPD was relied on, in that context, for an argument of consistency between versions of the COPDs and not the change effected by the current COPD that was identified by the appeal tribunal (at [109] of the reasons).
  10. [48]
    It is therefore not necessary to deal with the additional submission made by the State in relation to the current COPD that the current COPD did not impose an absolute requirement that transgender prisoners be referred to in a manner consistent with their gender identity and that the appeal tribunal misconstrued the current COPD in concluding that it did.  If it were necessary, it is apparent from the extract of the current COPD set out above that the current COPD qualifies the requirement to treat a transgender prisoner as their acquired gender by inclusion of the words “to the extent practicable”, emphasises the primacy of the safety and security considerations and anticipates a process of management of the transgender prisoner on a case by case basis approved by the general manager.  It therefore did not reflect the content of the current COPD for the appeal tribunal to describe it as requiring “transgender prisoners to be referred to in a manner consistent with their gender identity”, without acknowledging the qualifications to that requirement within the current COPD.

Should the Tribunal have considered the effect of Ms Tafao’s request to be called by her first name?

  1. [49]
    The State suggests it is not clear from [150] of the reasons whether the appeal tribunal was stating that the submission was made to the Tribunal in respect of Ms Tafao’s request to be called by her first name, but it was not considered by the Tribunal, or whether the appeal tribunal was saying that it was a matter that ought to have caused the reasonableness finding to be in favour of Ms Tafao.  In view of the appeal tribunal’s observation (at [150] of the reasons) that the request by Ms Tafao to be called by her name Leilani, if she could not be called by female pronouns, was “relevant” under s 319H(2)(j), the appeal tribunal was asserting that the Tribunal had not taken that submission into account.  On that basis, the applicants point out that the submission by Ms Tafao to the Tribunal about Mr Walters not implementing the option of calling her by her first name (in lieu of female pronouns) was made for the purpose of the direct discrimination claim (as identified at [14] of the original reasons) and not for the purpose of the indirect discrimination case based on the imposition of the Term.  The applicants submit that no submission had been made to the Tribunal that Mr Walters’ conduct in not implementing the option of calling Ms Tafao by her first name in lieu of female pronouns bore upon the reasonableness of the Term.
  2. [50]
    Ms Tafao relies on the written submissions made to the Tribunal in which frequent reference was made to her request to Serco and Mr Walters to be called by her first name.  In the part of Ms Tafao’s written submissions dealing with indirect discrimination, she summarised her arguments as to why the Term was not a reasonable one and stated (at paragraph 188):

“The alternative of not imposing the term on the applicant and accepting and acknowledging her gender identity by using female personal pronouns, addressing her as a woman and not instructing and counselling her to mitigate her feminine and transgender identity would have caused no financial burden and would in fact have relieved the resource burden occasioned by the imposition of the term.”

When referring to “addressing her as a woman”, that submission arguably incorporates the request made by her to use her name Leilani, but the submission was for the purpose of dealing with the cost and impact on resources of the alternative term to the Term.

  1. [51]
    The written submissions by Ms Tafao in connection with the direct discrimination case based on her request were directed at the construction and application of the COPD, including whether it required Ms Tafao to be addressed by her name of Leilani and whether the reliance on it by Serco and Mr Walters for using male pronouns when staff addressed Ms Tafao was justified.
  2. [52]
    It is of note that the assertion that Ms Tafao had requested that she be called by her first name (which is a female name) is merely another way of objecting to the imposition of the Term that she identify as a man.  It did not add anything to the analysis of the reasonableness of the Term undertaken by the Tribunal in respect of the factors that weighed in favour of using male pronouns and against the use of female pronouns to take into account the option of addressing Ms Tafao by her first name.
  3. [53]
    Again, the Tribunal was bound to consider under s 319H(2) of the CSA a matter for the purpose of that provision on which relevant submissions were made.  There was no specific submission made by Ms Tafao to the Tribunal that the Term was unreasonable, because there was the option of calling Ms Tafao by her first name.  That is not surprising in view of how the case was conducted on behalf of Ms Tafao before the Tribunal.  The issue about calling her by her first name arose in the direct discrimination case (as set out in [14] of the original reasons) on the basis that she was treated less favourably than another prisoner in the male facility who did not identify as female where that other prisoner had requested to be referred to by their name or by the use of the correct gender pronoun and acted in a manner consistent with their gender identity.  It could not be said that the Tribunal had failed to consider pursuant to s 319H(2)(j) Ms Tafao’s request to be called by her female name rather than be referred to by male pronouns, when a submission to that effect was not made for the purpose of s 319H(2) of the CSA.
  4. [54]
    The appeal tribunal was therefore in error in attributing a failure to the Tribunal to consider a submission pursuant to s 319H(2)(j) of the CSA that had not been made for that purpose.

The appeal tribunal erred in setting aside the Tribunal decision

  1. [55]
    In view of the fact that the three errors on which the appeal tribunal relied to set aside the Tribunal’s decision were not errors, there was no basis in law for the appeal tribunal to re-visit the issue that was decided by the Tribunal that the imposition of the Term was reasonable, so as to preclude a finding of indirect discrimination.
  2. [56]
    That means that the appeal tribunal made an error of law in setting aside the Tribunal’s decision.  The error was significant, as it resulted in a reversal of the Tribunal’s decision in respect of Ms Tafao’s claim for indirect discrimination.  It is therefore appropriate to grant the leave to appeal, allow the appeals and set aside the other orders made by the appeal tribunal that granted relief to Ms Tafao.
  3. [57]
    It is therefore strictly unnecessary to consider grounds (d) and (e) which relate to the appeal tribunal’s decision on the issue that had, in fact, been decided by the Tribunal without appealable error.  As the matter was argued, I will deal with aspects of it briefly.

The substituted decision of the appeal tribunal

  1. [58]
    The reasons for the appeal tribunal’s decision that the imposition of the Term was not reasonable are set out at [152] and [170] of the reasons.  The latter paragraph states:

“The term was not reasonable for the following reasons:

  1. (i)
    First, the use of the word ‘she’ would have been consistent with the need to respect Ms Tafao’s dignity.
  1. (ii)
    The use of the word ‘she’ could have occurred with little or no resource implications.
  1. (iii)
    Nor would the use of the word ‘she’ have imposed any significant administrative or operational burden on the respondents.
  1. (iv)
    We also do not consider that the evidence showed it would have exposed Ms Tafao to any undue safety risks or would have been disruptive to the good order of the prison.
  1. (v)
    Finally, we note that since Ms Tafao’s complaint, the COPD has been amended so that now any transgender prisoners are to be referred to in a manner consistent with the gender with which they identify.”
  1. [59]
    The Tribunal had (at [152] of the reasons) concluded that the imposition of the Term was not reasonable by applying their earlier discussion (at [85] - [109] of the reasons) when considering reasonableness under s 319G(3) of the CSA in relation to the claim for direct discrimination based on the use by Serco and Mr Walters of male pronouns to address Ms Tafao.  In the course of that discussion, the appeal tribunal set out (at [90] of the reasons) extracts from the evidence of Mr Walters and then set out (at [91]) their view of the evidence of Mr Walters:

While we accept that the evidence did not establish or support a finding that the use of male pronouns actually improved or maintained good order and security, it was clear from the evidence of those who operated the prison that they believed that it did. Their opinions are based on their experience in operating prisons and their knowledge of how prisoners react to given situations. In our view, the evidence of Mr Walters provided a basis on which the Member could conclude that the treatment (in this case, the use of male pronouns) was at least consistent with the maintenance of the security and good order of the prison. Moreover, as Mr Walters made clear, he was concerned that the use of the female pronoun would promote disorder. Thus, to highlight Ms Tafao’s identified gender may have had ‘negative consequences’ in the ways he identified. We do not accept that the Member had no evidence upon which to base her conclusion that the use of male pronouns was consistent with maintaining the good order and security of the prison.”

  1. [60]
    The appeal tribunal found (at [105] of the reasons) that the Tribunal erred in omitting to consider submissions made by Ms Tafao about matters in s 319G(3) other than the security and good order of the prison, Ms Tafao’s personal safety and the offence to her dignity, but the appeal tribunal otherwise agreed (at [82] and [107] of the reasons) with the Tribunal’s conclusion there was no direct discrimination.  The appeal tribunal noted (at [108] of the reasons) that, if they were wrong in that conclusion and the treatment did constitute direct discrimination, they “would find that, although the matter is finely balanced, taking into account all the submissions made including regarding the respondents’ subsequent conduct, the treatment was not reasonable within the meaning of s 319G(3)”.
  2. [61]
    The appeal tribunal then set out (at [109] of the reasons) the balancing exercise that they undertook to reach the conclusion that the treatment of Ms Tafao by addressing her using male pronouns by the applicants was not reasonable:

We have given due weight to the evidence of Mr Walters as to why he used the male pronoun in respect to the applicant. We accept that he honestly held the views he espoused, and that the view he held was one reasonable view. However, the test of reasonableness is an objective one. The difficulty we have, in this objective context, is reconciling Mr Walters’ views with the position subsequently adopted by the respondents. We also consider the treatment was not reasonable for the following reasons:

  1. (a)
    there would be no cost of the alternative treatment;
  1. (b)
    there was no increased administrative or operational burden associated with the alternative treatment;
  1. (c)
    there were no relevant budget constraints;
  1. (d)
    it was inconsistent with the need of Ms Tafao to have her dignity respected;
  1. (e)
    the treatment did not adequately address her needs; and
  1. (f)
    further, the revised COPD implements the alternative treatment.”
  1. [62]
    Ms Tafao had made specific submissions to the Tribunal in respect of each of the complaints and the submissions on reasonableness in respect of the direct discrimination claim in relation to the use of male pronouns (at paragraphs 157 to 162 of her written submissions) were largely the same as the submissions on reasonableness made by Ms Tafao for the indirect discrimination claim in respect of the use of male pronouns (at paragraphs 179 to 189 of her written submissions).  As set out above, no relevant submission had been made to the Tribunal by any party in respect of an inference based on the current COPD (as articulated by the appeal tribunal at [150] of the reasons) in connection with the indirect discrimination claim.  The fact that the current COPD was in different terms to the COPDs that applied whilst Ms Tafao was in prison was therefore not a matter that the appeal tribunal could take into account under s 319H(2) of the CSA in disregarding the evidence of Mr Walters about the concerns he had for the security and good order with the prison and the safety of Ms Tafao, if female pronouns were used in addressing her.  There is also the issue of the failure of the appeal tribunal to acknowledge the qualifications within the current COPD in considering the changes it effected.
  2. [63]
    In addition, the appeal tribunal included in paragraph (iv) of [170] of the reasons a conclusion about what the evidence showed in respect of not exposing Ms Tafao to any undue safety risks or being disruptive to the good order of the prison, if Ms Tafao was addressed by the use of female pronouns.  The statement by the appeal tribunal at [170](iv) is inconsistent with Mr Walters’ evidence that was summarised at [90] of the reasons and the effect of which the appeal tribunal had set out accurately at [91] of the reasons and accepted that Mr Walters’ evidence provided a basis in respect of the direct discrimination claim for the Tribunal to conclude that the use of male pronouns was at least consistent with the maintenance of the security and good order of the prison.
  3. [64]
    The appeal tribunal does not explain in its reasons how it moved from the acceptance (at [91] of the reasons) of what Mr Walters’ evidence on this aspect showed to a conclusion (at [170](iv) of the reasons) that the evidence showed the use of female pronouns would not have exposed Ms Tafao to any undue safety risks or would have been disruptive to the good order of the prison.  The reversal in that finding is different from taking Mr Walters’ evidence into account and balancing it with the inference drawn by the appeal tribunal from the change in policy about addressing transgender persons reflected in the current COPD.
  4. [65]
    It is not necessary to conclude whether these errors in the approach of the appeal tribunal to its decision-making on whether the Term was reasonable would have otherwise justified a grant of leave to appeal, as the applications have been determined by reference to the other grounds of appeal.

Orders

  1. [66]
    As the State in its written outline sought to have costs reserved, it is appropriate to give the parties the opportunity to file and serve submissions on what are the appropriate costs orders after these reasons are published.  The question of costs will then be dealt with on the basis of the written submissions.
  2. [67]
    The following orders should be made in each appeal:
  1. Leave to appeal against orders 2, 3, 4 and 6 of the appeal tribunal made on 22 May 2020.
  2. Appeal allowed.
  3. Orders 2, 3, 4 and 6 are set aside.
  4. Any submissions on costs must be made in writing, not exceed two A4 pages and be filed and served within seven days of the date of publication of these reasons.
Close

Editorial Notes

  • Published Case Name:

    State of Queensland v Tafao & Ors; Serco Australia Pty Ltd & Anor v Tafao & Anor

  • Shortened Case Name:

    State of Queensland v Tafao

  • MNC:

    [2021] QCA 56

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Philippides JA, Mullins JA

  • Date:

    26 Mar 2021

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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