Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment
  • Appeal Pending

Tafao v State of Queensland & Ors[2018] QCAT 409

Tafao v State of Queensland & Ors[2018] QCAT 409

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Tafao v State of Queensland & Ors [2018] QCAT 409

PARTIES:

LEILANI TAFAO

(applicant)

v

STATE OF QUEENSLAND

(first respondent)

SERCO AUSTRALIA PTY LTD

(second respondent)

MARK WALTERS

(third respondent)

APPLICATION NO/S:

ADL075-16

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

16 November 2018

HEARING DATE:

7 and 8 February 2018

HEARD AT:

Brisbane

DECISION OF:

Member Ann Fitzpatrick

ORDERS:

  1. The application is dismissed.
  2. The First, Second and Third Respondents to file and serve any submissions in relation to costs by 4pm on 3 December 2018.
  3. The Applicant to file and serve any submissions in relation to costs by 4pm on 17 December 2018.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – INDIRECT DISCRIMINATION – where the applicant was a transgender woman prisoner in a male correctional facility – where the prisoner had the protected attribute of gender identity – where the prisoner was referred to by male pronouns – where the prisoner was required to mitigate behaviours – where it was argued the prisoner was treated less favourably than a cisgender prisoner – where it was argued the prisoner was subject to a term to be a man contrary to the prisoner’s gender identity – vicarious liability considered

Anti-Discrimination Act 1991 (Qld), s 7(m), s 8, s 10,
s 11, s 101, s 133

Corrective Services Act 2006 (Qld), Chapter 6, Part 12A, Part 12B, s 319G, s 319I

Chester v Detective Senior Constable Jane Barnaby & Ors (No.2) [2014] QCAT 695

Dovedeen Pty Ltd & Anor v GK [2013] QCA 116

Green v State of Queensland, Brooker and Keating [2017] QCAT 8

Lyons v State of Queensland [2015] QCA 159

Mahommed v State of Queensland (2006) QADT 21

McEvoy v Lobban [1990] 2 Qd R 235

Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92

SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749

Sinden v State of Queensland [2012] QCAT 284

South Sydney District Rugby League Football Club Ltd v News Limited & Ors [2000] FCA 1541

State of Queensland v Barney [2013] QCATA 104

Tung v State of Queensland [2013] QCAT 251

Woodforth v State of Queensland [2017] QCA 100

APPEARANCES & REPRESENTATION:

 

Applicant:

S Robb, instructed by Caxton Legal

First Respondent:

J W Merrell, instructed by Crown Law

Second and Third Respondents:

B J Heath, solicitor of Carter Newell

REASONS FOR DECISION

Background

  1. [1]
    The applicant was incarcerated at the Southern Queensland Correctional Centre (‘SQCC’) from 9 March 2015 to 5 November 2015.
  2. [2]
    The applicant is a transgender woman. When born, the applicant was identified as male on her Birth Certificate. The applicant has lived as a female since she was 13 or 14 years old. The applicant has taken hormone therapy since she was approximately 15 years old and underwent partial gender reassignment surgery in approximately 2002.
  3. [3]
    The applicant is identified as female on her New Zealand passport.
  4. [4]
    The applicant was described on the Order for Transfer of a Prisoner prepared pursuant to section 68 of the Corrective Services Act 2006 (Qld) as having the male gender.
  5. [5]
    The second respondent operates the SQCC pursuant to an agreement between the second respondent and the first respondent, being the ‘Management and Operation Agreement for the Southern Queensland Correctional Centre’, executed 28 July 2011.
  6. [6]
    The third respondent is the Director of the SQCC.
  7. [7]
    The third respondent gave uncontested evidence that only male prisoners are incarcerated at the SQCC. His evidence with respect to prisoners who are transgender people is that they are incarcerated at the SQCC when they are ‘pre-operational’. The third respondent said that no one with a penis goes to a female centre. By that evidence, I have concluded that the applicant retained a penis and that is the basis for the applicant’s incarceration at SQCC and description on the Order for Transfer of a Prisoner as being of the male gender.
  8. [8]
    It is also uncontentious that the description of male gender was entered into ‘IOMS’, being the Integrated Offender Management Strategy, a prison document management system.

Applicant’s Complaints

  1. [9]
    The applicant contends that she was the subject of both direct and indirect discrimination within the meaning of sections 10 and 11 of the Anti-Discrimination Act 1991 (Qld) (‘the Act’).
  2. [10]
    The applicant also contends that pursuant to Chapter 6, Part 12A of the Corrective Services Act 2006 (‘CS Act’), the acts or omissions constituting the direct or indirect discrimination against the applicant were done or made in bad faith by the third respondent.
  3. [11]
    The applicant claims that the second and third respondents unlawfully discriminated against her in the area of administration of State laws and programs. It is claimed that the third respondent is directly liable for unlawful discrimination actions and that the second respondent is directly liable for the unlawful discrimination constituted by its own actions through its employees and agents. The second respondent is claimed to be vicariously liable under section 133 of the Act. The first respondent is claimed to be vicariously liable under section 133 of the Act for the actions of its agents, including the third respondent and the second respondent.

Direct Discrimination

  1. [12]
    It is contended that direct discrimination arose through:
    1. (a)
      correspondence dated 16 June 2015 from the third respondent to the applicant, stating that:
      1. a comment made by an Officer Ash, that the SQCC was a male centre and that it did not accommodate female prisoners, was a factual comment;
      2. staff at the SQCC will:
  1. refer to the applicant as Leilani Tafao; and
  2. not refer to the applicant as ‘woman, she or her…’;
    1. (b)
      correspondence dated 20 July 2015 from the third respondent to the applicant, refusing to use female pronouns when addressing the applicant ((a) and (b) together the Pronoun Issue); and
    2. (c)
      imposing the first functional Intensive Management Plan (‘IMP’) dated 23 August 2015 and the second functional IMP dated September 2015 (‘the IMP Issue’).
  1. [13]
    The applicant says that the discrimination was direct discrimination within the meaning of section 10(1) of the Act in that the respondents treated the applicant, being a person with the attribute of gender identity, less favourably than a cisgender male prisoner at SQCC would be treated in circumstances that were the same or not materially different.
  2. [14]
    It is said the respondents treated the applicant less favourably in the administration of State laws or programs than they would treat another prisoner who does not identify as a member of the opposite sex in circumstances where that other prisoner had:
    1. (a)
      requested to be referred to by their name or by the use of the correct gender pronoun; and
    2. (b)
      acted in a manner consistent with their gender identity.

Indirect Discrimination

  1. [15]
    The applicant contends that the second and third respondents indirectly discriminated against the applicant pursuant to section 11 of the Act in that the respondents imposed a term that the applicant be a man.
  2. [16]
    It is said this term was imposed on the applicant:
    1. (a)
      by the respondents’ use of male pronouns in addressing the applicant, including in response to the applicant’s request to be addressed using female pronouns, for instance, in written correspondence during the applicant’s incarceration, including in letters from Mr Walters dated 16 June 2015 and 20 July 2015, and in the IMP;
    2. (b)
      by referring to the applicant as a man, including by Officer Ash, on 15 May 2015 when he said words to the effect of, ‘What lady, there’s no lady here, only a man, this is a man’s prison’ and by Mr Walters in a letter dated 16 June 2015 in which Mr Walters stated that Officer Ash’s comment that, ‘This is a male centre and we do not accommodate female prisoners’ as ‘a factual comment’;
    3. (c)
      by the IMPs advising that the applicant should mitigate her ‘transgendered… behaviour’ and reduce her ‘overtly feminised and sexually-laden behaviour appropriate to maintaining safe and appropriate conditions in a male correctional facility’;
    4. (d)
      by the Custodial Operation Practice Directive (‘COPD’) dealing with Accommodation and Case Management and its application, including letters from the third respondent to the applicant dated 16 June 2015 and 20 July 2015.
  3. [17]
    The applicant also contends that the term that the applicant ‘be a man’ was a term:
    1. (a)
      with which the applicant, having the attribute of gender identity, could not comply; and
    2. (b)
      with which a higher proportion of people without the attribute comply or are able to comply; and
    3. (c)
      that was not reasonable.

Bad Faith

  1. [18]
    The applicant contends that pursuant to Chapter 6, Part 12A of the Corrective Services Act 2006, the acts or omissions constituting the direct or indirect discrimination against the applicant were done or made in bad faith by the third respondent. It is said the acts or omissions were done or made in bad faith, in that:
    1. (a)
      they were done or made deliberately;
    2. (b)
      they were done or made with the knowledge that the applicant identifies as, and lives as, a woman;
    3. (c)
      they were done or made with the knowledge that the applicant objected to the acts or omissions;
    4. (d)
      they were done or made under the guise of ordinary management;
    5. (e)
      they had a material effect on the applicant’s rights and legitimate expectations, including to not experience discrimination on the basis of gender identity and to freedom of association within the prison community.
  2. [19]
    The applicant says that no non-compensatory Order effectively redresses the applicant for the stress, hurt, humiliation and psychological distress caused to her in the circumstances.

Legal Framework

  1. [20]
    Section 7(m) of the Act provides:

7 Discrimination on the basis of Certain Attributes Prohibited

The Act prohibits discrimination on the basis of the following attributes -

(m) Gender identity.

  1. [21]
    ‘Gender identity’ is defined in the Schedule to the Act as:

In relation to a person, means that the person -

  1. (a)
    identifies or has identified, as a member of the opposite sex by living or seeking to live as a member of that sex; or
  1. (b)
    is of indeterminate sex and seeks to live as a member of a particular sex.
  1. [22]
    Section 8 of the Act provides:

8 Meaning of Discrimination on the Basis of an Attribute

Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of -

  1. (a)
    a characteristic that a person with any of the attributes generally has; or
  1. (b)
    a characteristic that is often imputed to a person with any of the attributes; or
  1. (c)
    an attribution that a person is presumed to have, or to have had at any time, by the person discriminating; or
  1. (d)
    an attribute that a person had, even if the person did not have it at the time of the discrimination.
  1. [23]
    Section 10 of the Act provides:

10 Meaning of Discrimination

  1. (1)
    Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
  1. (2)
    It is not necessary that the person who discriminates considers the treatment is less favourable.
  1. (3)
    The person’s motive for discriminating is irrelevant.
  1. (4)
    If there are two or more reasons why a person treats or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.

  1. [24]
    Section 11 of the Act provides:

11 Meaning of Indirect Discrimination

  1. (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. [25]
    The CS Act modifies the Act. In particular, section 319G of the CS Act applies if a protected defendant treats, or proposes to treat, an offender with an attribute less favourably than another offender without the attribute in circumstances that are the same or not materially different.
  2. [26]
    A ‘protected defendant’ is defined to include, the State, but only in relation to a matter arising out of the administration of the CS Act; an entity engaged under the CS Act whose functions include rehabilitating offenders; an engaged service provider or an individual employed or engaged by such an entity. I find that the respondents are protected defendants.
  3. [27]
    Section 319G(2) of the CS Act provides that a protected defendant does not directly discriminate against the offender if the treatment or proposed treatment is reasonable.
  4. [28]
    Section 319G(3) of the CS Act provides that in considering whether the treatment, or proposed treatment, 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 treated, or proposed to treat, the offender less favourably;
    2. (b)
      the cost to the protected defendant of providing alternative treatment;
    3. (c)
      the administrative and operational burden that providing alternative treatment might place on the protected defendant;
    4. (d)
      the disruption to the protected defendant that providing alternative treatment might cause;
    5. (e)
      the budget constraints of the protected defendant;
    6. (f)
      the resources constraints of the protected defendant;
    7. (g)
      whether the treatment, or proposed treatment, adequately meets the needs of the offender, notwithstanding the availability of alternative treatment that more ideally meets the needs of the offender;
    8. (h)
      the need to respect the offender’s dignity;
    9. (i)
      whether the treatment or proposed treatment, unfairly prejudices other offenders;
    10. (j)
      any other material the Tribunal considers relevant.
  5. [29]
    Section 319G(4) provides that in a case involving an allegation of direct discrimination by an offender against a protected defendant, the protected defendant must prove, on the balance of probabilities, that the treatment or proposed treatment, is reasonable.
  6. [30]
    In relation to indirect discrimination, in considering whether the term in question is reasonable, section 319H of the CS Act provides that the Tribunal must consider any relevant submissions about the matters set out at (a)-(j) above.
  7. [31]
    Section 319I provides that if the Tribunal decides a protected defendant contravened the Anti-Discrimination Act, it may make a Compensation Order only if the contravention happened because of an act or omission made in bad faith and it considers no non-compensatory Order effectively redresses the offender for the contravention.
  8. [32]
    The section goes on to say that the Tribunal must give written Reasons that no non-compensatory Order effectively redresses the offender. If the Tribunal makes a Compensation Order, it cannot require the payment of an amount of compensation or interest be paid directly to the offender and the Order has effect as an award of compensation only for Part 12B and the offender has no property or interest in the compensation. Part 12B of the CS Act deals with Victim Trust Funds.

Direct Discrimination - Issues to be Determined

  1. [33]
    It is necessary to:
    1. (a)
      identify the appropriate comparator;
    2. (b)
      determine the circumstances that are the same or not materially different;
    3. (c)
      evaluate whether the applicant was treated ‘less favourably’ than the comparator;
    4. (d)
      determine whether any ‘less favourable’ treatment was ‘on the basis of’ or because of the ‘attribute’;
    5. (e)
      determine if the treatment reasonable. Have the respondents proved, on the balance of probabilities, that the treatment was reasonable?
    6. (f)
      determine if the second and third respondents acted in bad faith.

The Comparator

  1. [34]
    The parties were directed to file submissions in relation to the appropriate comparator. The submissions received are relevant to both the pronoun and IMP allegations. The parties did not seek to establish a different comparator for the different matters complained about.
  2. [35]
    The applicant filed submissions on 7 February 2018. The applicant submits that the comparator is a hypothetical person, being a person in custody at SQCC in 2015 who does not have the attribute of gender identity - a cisgender prisoner at SQCC in 2015, but who is otherwise in circumstances that are not materially different to the circumstances that the applicant was in at the relevant time.
  3. [36]
    The applicant submitted that the circumstances the Tribunal must consider in undertaking the comparison of the treatment received by the applicant and the treatment received by the comparator are:
    1. (a)
      the circumstances pertaining to any prisoner in custody at SQCC in 2015 who does not have the attribute of gender identity;
    2. (b)
      that the applicant’s conduct in custody is not material; and
    3. (c)
      that, if the applicant is wrong, the circumstances admitted in the applicant’s Affidavit may be considered relevant circumstances for the purposes of undertaking the comparison. Those circumstances include that the applicant was placed on Incentive and Earned Privilege warnings (‘IEPs’) and was relocated from Residential to Secure Accommodation.
  4. [37]
    The first respondent, by submissions dated 7 February 2018, contends that the hypothetical comparator is a male person:
    1. (a)
      who does not possess the attribute of gender identity;
    2. (b)
      who was a prisoner in the SQCC, being a high security prison, in 2015 and where the second and third respondents were bound to follow COPDs developed and published by Queensland Corrective Services;
    3. (c)
      who was a high security prisoner in the SQCC; and
    4. (d)
      who engaged in the same breaches of discipline, was involved in the same incidents and was engaged in the same aggressive and sexually laden behaviour as the applicant as detailed in the IMPs.
  5. [38]
    The first respondent submits that its comparator is formulated by a consideration of the circumstances attending the treatment of the applicant.
  6. [39]
    The first respondent refers to Purvis v New South Wales (Department of Education and Training)[1] where Gummow, Hayne and Heydon JJ stated in respect of the comparator issues:

[222] It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the “circumstances” to be considered are to be identified in the same way the appellant contended. Indeed, to strip out those circumstances and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act… The appellant’s contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical - circumstances in which no aspect of the disability intrudes. That is not what the Act requires.

[223] In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, section 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant’s argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a highly hypothetical circumstance defined by excluding all features of the disability.

  1. [40]
    The first respondent referred to Woodforth v State of Queensland[2] as an analysis of comparative treatment. The first respondent also relied on Chester v Detective Senior Constable Jane Barnaby & Ors. (No. 2)[3]. The first respondent submitted that the appropriate comparator was one that took into account the circumstances attending the treatment given to the applicant, in particular, the COPD that applied in respect of transgender prisoners.[4]
  2. [41]
    The COPD provides:

Staff will address transgender prisoners:

  • With the same respect given to all other prisoners.
  • By either the name that they are currently registered as having (refer Births, Deaths and Marriages Registration Act 2003) or the name on a Warrant committing the prisoner to a Corrective Services facility or requiring a prisoner to be produced to the General Manager of a Corrective Services facility.

All records must reflect the prisoner’s registered name and gender to ensure the accuracy and consistency of the prisoner’s identification.

  1. [42]
    The second and third respondents submitted, by submissions dated 7 February 2018, that the comparator is:
    1. (a)
      a hypothetical cisgender male prisoner;
    2. (b)
      who does not possess the attribute of ‘gender identity’;
    3. (c)
      incarcerated in a high security male-only correctional facility in 2015;
    4. (d)
      who sought to be addressed by a gender pronoun inconsistent with the gender recorded in the ‘Integrated Offender Management System’;
    5. (e)
      who engaged in:
      1. offensive behaviour;
      2. abusive, indecent, insulting, obscene, offensive and threatening language;
      3. behaviour indicative of poor emotional regulation;
      4. aggressive outbursts towards prison staff;
      5. inappropriate sexual conduct with other prisoners;
      6. conduct in direct contravention of the Rules regulating the conduct of ‘standard’ prisoners in Residential accommodation within the correctional facility (that is, entering the accommodation of other prisoners); and
    6. (f)
      who returned a positive drug test for Buprenorphine.
  2. [43]
    In the applicant’s submissions filed at the conclusion of the hearing on 22 March 2018, the applicant submits that for the purpose of the comparison required to establish ‘less favourable treatment’, the comparator:
    1. (a)
      is a prisoner;
    2. (b)
      is a cisgender person;
    3. (c)
      lives and represents themselves in a manner consistent with their gender identity; and
    4. (d)
      is in circumstances that are not materially different to the circumstances that the applicant was in at the relevant time.
  3. [44]
    The applicant submits that the respondents’ reliance on Purvis v New South Wales[5] does not acknowledge the extent to which that case has been qualified as an authority in this jurisdiction.
  4. [45]
    The applicant refers to Woodforth v State of Queensland.[6] McMurdo J.A. is quoted as stating:

Section 10 of the ADA requires the comparison to be made on the hypothesis that the treatment of the person without the impairment would be “in circumstances that are the same or not materially different” from those that constituted the context for the treatment of the impaired person… Section 8 of the ADA, the effect of which, in combination with section 10 of the ADA, is to proscribe discrimination on the basis of a “characteristic”. In the present case, it proscribed discrimination on the basis of the applicant’s inability to communicate by speech. That proscription would be ineffective if the characteristic of a disability was also to be treated as a “circumstance” in the comparison for the purposes of section 10. It would mean that there could not be direct discrimination on the basis of a characteristic of an impairment, because the comparator also would be a person with that characteristic.

  1. [46]
    The applicant submits that she is protected from discrimination on the basis of her gender identity and being a transgender woman. These protected aspects of her identity are distinct to those other aspects of her circumstances and conduct that are not characteristic of her gender identity. The applicant does not claim that sexualised behaviour is a characteristic of gender identity, or that being a victim of sexual assault is a characteristic of gender identity.
  2. [47]
    That submission is addressed by the first respondent in its submissions in reply filed on 28 March 2018 to the effect that the comparator the applicant put forward is inconsistent with the decision in Purvis. It is submitted that there must be a comparison to the circumstances in which the second respondent was making decisions about the applicant’s welfare as a prisoner, as was the case in Sinden v State of Queensland.[7]
  3. [48]
    The first respondent says that its hypothetical comparator is formulated by a consideration of:
    1. (a)
      the circumstances attending the treatment of the applicant; and
    2. (b)
      the circumstances in which the second respondent was making decisions about the applicant’s welfare as a prisoner.
  4. [49]
    The second and third respondents submit that the comparator test set out by the applicant is unhelpful. The second and third respondents submit that the applicant was a man, claiming to be a woman, addressed as a man, whose disruptive behaviour was sought to be curbed. The comparator, to be of any use in this case, should focus on the behaviour of the hypothetical comparator, not claims to gender.

Discussion

  1. [50]
    The Queensland Court of Appeal in Woodforth held that s 8 of the Act means the prohibition on discrimination is extended to include discrimination on the basis of a characteristic that a person with the attribute generally possesses or which is often imputed to a person with the attribute. In that case a characteristic of hearing impairment was found to be an inability to communicate by conventional speech.
  2. [51]
    The Court found that it was an incorrect approach to compare the treatment of a person with a hearing impairment with the treatment of a person without a hearing impairment, in circumstances where the person without the hearing impairment was unable for another reason to communicate by conventional speech.
  3. [52]
    The Court of Appeal postulates that s 10 of the Act requires the comparison to be made on the hypothesis that the treatment of the person without the impairment would be ‘in circumstances that are the same or not materially different’ from those that constituted the context, for the treatment of the impaired person. The Court of Appeal found to that extent, s 10 of the Act is no different to s 5(1) of the Disability Discrimination Act 1992 (Cth) (‘the DDA’) considered in Purvis.
  4. [53]
    Beyond that likeness the Court of Appeal said that there are differences between the two statutes. The DDA contained no equivalent of s 8 of the Act, the effect of which, in combination with s 10 of the Act, is to proscribe discrimination on the basis of a ‘characteristic’.
  5. [54]
    The Court of Appeal found that it was a wrong application of s 10 to treat a ‘characteristic’ as a common ‘circumstance’ as had been done in Purvis. In Purvis a student was prone to violence towards his teachers. That propensity was part of his disorder. The comparator was a student without the disorder but who acted violently. Violent behaviour was treated as a common circumstance.
  6. [55]
    The Court of Appeal seeks to distinguish Purvis because of:
    1. (a)
      the different wording of the two Acts in question; and
    2. (b)
      the treatment in Purvis being a response to the student’s behaviour, which is also an incident of his disability. That ‘complication’ did not exist in Woodforth, where the relevant treatment was the response of police to a complaint of criminal conduct.[8]
  7. [56]
    Relevant to the last point, McMurdo JA said:

…the occurrences of violent behaviour that constituted the relevant circumstances in Purvis. They were occurrences which formed part of the factual context in which the student was treated. He was treated, by suspension and expulsion, in response to those occurrences. The required comparison was between the treatment of this student and the hypothetical treatment of another student. That hypothesis required the consideration of what would have been the treatment of another in response to occurrences of the same kind.

  1. [57]
    For completeness, I have considered how the comparator has been arrived at in other cases considered by the Queensland Court of Appeal.
  2. [58]
    In Dovedeen Pty Ltd & Anor v GK it was found that in order to identify the relevant characteristics of the comparator described in s 10(1), it is necessary to identify a person without the attribute and to determine if the person was treated less favourably than another person who did not have that status would have been treated ‘in circumstances that are the same or not materially different’. Those circumstances include ‘all of the objective features which surround the actual or intended treatment’ of the person claiming to be discriminated against.[9] The Court of Appeal found that the attribute of having the status of a lawfully employed sex worker, did not include a characteristic of performance of lawful sex work. The Court of Appeal found that reference to circumstances which are the same or not materially different require reference to the activities of the sex worker, accordingly the comparator was a person who was not an employed sex worker who sought accommodation with a view to a series of separate sexual encounters with different people coming to and going from the person’s motel room.[10]
  3. [59]
    In Lyons v State of Queensland it was held with respect to a deaf person that the appropriate comparator is a person without the applicant’s attribute of deafness or the need to communicate through Auslan. Holmes JA said that:

But to posit a comparator with no further qualification than a desire to perform jury service is meaningless; it is to disregard the circumstances in which the relevant treatment of the applicant occurred.[11]

Her Honour said the Tribunal Member below appropriately had regard to the applicant’s need for an interpreter as part of the circumstances of the relevant treatment in formulating the comparator of a person with hearing impairment seeking the assistance of another in the jury room. That finding was not disturbed by the subsequent High Court appeal.

  1. [60]
    Consistent with Woodforth I must identify any relevant characteristic of a protected attribute. It is also relevant to make a finding as to the occurrences which formed part of the factual context.
  2. [61]
    I conclude that if, as in Purvis and Lyons the impugned treatment was given in response to an occurrence which encompasses a characteristic of an attribute, that characteristic may form part of the common circumstances. I consider that the views of McMurdo JA in Woodforth in relation to a characteristic of an attribute, not properly forming part of the common circumstances, is limited to circumstances such as those occurring in Woodforth where the impugned treatment was not given in response to an occurrence which encompasses a characteristic of an attribute.

Pronoun issue

Comparator

  1. [62]
    I find that the protected attribute in question is ‘gender identity’ referred to in s 7(m) of the Act and defined in the Schedule to the Act. On the basis of the definition of gender identity I find that a person who lives and seeks to live as a member of the opposite sex, will refer to themselves by the language associated with the gender with which they identify. That mode of speech is a characteristic of the attribute for the purpose of s 8 of the Act. From that point it is a short step to find that a desire to be addressed by the pronoun relevant to the identified gender is a characteristic generally held by people with the attribute of gender identity. The applicant certainly demanded this occur.[12] I make that finding. On the facts of this case the Applicant identifies as a member of the opposite sex, that is female, by living or seeking to live as a member of the female sex and referring to herself as female and seeking to be referred to as a female and by feminine pronouns.
  2. [63]
    A person without the applicant’s attribute of gender identity and its attendant characteristic is a cisgender male. Cisgender is defined in the online Oxford Dictionary as an adjective denoting a person whose sense of personal identity and gender corresponds with their birth sex.[13] I find that the comparator is a cisgender male.

Circumstances that are the same or not materially different

  1. [64]
    Following the reasoning in Woodforth at [29] the comparison between a person with an attribute and a person without that attribute is made by reference to a certain set of circumstances. In the case of the person with the attribute, that is the set of circumstances in which it is proposed to treat that person. In the case of the person without the attribute, the comparator, they are hypothetical circumstances which are assumed to be the same or not materially different from those in which the person with an attribute has been or will be treated.
  2. [65]
    In Dovedeen at [27] the Court of Appeal drew guidance from the High Court in Purvis which described the circumstances to include ‘all of the objective features which surround the actual or intended treatment’ of the person claiming to be discriminated against.
  3. [66]
    The circumstance in which the treatment of the applicant and the hypothetical comparator occurs is a male prison in 2015. A statutory, policy and operational framework attends the conduct of a prison. The circumstances must therefore include that framework insofar as it is relevant to the treatment. That conclusion accords with the First Respondent’s submission.
  4. [67]
    The Second and Third Respondents seek to include in the common circumstances the hypothetical scenario of a cisgender male prisoner asking to be called by a female pronoun. I am reluctant to include such a scenario in the common circumstances because it is inherently improbable.
  5. [68]
    However, I think it is reasonable to include in the common circumstances a characteristic of the attribute of gender identity, namely the desire to be addressed by reference to the gender with which one identifies.
  6. [69]
    That is a characteristic common to both a cisgender person and a person with the gender identity attribute. The approach is consistent with the reasoning of Holmes CJ in Lyons referred to above.
  7. [70]
    My reasoning to this point is that the comparator is:
    1. (a)
      a cisgender male prisoner;
    2. (b)
      in a male prison in 2015;
    3. (c)
      where the conduct of the prison is set in a statutory, policy and operational framework; and
    4. (d)
      where the comparator desires to be addressed in accordance with his gender identity.

Treatment

  1. [71]
    The treatment complained of is an insistence by the Second and Third Respondents on referring to the applicant by male pronouns and stating that the SQCC was a male prison which did not accommodate female prisoners.
  2. [72]
    The treatment is a refusal to address the applicant in accordance with her gender identity rather than her gender.
  3. [73]
    The applicant has made submissions in relation to various definitions of sex, gender and gender identity. In this decision I intend to treat sex and gender as the same, that is as a reference to biological sex. I am clear in this decision that sex and gender are different to gender identity. I have taken this course because of the evidence that in the SQCC prisoners are all of the male sex and prison records refer to the sex of prisoners by reference to the word ‘gender’. It would be too confusing to attribute a different definition to the word ‘gender’ than that understood and used by the respondents.

Less favourable treatment

  1. [74]
    The first respondent does not consider differential treatment in relation to the use of pronouns relative to gender identity. The first respondent makes extensive submissions in relation to the basis of the treatment of the applicant.
  2. [75]
    The second and third respondents submit that in employing the masculine pronoun to refer to the applicant, the applicant was not treated less favourably than the hypothetical comparator because all prisoners were subject to the same COPD.
  3. [76]
    The COPD in relation to addressing transgender prisoners, implemented as at 18 September 2014, has been set out earlier in the decision.
  4. [77]
    Mr Walters, the third respondent, gave evidence that it is not disrespectful to the applicant to refer to her in the male gender. His evidence is that he is trying to manage a very complex and dynamic group every day. He needs to maintain the good order of the centre and referring to Ms Tafao as ‘Mr’ is consistent with operating a high security, male, overcrowded complex. He said that outside of the correctional centre environment and what he manages, he might accept that it is disrespectful.
  5. [78]
    It was submitted that the only official, registered source of information available to the third respondent concerning the applicant’s name and gender was the IOMS database and the transfer documents. That material falls within the class of documentation contemplated by the COPD, with respect to the source of the registered information as to the applicant’s name and gender.
  6. [79]
    The second and third respondents’ submission is that to refer to a prisoner by reference to their gender, not by reference to their gender identity, was treatment consistent with the requirements of the State of Queensland as set out in the COPD. As the COPD was applied to all prisoners, there was no differential treatment which could be less favourable.
  7. [80]
    The third respondent’s evidence is that he considered he was complying with the COPD in refusing to address the applicant by reference to her gender identity. The COPD is not crystal clear on that point. However, I can see how the requirement that all records must reflect the prisoner’s gender to ensure consistency of identification could be construed as meaning that the gender noted in the prison’s records is to be used consistently whenever the prisoner is identified, and that identification includes addressing or naming a prisoner.
  8. [81]
    On that construction of the COPD there is support for the submission of the second and third respondents that refusing to address the applicant by reference to her gender identity was not different and less favourable treatment of the applicant than the comparator, because all prisoners are identified by their gender alone.
  9. [82]
    However, always identifying a prisoner by reference to gender and never by reference to gender identity will always result in differential treatment of the cisgender male prisoner and the male prisoner who identifies as a female. That is because the cisgender male prisoner will always be addressed as a male and by male pronouns, in accordance with his gender identity and the male prisoner who identifies as a female will never be addressed as a female and by female pronouns. Different treatment results from uniform application of the COPD to all prisoners.
  10. [83]
    I find that this differential treatment is less favourable to the applicant because of the distress and offence caused by the treatment.
  11. [84]
    I find that the applicant has been treated less favourably than the comparator in circumstances that are the same or not materially different.

Was the treatment on the basis of the attribute?

  1. [85]
    All parties agree that determining if the treatment was ‘on the basis of the attribute’ as set out in s 10 of the Act, is tested by asking what the real reason for the treatment is.[14]
  2. [86]
    The applicant submits that there could be no other reason for the deliberate denial of the applicant’s gender identity than her known gender identity. I reject that submission because of the evidence of Mr Walters and Mr Shaddock, which I accept, that application of the COPD was the reason for refusal to use female pronouns in relation to the applicant.
  3. [87]
    The Respondents submit that the statements by Officer Ash, which are impugned by the applicant, were made because as a statement of fact. That is, the prison is in fact a male prison. Based on the evidence of Mr Walters, I accept that submission.
  4. [88]
    I find that the treatment was not on the basis of the attribute.

Was the treatment reasonable?

  1. [89]
    Mr Walters gave evidence to the effect that it was necessary to put his treatment of the applicant into context. In particular, he said that SQCC is a 300-bed prison which at the time was overcrowded by 80. He said that the prison was at 127% of built capacity. Of the 380 prisoners 80 are in for murder. He said he was trying to manage a very complex and dynamic group every day and in terms of making sure that he maintained the good order of the centre, referring to the applicant as ‘Mr’ was consistent with operating a high secure male overcrowded centre and protecting the safety of the applicant. I accept that evidence.
  2. [90]
    I have not been provided with submissions in relation to the balance of the matters referred to in section 319G(3) of the CS Act. Given the conduct complained of, the matters described at paragraphs (b), (c), (e), (f), (i) and (j) are not relevant.
  3. [91]
    I am satisfied on the balance of probabilities that the security and good order of SQCC was a paramount consideration in the conduct of the second and third respondents. In accordance with section 319G(3)(j) of the CS Act, I consider it relevant that the applicant’s own safety in an overcrowded male prison is a good reason for the second and third respondents not to focus on the applicant’s gender identity as opposed to her gender in their dealings with her. By the same token, I accept the applicant’s evidence that using male pronouns offended the applicant’s dignity. On balance, however, I accept the evidence of Mr Walters that the other issues were the most pressing concerns and that they were reasonable in the circumstances.

Conclusion

  1. [92]
    I find that the applicant was not the subject of direct discrimination by the second and third respondents in relation to the comments of Officer Ash and the refusal to address the applicant by way of female pronouns.
  2. [93]
    I find that in any event the conduct of the second and third respondents was reasonable.

Bad faith

  1. [94]
    Because of my findings in relation to direct discrimination, it is not strictly necessary to make any finding as to whether there has been bad faith on the part of the second and third respondents.
  2. [95]
    However, for completeness, I will consider section 319I(2) of the CS Act.
  3. [96]
    The applicant contends that the second and third respondents acted in bad faith in relation to the impugned conduct,
  4. [97]
    The applicant’s submissions in relation to the meaning of ‘bad faith’ are helpful in articulating the relevant concepts:
    1. (a)
      ‘bad faith is not the bona fide and reasonable use of the power of management; it may be abuse of power to victimise a prisoner under the guise of ordinary management’;[15]
    2. (b)
      ‘bad faith may involve personal fault on the part of the decision maker’;[16]
    3. (c)
      ‘the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme… mere error or irrationality does not of itself demonstrate lack of good faith… bad faith is not to be found simply because of poor decision making… errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness… it is not necessary to demonstrate that the decision maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power.’[17]
  5. [98]
    I find that Mr Walters was a credible witness. His evidence was given in a considered and straight forward way. He made sensible concessions if necessary. I accept Mr Walter’s evidence as to why he dealt with the applicant in the manner he did.
  6. [99]
    I do not consider that Mr Walters was actuated by bad faith, as characterised by the criteria set out earlier, merely by a desire to protect the applicant and facilitate the effective running of the prison.
  7. [100]
    I do not find that there has been bad faith on the part of the respondents.

Imposition of the Intensive Management Plans

Factual Background

  1. [101]
    The applicant’s Affidavit, Exhibit 1 in the proceedings, attaches the following documents relevant to her conduct at SQCC:
    1. (a)
      IEP Warning Notice dated 23 April 2015 noting the applicant was observed by staff to be in a unit in which she was not domiciled on 23 April 2015. The warning required the applicant to remain within approved areas and to remain compliant and cooperative;
    2. (b)
      letter form the third respondent to the applicant dated 27 April 2015 recording that investigations revealed the applicant has been warned on several occasions in relation to being in an accommodation unit in which she does not reside;
    3. (c)
      letter third respondent to the applicant dated 27 April 2015 referring, amongst other things, to warnings in relation to being in another accommodation unit other than the unit in which she resides;
    4. (d)
      IEP Warning Notice dated 8 May 2015 in relation to presence in a unit in which the applicant was not domiciled. The Notice required compliance with the policies and procedures of the centre and to follow directions given by any custodial officer. It was noted that should the applicant receive a third warning within a three month period, she will be referred for a Special Review that may result in privileges level being reduced;
    5. (e)
      functional IMP dated 3 July 2015. The IMP sets out background including:
      1. 28 April 2015 - breach for using abusive, indecent, insulting, obscene, offensive or threatening language;
      2. 12 May 2015 - involved in an incident displaying behaviour indicative of poor emotional regulation and aggressive outbursts towards staff, after being advised that an accommodation change was necessary following viewing of CCTV footage which captured the prisoner cuddling another prisoner on the mattress on the floor of a unit in which the prisoner was not accommodated and then entering the cell of another prisoner;
      3. warning on several occasions that entering accommodation units other than the unit in which the prisoner was accommodated was not permitted;
      4. accommodation in the Medical Overflow Unit until 13 May 2015;
      5. running from the Medical Overflow Unit yelling and screaming at Officer;
      6. prisoner placed in the Detention Unit;
      7. further breaches of discipline on 27 May 2015 and 12 June 2015 for using abusive, indecent, insulting, obscene, offensive or threatening language;
      8. 28 May 2015 - positive test sample for Buprenorphine.
      9. The IMP says that improvement of the prisoner’s custodial adjustment is the primary purpose of the IMP.
      10. The prisoner is required to ‘engage with staff in an acceptable and cooperative manner, refrain from aggressive or abusive behaviour and alert staff of any deterioration in mood or mental state. All staff to remain vigilant in monitoring any changes in prisoner Tafao’s behaviour. This will include observation of the quality of interactions between prisoner Tafao and other offenders in relation to hostility, anger or anxiety or situational misinterpretations’.
      11. The IMP requires with respect to interactions with prisoners that ‘Prisoner Tafao is to be encouraged to develop a neutral and appropriately friendly attitude towards other prisoners and maintain appropriate interactions with prisoners generally. Any concerns should be raised immediately with the supervisor and the relevant accommodation manager.’
      12. The applicant refused to sign the document.
    6. (f)
      functional IMP dated 26 August 2015 which records:
      1. Prisoner Tafao has been accommodated in secure and residential units at SQCC. The prisoner has incurred nine breaches of discipline and been involved in 17 incidents. These breaches and incidents have included aggressive outbursts towards staff, positive drug tests, offensive behaviour, damage to property and acts contrary to good order and security. Incidents have escalated through the period of the prisoner’s SQCC placement. A general intolerance of others and aggressive outbursts towards staff have been the norm’.
      2. Aggressive outbursts have been associated with custodial injunctions against the prisoner’s inappropriate behaviour and specifically against provocative, sexually laden behaviour. Aggressive behaviour followed an instance where the prisoner had been advised that an accommodation change was necessary after CCTV footage was viewed which captured him cuddling another prisoner on the mattress on the floor of a unit in which he was not accommodated and then entering the cell of another prisoner.
      3. Identified target behaviours for intensive management: ‘In the Australian cultural situation, prisoner Tafao’s transgender behaviour is prone to misinterpretation by other prisoners and this has resulted in instances of victimisation and serious issues of vulnerability to sexual assault. Prisoner Tafao has demonstrated limited capacity for self-management of emotional states and effective persona coping, and his personal adjustment’.
      4. ‘Problems of access to and availability of supportive relationships with culturally appropriate persons and with familial peers have contributed to the prisoner’s affective and behavioural disturbance… Aggressive outbursts, challenging of officers’ authority, failure to comply with a direction and self-harm behaviour constitute a risk to others as well as to the safety of the prisoner, and a risk to the good order of SQCC’.
      5. ‘Evidence-based information indicates how prisoner Tafao’s transgendered behaviour and cognition has primary components of androallure (being particularly sexually attracted to men) and anticipatory states of sexual arousal. Sexual flirtation has been a prominent feature of prisoner Tafao’s behaviour at SQCC. He has been observed skipping down the walkways, wearing flowers in his hair and adopting a feminised behavioural disposition. In the fraught situation of male prisoners in custody, other prisoners have responded to prisoner Tafao’s transgendered behaviour with inappropriately sexually laden comment that has subsequently aroused negative feelings and behavioural manifestations of vulnerability on the part of prisoner Tafao, and incrementally resulted in victimisation events. Advice and support will be helpful in assisting prisoner Tafao in mitigating this explicitly transgendered behaviour. An expected outcome is improved custodial coping within the safety and security regime.’
      6. In relation to interactions with staff ‘Prisoner Tafao is required to engage with staff in a behaviourally acceptable, compliant and cooperative manner. He is to refrain from aggressive or verbally abusive behaviour’.
      7. Interactions with prisoners: ‘Prisoner Tafao is to be encouraged to develop a neutral, asexual and appropriately friendly attitude towards other prisoners and maintain appropriate interactions with prisoners generally… Prisoner Tafao will be accorded supportive contact with other nominated and approved Samoan prisoners at SQCC’.
      8. Specialised interventions: ‘Additionally, prisoner Tafao will be supported and encouraged towards mitigation of feminised, sexually laden behaviour in reference to victimisation and safety concerns’.
      9. External agency services: ‘Prisoner Tafao will be accorded supportive contact with a community transgender support group representative, and also with an appropriate representative of the Samoan community’.

The applicant declined to sign the IMP.

  1. (g)
    functional IMP dated 25 September 2015. A version of the IMP, signed by the applicant, appears as attachment MPW 93 to the affidavit of Mark Walters. The IMP repeats the matters set out in the August IMP.

Applicant’s Submission - Direct Discrimination re imposition of IMPs requiring mitigation of transgendered behaviour.

  1. [102]
    The applicant submits that:
    1. (a)
      the August IMP was imposed following an incident on 5 July 2015 which amounted to her being sexually assaulted by a group of prisoners.[18]
    2. (b)
      there is no evidence that the applicant was ‘sexually attracted to the perpetrators’. Nor that she was sexually flirting, skipping, wearing flowers in her hair. It is said that to reject the language of the August IMP, rather than ‘adopting’ a feminised behavioural disposition, the applicant demonstrated a feminised behavioural disposition, because that is how she expresses her gender identity.
    3. (c)
      none of the incidents the third respondent says resulted in the August IMP being imposed evoked discourses of gender or sexuality. This was accepted by the third respondent at the hearing.
    4. (d)
      the COPD requires that a person to be made the subject to a functional IMP, be included in its development. The applicant was not consulted about the IMP before it was implemented.[19]
    5. (e)
      when the applicant was provided with a copy of the August IMP, she was very upset, construing the IMP as ‘saying I can’t be who I am’.[20]
    6. (f)
      the September functional IMP was developed and imposed without consultation.
    7. (g)
      the respondents cannot rely on allegations contained within Exhibits to Mr Walters’ Affidavit, being discipline and management records because much of the evidence concerning allegations about the applicant’s alleged conduct, have no factual foundation and at best are secondary evidence of real evidence that is not disclosed or in evidence and available to be tested
    8. (h)
      the IMPs are not proof of their contents;
    9. (i)
      in relation to the respondents’ allegations that the applicant was selling sexual favours for money whilst incarcerated there is no evidence to support the allegation. In particular, there is no evidence she was disciplined in relation to selling sex, there is no evidence of money changing hands, there is no evidence of an investigation by the police. The applicant denies the allegations. The applicant’s evidence on the point remains uncontradicted.
  2. [103]
    The applicant says that the circumstances the applicant was in at the relevant time may include the circumstances admitted in the applicant’s Affidavit that she was placed on IEPS and IMPs and was relocated from residential to secure accommodation.
  3. [104]
    It is asserted that by reference to the comparator as framed by the applicant, namely a cisgender prisoner, the applicant was treated less favourably through imposition of functional IMPs that framed her gender identity as discretionary and sought to have her act in a manner inconsistent with her gender identity; and
    1. (a)
      were incapable of serving the purpose for which IMPs may be imposed on a prisoner;
    2. (b)
      were imposed without input from the applicant and contrary to the COPDs;
    3. (c)
      were extremely insulting and offensive to the applicant; and
    4. (d)
      with which the applicant could not comply.
  4. [105]
    It is submitted that negating the applicant’s gender identity was less favourable treatment than the comparator would have received in similar circumstances. It is submitted that a cisgender prisoner would not have been asked to mitigate their gender identity as part of a plan ostensibly tailored to support the prisoner.
  5. [106]
    The applicant points to Mr Walters’ evidence in cross-examination to the effect that a cisgender male prisoner would not be asked to mitigate their gendered identity as part of a plan ostensibly designed to support that prisoner.
  6. [107]
    It is further submitted that the focus of the remedial response to a sexual assault was on the gendered conduct of the applicant - the person who was sexually assaulted. It is submitted that this is less favourable treatment than the comparator would have received in similar circumstances. Having been sexually assaulted, a cisgender prisoner would not have been instructed to mitigate his gender identity and to act inconsistently with his gender identity as a reasonable solution to ensure his protection.
  7. [108]
    Importantly, the applicant in her submissions does not claim that sexualised behaviour is a characteristic of gender identity or that being a victim of sexual assault is a characteristic of gender identity.
  8. [109]
    The applicant rebuts the first respondent’s contention that a cisgender prisoner, engaged in the same breaches of discipline and involved in the same incidents and behaviour as was alleged in the IMP, would be treated in the same way. The applicant says:
    1. (a)
      the applicant’s alleged behaviour is not proven; and
    2. (b)
      while the alleged breaches are not proven, they are not relevant to the less favourable treatment of counselling the applicant to mitigate her ‘transgender behaviour’.
  9. [110]
    The applicant points to the third respondent’s concession in cross-examination that the allegations have nothing to do with the applicant’s gender identity or its characteristics and that gender identity does not feature as a discourse in any of the incidents.[21]
  10. [111]
    It is submitted that in receiving literally the same treatment, the cisgender male comparator at SQCC would be referred to as a man, would be disciplined for misconduct and would not be instructed to ‘mitigate his excessive cisgender behaviour’.
  11. [112]
    To the extent the treatment is the same treatment, it is less favourable to the applicant, a transgender woman, than for the cisgender comparator. It is submitted that the Act proscribes discrimination on the basis of the applicant’s gender identity including her identity as a transgender woman.
  12. [113]
    The applicant submits that the active, deliberate denial of the applicant’s gender identity was less favourable treatment on the basis of the applicant’s known gender identity and that there is no other discernible or reasonable reason for the contents of the IMP.
  13. [114]
    The applicant submits that the focus of the remedial response to a sexual assault was on the gendered conduct of the applicant, the victim, rather than on the conduct of the perpetrators, was less favourable treatment on the basis of the applicant’s known gender identity.

Second and Third Respondents’ submissions - IMPs

  1. [115]
    The second and third respondents submit that the decision to impose the IMPs was explained by Mr Walters in his Affidavit in which he recounted the applicant’s conduct between 13 April 2015 and 14 May 2015 and between July and September 2015. The evidence of Mr Walters is that the second and third respondent sought to manage the applicant’s behaviour by five behavioural management and intensive management plans.
  2. [116]
    In relation to the applicant’s point that the applicant’s conduct has not been proved, the second and third respondents submit that:
    1. (a)
      in the course of cross-examination the applicant conceded the reasons for the warnings provided on 13 April 2015;[22] [23] [24]
    2. (b)
      in relation to allegations that the applicant engaged in the provision of sexual favours for money, the second and third respondents submit that the applicant’s denial in cross-examination is unsustainable because of the preponderance of evidence which supports the allegation. Reference is made to Mr Walters’ letter of 17 June 2015, Exhibit 65 to his Affidavit. In that letter, Mr Walters puts to the applicant records of telephone conversations which strongly suggest she was selling sexual favours for money;
    3. (c)
      the applicant agreed in cross-examination that she had made the statement she was engaged in ‘escorting’;[25]
    4. (d)
      the applicant agreed in cross-examination, that despite the alleged sexual assault on 5 July 2015 she did not wish to be removed from the residential unit in which she was then living;
    5. (e)
      the applicant conceded in cross-examination striking a prisoner in the back of the head;[26]
    6. (f)
      the applicant signed the September 2015 IMP and said in evidence that she understood the purpose of the IMP and agreed to actively participate in the identified supervision;[27]
    7. (g)
      the applicant conceded in her own correspondence to Mr Walters on 6 September 2015 her transgressions of the prison rules and the disruption which her conduct in the facility was causing or had caused;[28]and
    8. (h)
      in cross-examination, the applicant suggested that she had just given up and was telling Mr Walters what she thought he needed to hear.[29] However, later in cross-examination, she said: ‘I’m not disputing my behaviour, I’m disputing the way I was treated’.[30]
  3. [117]
    I accept the second and third respondents’ submissions that Mr Walters’ evidence and the applicant’s evidence-in-chief and in cross-examination supports the proposition that there was good reason for the imposition of the IMPs and that those plans were intended to achieve certain behavioural objectives, to protect the applicant’s personal safety, to support her adjustment to prison life and ensure that good order and functioning of the prison.
  4. [118]
    It is submitted that in setting those objectives, the applicant was treated no differently to a cisgender male prisoner who had engaged in similarly disruptive and non-compliant behaviour.
  5. [119]
    I note that Mr Walters did not know the extent to which the senior Psychologist, Mr Lewis, who prepared the IMP, had sat down and spoken to the applicant in developing the IMP. However, he said that a functional IMP is always developed by the senior Psychologist and it’s about assisting with whatever the issues are.[31]
  6. [120]
    Mr Walters gave evidence that the purpose of the IMP was not to require the applicant to change her gender identity but to assist her in the context of a male correctional centre.
  7. [121]
    The second and third respondents refer to a question asked by me of counsel for the applicant as to whether skipping and wearing flowers in the hair is said to be the conduct of the female sex.
  8. [122]
    Counsel for the applicant gave a somewhat confused response, denying that there was evidence of the applicant skipping but said she had been told not to skip and wear flowers in her hair.
  9. [123]
    Counsel for the applicant said the point of the complaint was reference to language in the IMP that the applicant mitigate her transgender behaviours.
  10. [124]
    The second and third respondents’ submissions can be encapsulated as follows:
    1. (a)
      the applicant signed an agreement to abide by the September 2016 IMP;
    2. (b)
      the proposition that gender identity is tied up with disruptive behaviour which the IMPs were intended to curb is unsustainable;
    3. (c)
      the gender identity of a transgender person who identifies as female could not be considered to have been curbed by seeking to control sexually provocative behaviour as such behaviour is not a necessary element of presenting as or being a woman;
    4. (d)
      the evidence given by Mr Walters is that the purpose of the IMPs was to protect the applicant’s safety and the good order and efficient functioning of the prison and that a male prisoner engaging in the same sort of conduct would have been subject to the same sort of intensive management.
  11. [125]
    In their submissions in reply to the applicant’s submissions, the second and third respondents added to their submissions that a proposition by the applicant that any attempt to curb behaviour chosen to express gender identity constitutes discrimination on the basis of gender identity, is unsustainable.
  12. [126]
    Further, in relation to the applicant’s contentions with respect to the comparator, the second and third respondents say that the comparator of a man identifying as a man invoked without regard to any relevant conduct is not a useful comparator for the purposes of the case.
  13. [127]
    As to the applicant’s conduct being unsubstantiated, the second and third respondents say that the submissions are irrelevant. The present proceedings should not be a trial as to the applicant’s conduct whilst in prison. The applicant conceded her behaviour. The matter to be determined in this case is whether the applicant was subjected to direct or indirect discrimination because of the attribute of gender identity.
  14. [128]
    It is submitted that it was not put to Mr Walters that he did not believe that the applicant had done the things which justified the imposition of the IMPs.
  15. [129]
    The second and third respondents deny that the conduct complained of constituted active deliberate denial of the applicant’s gender identity. It is submitted that the conduct complained of was because of the applicant’s admitted disruptive behaviour. The treatment was not less favourable than that which would have been meted out to a cisgender male prisoner who engaged in disruptive behaviour. It was the same treatment to which a similarly disruptive prisoner would have been subjected.
  16. [130]
    As to the reasonableness of the treatment, the second and third respondents say that there was no less favourable treatment. Further, the applicant’s conduct of engaging in highly sexualised behaviour and selling sexual favours was self-evidently inconsistent with the security and good order of the prison.
  17. [131]
    The point is made that the applicant’s submissions that the applicant’s gender identity is not discretionary is not a matter the subject of any evidence.
  18. [132]
    Insofar as it is asserted that the applicant did not cease to identify as a woman, the second and third respondents submit that the IMPs did have the effect of curbing the applicant’s conduct, which was their intention.[32]
  19. [133]
    In relation to the applicant’s contention that the impugned conduct did not protect the applicant but harmed her, the second and third respondents say that the evidence supports the proposition that the risk to which the applicant was exposed in the prison was the product of her own behaviour, not being subjected to IMPs seeking to control her disruptive behaviour.
  20. [134]
    In relation to the submission by the applicant that her evidence ‘by that time I had stopped skipping, I had stopped wearing flowers in my hair’ was sarcastic, the second and third respondents submit that the Tribunal should reject the submission that the evidence was sarcastic. Importantly, they say that the applicant was not re-examined to correct any alleged misapprehension that may have arisen out of the evidence.

First Respondent’s submissions - IMPs

  1. [135]
    The first respondent submitted that the reason the third respondent implemented the IMPs was not because of the applicant’s characteristic of living as a woman, it was as a result of the applicant’s overly feminised and sexually laden behaviour.
  2. [136]
    The first respondent said that the hypothetical comparator is a male person who does not possess the attribute of gender identity, was a prisoner in a high security prison in 2015 where the second and third respondents were bound to follow the COPDs, was a high security prisoner and engaged in the same breaches of discipline and was involved in the same incidents and engaged in the same behaviour as the applicant as detailed in the first and second functional IMPs.
  3. [137]
    The first respondent’s hypothetical comparator is formulated by a consideration of the circumstances attending the treatment of the applicant and the circumstances in which the second respondent was making decisions about the applicant’s welfare as a prisoner.
  4. [138]
    The first respondent makes similar submissions to the second and third respondents in relation to evidence on which the Tribunal could find that the applicant engaged in the behaviours alleged and that the real reason for the imposition of the IMPs was because of the applicant’s breaches of discipline and behaviour.
  5. [139]
    It was submitted that the Tribunal should draw the inference that the applicant was engaging in sexually laden behaviour referred to in the IMPs because the applicant was selling sexual services in the prison as alleged by the second respondent.
  6. [140]
    The first respondent says that although the applicant may not have liked what was written in the IMPs in terms of mitigating her ‘transgender… behaviour’ and reducing her ‘overtly feminised and sexually laden behaviour’, those statements were made for the applicant’s own safety, not because of the applicant’s gender identity or to try to make the applicant something she was not.
  7. [141]
    The first respondent refers to the third respondent’s clear evidence that he approved the first IMP to:
    1. (a)
      not change the applicant’s gender identity; but
    2. (b)
      assist the applicant, who is in a male correctional facility, in terms of the applicant’s safety.[33]
  8. [142]
    Finally, it is submitted that for this reason the conduct could not amount to direct discrimination within the meaning of the Act.

Findings with respect to the submissions

  1. [143]
    Mr Walters gave evidence that he took responsibility for issue of the IMPs. I accept that he believes the applicant engaged in the conduct sought to be addressed by the IMPs. I find that the applicant acknowledged sufficient of her behaviours to form a justifiable basis for the second and third respondents to attempt to assist the applicant by the imposition of IMPs. I accept the submissions of the second and third respondents in this regard.
  2. [144]
    I accept the evidence of Mr Walters that a functional IMP, such as those imposed on the applicant, is different to a behavioural IMP which is disciplinary in nature. I accept Mr Walter’s evidence that a functional IMP will be implemented in circumstances where a prisoner is not coping with living in the prison and requires additional support to be put in place to assist them to better cope. This functional IMP will result in a supportive framework being designed by the SQCC Senior Psychologist and the prisoner to tailor a support network that will assist that individual.[34]
  3. [145]
    The IMPs in question provide for specialised support for the applicant, including treatment for the management of anger, frustration, anxiety and depression; support and encouragement towards ‘mitigation of feminised sexually-laden behaviour’ in reference to victimisation and safety concerns. The IMPs refer to cultural visitation and contact by external elders and approved prisoner mentors and relations. The IMPs refer to supportive contact with a community transgender support group representative and an appropriate representative of the Samoan community.
  4. [146]
    The IMPs do not say that the applicant should mitigate her gender identity. I understand the applicant’s submissions to be that feminised behaviour is not discretionary and cannot be changed to act in a way inconsistent with one’s gender identity. The applicant has construed the reference in the IMP’s to transgendered behaviour as a reference to behaviour integral to her gender identity. That is not a fair reading of the IMPs. The author of the IMPs has sought to define the transgendered behaviour which is contributing to the threat to the applicant’s safety and security. The IMP refers to the applicant as being characterised by androallure (attraction to men) and anticipatory states of sexual arousal. It is said that sexual flirtation is a prominent feature of the applicant’s behaviour at SQCC, exhibited by skipping, wearing flowers in her hair and adopting a feminised behavioural disposition. There is no example given for the latter phrase, however, it is coloured by being included as an act of sexual flirtation. The applicant’s sexual flirtation is said to have drawn inappropriate sexually-laden responses from other prisoners, which have aroused negative feelings and behavioural manifestations of vulnerability on the part of the applicant and incrementally resulted in victimisation events.
  5. [147]
    The IMPs further refer to ‘provocative, sexually-laden behaviour’. Also, ‘overtly feminised and sexually-laden behaviour’. The words are linked. It is the sexually-laden behaviour which is being addressed. The applicant agrees that sexualised behaviour is not a characteristic of gender identity.
  6. [148]
    I accept that a person cannot change who they are, but I do not accept that a person cannot moderate their behaviours to meet the circumstances in which they find themselves, unless they are suffering from a medical condition. The applicant presented in the hearing in a sensible fashion, appropriate to the circumstances. I do not consider that she was being asked in the IMPs to do anything other than moderate sexual behaviours which posed a threat to her own safety in the prison environment. Furthermore, she was being offered support to help her do so.
  7. [149]
    I accept the submissions of the second and third respondents that the IMPs resulted in changed behaviour and that this was acknowledged by the applicant. I do not accept the submission of the applicant that her evidence in this regard was sarcastic.
  8. [150]
    In relation to the complaint that the August IMP was imposed after an alleged sexual assault upon the applicant on 5 July 2015 and that it was unreasonable to focus on the gendered conduct of the applicant, I do not consider the proposals in the IMP were unreasonable or unfavourable treatment. I find that they were a reasonable response to a dangerous situation for the applicant. The IMP was not directed to ‘gendered conduct’. It was directed to sexually provocative conduct which not surprisingly drew a response.
  9. [151]
    The applicant’s submissions ignore the target of the IMPs as sexually-laden behaviour and substitute instead ‘gendered behaviour’ or ‘gender identity’. Those submissions are misdirected. Gendered behaviour and gender identity were not being targeted.

Comparator and circumstances that are the same or not materially different

  1. [152]
    I find that the comparator is a cisgender male.
  2. [153]
    I find that the circumstances that are the same or not materially different are:
    1. (a)
      the cisgender male is a prisoner in a male prison in 2015;
    2. (b)
      the conduct of the prison is set in a statutory, policy and operational framework; and
    3. (c)
      the comparator engages in sexualised behaviour.
  3. [154]
    The applicant seeks to include in the surrounding circumstances just that the comparator was placed on IEPs and IMPs and was relocated from residential to secure accommodation. While not expressly referring to particular conduct the natural conclusion arising from the submission is that some behaviour occurred to justify IEMs and IMPs. I do not think the applicant’s purported limit on the description of the common circumstances changes the analysis if greater particularity is given in the description of the circumstances.
  4. [155]
    The applicant concedes that it is not her conduct, being the subject of the functional IMPs, which constitutes a characteristic of a person with the attribute of gender identity. Rather, it is being told to ‘mitigate her explicitly transgender behaviour’, the alleged characteristic of the attribute being a need not to be told to do so. I do not agree that such a need is a characteristic of the attribute. The applicant does not claim that sexualised behaviour is a characteristic of gender identity or that being a victim of sexual assault is a characteristic of gender identity.

Treatment

  1. [156]
    The treatment complained of is the imposition of the IMPs requiring the applicant to mitigate transgendered behaviour which has been submitted to be behaviour inextricably linked with gender identity. I find that this was not the treatment given to the applicant.
  2. [157]
    The treatment in fact given to the applicant was the imposition of IMPs with the objective of mitigating sexually-laden behaviour, through the use of a community transgender support group and a representative of the Samoan community.
  3. [158]
    I do not consider the treatment in fact given to be unfavourable to the applicant or impossible to achieve.

Less Favourable Treatment

  1. [159]
    I accept the evidence of Mr Walters that a cisgender male prisoner who exhibited sexual behaviour, would be disciplined and subject to an IMP.
  2. [160]
    On this basis, I find that there has been no less favourable treatment by the imposition of the IMPs.
  3. [161]
    I reject the submission that a cisgender prisoner would be instructed to ‘mitigate his excessive cisgender behaviour’. The submission is misconceived. The applicant has not been asked to mitigate excessive gender identity behaviour. She has been asked to mitigate sexually-laden behaviour.
  4. [162]
    I reject the submission that a cisgender prisoner would not have been instructed to mitigate his gender identity and to act inconsistently with his gender identity as a reasonable solution to ensure his protection. The submission is misconceived. The applicant has not been asked to mitigate her gender identity and to act inconsistently with her gender identity. On the basis of Mr Walter’s evidence, if the comparator had engaged in sexual behaviour which threatened his safety, I find that he would have been asked to mitigate that behaviour as a means of ensuring his protection.
  5. [163]
    I find that the cisgender comparator in circumstances that are the same or not materially different would be treated in the same way as the applicant.

Was the Treatment on the basis of the Attribute?

  1. [164]
    I accept the submissions of the respondents that the reason for imposition of the IMPs was to curb bad behaviour which threatened the safety of the applicant and the good order and functioning of the prison. I find that the treatment given to the applicant was not on the basis of the attribute of gender identity.

Was the treatment reasonable?

  1. [165]
    On the basis of the evidence of Mr Walters that the functional IMPs were imposed to assist the applicant and to ensure the proper functioning of the prison through curbing bad behaviour and to assist in protection of the applicant, I find that it has been established on the balance of probability that the respondents’ conduct was reasonable for the purposes of s 319G(2) of the CS Act.

Conclusion

  1. [166]
    I find that there has been no direct discrimination of the applicant by the respondents as a result of the objective in the IMPs that the applicant mitigate her sexually-laden behaviour.

Bad Faith

  1. [167]
    I do not consider that there has been bad faith on the part of the respondents, following the reasoning set out earlier in this decision.

Indirect Discrimination – Issues to be determined

  1. [168]
    It is necessary to determine:
    1. (a)
      whether any term or requirement has been imposed on the applicant by the second and third respondents. If so, the nature of that term or requirement;
    2. (b)
      whether the applicant, having the attribute of gender identity, could not comply;
    3. (c)
      whether a higher proportion of people without the attribute comply or are able to comply; and
    4. (d)
      whether imposition of the term or requirement was not reasonable.

Identification of the term

  1. [169]
    The applicant submits that she was required to ‘be a man’ through the use of male pronouns when addressing her, in the circumstances of Officer Ash’s comment on 15 May 2015 and Mr Walters response on 16 June 2015; by the IMPs advising the applicant to mitigate her transgendered behaviour and reduce her overtly feminised and sexually-laden behaviour; and by the COPD dealing with Accommodation and Case Management and its application, including letters from the third respondent to the applicant dated 16 June 2015 and 20 July 2015.
  2. [170]
    The second and third respondents submit that none of the particulars given by the applicant as to the term or requirement supports the proposition that the applicant was required by the respondents to ‘be a man’.
  3. [171]
    The second and third respondents say that the use of female pronouns were a means of address mandated by the COPD not a requirement that the applicant ‘be a man’. They say that the impugned objective of the IMPs was not a term or requirement that the applicant ‘be a man’, but rather a requirement that the applicant curb her behaviour.
  4. [172]
    A further submission is made that the applicant’s arguments about the imposition of a term are based upon the fallacy that the applicant was a woman and was asked to be a man. The second and third respondents say that the applicant was not a woman and she was not asked to be a man.
  5. [173]
    The first respondent submits that the applicant’s claim is misconceived, because of the applicant’s own evidence she is a man. It is said that the applicant can only have the attribute of gender identity if, as is the case on the evidence, the applicant is a man who identifies as a member of the opposite sex by living or seeking to live as a member of the opposite sex.
  6. [174]
    The first respondent also submits that the IMPs did not impose the term contended for, because the IMPs meant what they said in terms of requiring behaviour to be mitigated. Further the third respondents’ use of male personal pronouns did not and could not impose a term that the applicant be a man. The use of male personal pronouns was because of the COPD and the fact the applicant was a man. The claim is misconceived. Finally, agreement with what Officer Ash said was merely an agreement with a statement of fact.
  7. [175]
    What does to ‘be a man’ mean where the applicant has the male gender but identifies and seeks to live as a female? The respondents’ submissions are understandable that it is a nonsense to construe a requirement in the given scenarios that the applicant be a man, when the applicant is a man. The submissions of the applicant make the claim that because the applicant identifies as female and seeks to live as a female, she is therefore a female. I reject that submission. I do not think an injunction against discrimination on the basis of the attribute of gender identity is a requirement to adopt the applicant’s perception of reality for all purposes. The applicant has the male gender because of her biological sex. On one view, the applicant’s complaint is that she is being required to deny her gender identity in the three given situations. That is not how the term or requirement has been framed, but perhaps that expression is just the flip side of the requirement contended for that the applicant be the gender consistent with her biological sex determined at birth.
  8. [176]
    In relation to the IMPs, the evidence of Mr Walters was that he did not seek to change the applicant’s gender identity, he required her to curb her sexualised behaviour. I find that this requirement is not a requirement to be a man. I find that there has been no imposition of a term or requirement as contended for by the applicant in relation to imposition of the IMPs.
  9. [177]
    In relation to Officer Ash’s comments and the third respondent’s communications with the applicant, I find that the applicant is not being asked to ‘be’ anything other than herself. The applicant is being told how Officer Ash and the second and third respondents view her circumstances. That is, she is of the male gender and she is incarcerated in a male prison. I find that these statements of fact are not the imposition of a term or requirement as contended for by the applicant.
  10. [178]
    In relation to the use of male personal pronouns, Mr Walters required the applicant to submit to a form of address consistent with her gender, rather than her gender identity. Arguably, 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. The analysis confronts the same problem. How can it be a requirement to ‘be a man’ when one is a man? On this reasoning I find that no term or requirement has been imposed on the applicant.
  11. [179]
    If the applicant had identified the term or requirement as a requirement to deny her gender identity when being addressed, the analysis may be taken further. The first respondent in its submissions in reply suggested that the applicant had changed her original contention as to the term imposed to now assert that the respondents required her to identify as a man. They complain that is not the case they came to meet, but in any event conclude that even if such a term were imposed and it was found to be indirectly discriminatory, it was a reasonable term.
  12. [180]
    In the end, I cannot help but think the alleged requirement to ‘be a man’ is just another way of saying that the applicant should ignore her gender identity. That seems to be consistent with the way the matter is discussed by the applicant in her submissions. Given that the respondents have had the opportunity to file submissions in reply and at least the first respondent has addressed the question, I will pursue the analysis to its conclusion by reference to the imposition of such a term in relation to the pronoun issue.
  13. [181]
    I do not think any different conclusion would be reached in relation to the other two scenarios if the re-framed term was considered, because in each case I have found that no term or requirement was imposed, however described.

Could the applicant comply with the requirement / could a greater proportion of people with the attribute comply?

  1. [182]
    If the requirement had been that the applicant ignore her gender identity when being addressed in the prison, it is possible to conclude that the applicant could not comply with the requirement because of the very nature of the attribute. Further it is possible to draw the conclusion that a higher proportion of the prison population could comply with the requirement, given the relatively few prisoners with the attribute of gender identity. Mr Shaddock’s evidence is that there were 7 transgender prisoners incarcerated in Queensland prisons at the time of the hearing.

Was the imposition of the requirement reasonable?

  1. [183]
    The respondents bear the onus of establishing on the balance of probabilities that the requirement was reasonable.[35] The issue must be addressed in accordance with s 11(2) of the AD Act and s 319H of the CS Act.
  2. [184]
    How the Tribunal is to approach the question was dealt with in the decision of Mahommed v State of Queensland[36] by President Dalton SC:

The test of reasonableness (of the term) is an objective one, less demanding than a test of necessity, but more demanding than a test of convenience. I am required to weigh “the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the term on the other and all other circumstances, including those specified in section 11(2)”.

  1. [185]
    On the question of reasonableness, the applicant argues that the term has no utility because of her gender identity, that its effect on her was harmful in terms of the distress it caused her and that an alternate non-discriminatory course was available to the respondents. That is, the applicant could be addressed consistently with her gender identity.
  2. [186]
    The applicant argues that denying her gender identity is not treatment consistent with the COPD.
  3. [187]
    The first respondent does not address these matters in either of its submissions with respect to the pronoun issue, limiting itself to an analysis of a term in relation to the IMPs.
  4. [188]
    The second and third respondents address the issue of reasonableness of the term by reference to the requirements of s 319H(2) of the CS Act and submit that the context is all important in considering the nature, purpose and effect of the communications involving male pronouns. It is submitted that the applicant was addressed consistently with the COPD and that Mr Walters evidence is that addressing the applicant 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.
  5. [189]
    The second and third respondents point to the evidence of Mr Walters when it was put to him that he displayed ‘disrespect’ for the applicant in seeking to ignore her transgender status and it was put that a simple solution to the applicant’s complaints would have been to address her as Ms Tafao and to refer to her as a woman, to which Mr Walters responded:

In the context again I don’t believe it was appropriate given that Ms Tafao had engaged in inappropriate behaviour. My concern was for her welfare and for the welfare of the prisoners and the good order of the centre. To highlight the identified gender, I believed, may have had negative consequences in terms of either facilitating her behaviour that was occurring, or, more importantly, how other prisoners might have then started to behave towards her.[37]

  1. [190]
    It was put to Mr Walters:

So your evidence is that your solution to a perceived problem to ignore her gender identity?

Mr Walters: I wasn’t ignoring her gender identity. I was trying to manage the prisoner.[38]

  1. [191]
    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.
  2. [192]
    I do not accept the submissions of the applicant directed to the elements of s 319H of the CS Act which go to the administration and operation of SQCC. 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.
  3. [193]
    I accept that the use of male personal pronouns caused the applicant distress. However, in weighing that against what I find to be the genuinely held reasons for doing so, and the broader implications for the safe operation of the prison, I find that it was reasonable to address the applicant by reference to her gender not gender identity and implicitly to require the applicant to ignore her gender identity when being addressed.
  4. [194]
    I find that the claim for indirect discrimination has not been made out.

Bad faith

  1. [195]
    I find that there has been no contravention of the Act. The issue of bad faith does not therefore arise. However, for completeness I find on the same basis as set out earlier in this decision that there has been no bad faith in the imposition of any term or requirement on the applicant.

Vicarious Liability

  1. [196]
    Because I have found that there has been no contravention of the Act, the question of vicarious liability as contended for by the applicant does not arise. However, for the sake of completeness I find that if a contravention had occurred the second respondent would be liable for the acts of its employee the third respondent, pursuant to s 133 of the Act.
  2. [197]
    The applicant contends that the first respondent is vicariously liable under s 133 of the Act for the actions of its agents, including the second and third respondents, who were at all material times acting as agent.
  3. [198]
    The first respondent denies that the second and/or third respondents were its agents.
  4. [199]
    At all relevant times, the second respondent was appointed to manage and operate SQCC in accordance with the Management and Operation Agreement for the Southern Queensland Correctional Centre, dated 28 July 2011.[39]
  5. [200]
    The Work was required to be performed in accordance with standards and requirements, in accordance with policies and procedures of Queensland Corrective Services in the right of the State of Queensland and in accordance with its instructions from time to time.
  6. [201]
    The second respondent was authorised to perform the functions of the Chief Executive and a Corrective Services officer under Chapter 6 Part 3 of the CS Act. The second respondent was authorised to appoint its employees as Corrective Services Officers.
  7. [202]
    Despite the second and third respondents being given the authority to act on behalf of the first respondent by performing its functions under the CS Act, the first respondent submits that the second respondent was merely an independent contractor and that neither the second nor the third respondent were its agent because there is no express or implied consent to either the second or third respondent acting on behalf of the first respondent. The first respondent says that the second respondent had the ultimate exercise of discretion in the management and operation of the SQCC and was not subject to instruction on a day to day basis.
  8. [203]
    I find that the second and third respondents were the agents of the first respondent because they were given authority by the CS Act to perform the functions of officeholders under that Act, as set out in the Management and Operation Agreement and significant rights of control over the second and third respondents were exercised by virtue of the terms of the Agreement and the provisions of the CS Act. I note that authorisation of an engaged service provider to perform an authorised function does not relieve the Chief Executive of Queensland Corrective Services of the Chief Executive’s obligation to ensure the function is properly performed.[40]
  9. [204]
    Application of the relevant COPD and imposition of IMPs (which gave rise to the allegations of discrimination) fell within the authorised manner of performance of the second and third respondents’ functions.
  10. [205]
    I reject the submission that the second and third respondents were not acting on behalf of the first respondent. That is the very reason for the second respondent’s appointment and the appointment of the third respondent as a Corrective Services officer. They were not acting on their own account in the management and operation of SQCC.
  11. [206]
    The extract from South Sydney District Rugby League Football Club Ltd v News Limited & Ors[41] set out in the first respondents’ submissions defines agency in terms consistent with the facts of this case and makes the point that agency and status as an independent contractor are not mutually exclusive.
  12. [207]
    Once the relationship of principal and agent is established, s 133 of the Act operates to make the principal and its agent jointly and severally liable for any contravention of the Act by its agent, subject to such steps as it may have taken to prevent contravention of the Act by the agent.
  13. [208]
    The first respondent submits that the Management and Operations Agreement requires the second respondent to comply with all laws and to comply with the relevant COPD in respect of Transgender prisoners. On balance I do not think those steps are sufficiently particularised to amount to the taking of reasonable steps to avoid contravention of the Act.
  14. [209]
    This is an artificial exercise, but my conclusion is that if a contravention of the Act by the second and third respondents had been determined to have occurred, a finding of liability on the part of the first respondent would have been found pursuant to s 133 of the Act.

Relief

  1. [210]
    In view of my findings, the applicant has no entitlement to any relief. However, for completeness I will deal with the applicant’s claim.
  2. [211]
    The applicant’s evidence in chief[42] is that during her imprisonment and for a month or two afterwards she felt depressed and experienced suicidal thoughts. She attributes these feelings to her treatment in prison. The applicant gave evidence that by the time of the second IMP she ‘became a shell of who I was and who I had been up until that point’.
  3. [212]
    The applicant was not cross examined in relation to how she felt.
  4. [213]
    The applicant did not call any medical evidence to support her claims.
  5. [214]
    The first respondent submits that the applicant gave no evidence as to how she felt in respect of the two claims actually agitated before the Tribunal. The applicant’s affidavit was affirmed before the further amended contentions were filed in October 2017 which limited the claim to the Pronoun and IMP issues. The point is made that it is possible the applicant’s feelings related to the other matters previously raised by her in the proceeding. The second and third respondents make similar submissions.
  6. [215]
    The first respondent says that the onus is on the applicant to prove a clear causal link between a contravention of the Act and any injury.[43] It is submitted that the Tribunal has no clear link between the alleged contraventions and the impact on the applicant.
  7. [216]
    The applicant seeks an award of damages in the range of $30,000.00-$50,000.00, consistent with the approach taken in Richardson v Oracle.[44]
  8. [217]
    I am very reluctant to make an award of damages for what is a medical condition which encompasses depression and suicidal thoughts without medical evidence as to the nature and extent of the injury and its cause. I do not think a statement from an applicant as to her psychological condition achieves an appropriate level of proof.
  9. [218]
    I am prepared to accept that the applicant was offended and distressed by the use of male pronouns and wording in the IMPs. On the state of the evidence I cannot find that these matters caused an injury resulting in a medical condition.
  10. [219]
    If it were appropriate to make an award in favour of the applicant I would do so on the basis that she had suffered hurt and humiliation. It is appropriate to make an award consistent with the Tribunal’s own previous decisions.[45] I accept the first respondent’s submission that the only comparable case is that of Sinden v State of Queensland[46] where an award of $20,000.00 was made.
  11. [220]
    Had contraventions of the Act been made out I would have awarded $20,000.00 inclusive of interest.

Costs

  1. [221]
    The respondents seek their costs. I note that there is an as yet undetermined interlocutory application for costs by the second and third respondents.
  2. [222]
    I order that the first, second and third respondents file and serve any submissions in relation to costs by 3 December 2018 and that the applicant file and serve any submissions in relation to costs by 17 December 2018.

Footnotes

[1] (2003) 217 CLR 92, 160.

[2] [2017] QCA 100, [29].

[3] [2014] QCAT 695, [60].

[4] Exhibit PS-02B to Mr Shaddock’s Affidavit.

[5] (2003) 217 CLR 92.

[6] [2017] QCA 100, [53].

[7] [2012] QCAT 284, [67] (Senior Member Oliver).

[8] Woodforth [2017] QCA 100, [54].

[9] [2013] QCA 116, [27] citing Purvis v New South Wales (2003) 217 CLR 92, 161 [224] (Gummow, Hayne and Heydon JJ).

[10] Ibid [30], [31].

[11] Lyons v State of Queensland [2015] QCA 159, [39].

[12] See attachments LT 6, 7 and 8 to the affidavit of Leilani Tafao affirmed 21 August 2017.

[13] “cisgender.” Oxford University Press. 2018. https://en.oxforddictionaries.com (17 October 2018).

[14] Tung v State of Queensland [2013] QCAT 251, [26]–[50].

[15] McEvoy v Lobban [1990] 2 Qd R 235, 237, 241.

[16] SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749.

[17] Ibid.

[18] Affidavit of Leilani Tafao, sworn 21 August 2017, [57].

[19] Affidavit of Leilani Tafao, sworn 21 August 2017, [63].

[20] Affidavit of Leilani Tafao, sworn 21 August 2017, [64].

[21] T1 - 68, L25 - T1 - 69, L 37.

[22] T1 - 16, line 14, 23 April 2015.

[23] T1 - 16, line 30, 8 May 2015.

[24] T1 - 17, line 6 and 14 May 2015 T1 - 17, line 20.

[25] T1 - 22, lines 23 to 25.

[26] T1 - 27, line 35, Engaging in Offensive Behaviour on 8 October 2015, T1 - 28, line 27 and engaging in abusive behaviour on 25 October 2015, T1 - 28, line 34.

[27] T1 - 29, line 43.

[28] T1 - 30, lines 15 to 20.

[29] T1 - 30, lines 31 to 34.

[30] T1 - 31, lines 13 to 16.

[31] T1 - 64, lines 4 to 18.

[32] T1 - 30, lines 31 to 34.

[33] T, page 1-65, lines 1 to 10; T, page 1-65, lines 43 to 46; T, page 1-66, lines 14 to 21 and T, page 1-77, lines 20 to 35.

[34] Affidavit of Mark Walters – Exhibit 3, paras 35, 36.

[35] Section 205, Anti-Discrimination Act 1991 (Qld).

[36] (2006) QADT 21, 37, referring to HM v QFG & KG (1998) QCA 228.

[37] T1-61, lines 20 to 28.

[38] T1-61, lines 30 to 33.

[39] Attachment PS-01 to the Affidavit of Mr Shaddock – Exhibit 5 in the proceedings.

[40] Submissions of the First Respondent filed 8 March 2018, p 46 para 199.

[41] [2000] FCA 1541.

[42] Affidavit of Leilani Tafao affirmed 21 August 2017, paragraphs 70-77

[43] State of Queensland v Barney [2013] QCATA 104, [23] (Justice Alan Wilson and Senior Member Oliver.)

[44] (2014) 223 FCR 334.

[45] Green v State of Queensland, Brooker and Keating [2017] QCAT 8.

[46] [2012] QCAT 284.

Close

Editorial Notes

  • Published Case Name:

    Tafao v State of Queensland & Ors

  • Shortened Case Name:

    Tafao v State of Queensland & Ors

  • MNC:

    [2018] QCAT 409

  • Court:

    QCAT

  • Judge(s):

    Member Ann Fitzpatrick

  • Date:

    16 Nov 2018

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2018] QCAT 40916 Nov 2018Application under the Anti-Discrimination Act 1991 (Qld) that the applicant was the subject of both direct and indirect discrimination; application dismissed: Member Fitzpatrick.
Primary Judgment[2018] QCAT 42519 Dec 2018Costs judgment (from [2018] QCAT 409): Member Fitzpatrick.
Primary Judgment[2020] QCATA 7622 May 2020Leave to appeal granted; appeal allowed; decision made 16 November 2018 set aside and in lieu, it is declared the use of male pronouns to refer to the applicants constituted unlawful indirect discrimination, however the complaint alleging unlawful discrimination in relation to the imposition of internal management plans dismissed; respondents required to make a private apology pursuant to s 209(1)(d) of the Anti-Discrimination Act 1991 (Qld): Senior Member Howard and Member Traves.
Notice of Appeal FiledFile Number: Appeal 6855/2024 Jun 2020Appeal by the State of Queensland.
Notice of Appeal FiledFile Number: Appeal 6898/2025 Jun 2020Appeal by Serco Australia Pty Ltd and Mr Walters.

Appeal Status

Appeal Pending

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.