Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2022
  4. Mizner v State of Queensland (Queensland Corrective Services and Smith - [2022] QCAT 245

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

Mizner v State of Queensland (Queensland Corrective Services and Smith[2022] QCAT 245

Mizner v State of Queensland (Queensland Corrective Services and Smith[2022] QCAT 245

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Mizner v State of Queensland (Queensland Corrective Services and Smith [2022] QCAT 245

PARTIES:

Jason mizner

(applicant)

AND

state of queensland (queensland corrective services)

(first respondent)

JOEL SMITH

(second respondent)

APPLICATION NO/S:

ADL004-22

MATTER TYPE:

Anti-Discrimination matters

DELIVERED ON:

6 July 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Ann Fitzpatrick

ORDERS:

  1. 1.The first and second respondent are prohibited from placing the applicant in a dual occupancy cell until the applicant’s discrimination complaint referred on 24 December 2021 has been heard and determined in the Queensland Civil and Administrative Tribunal, or until further order.
  2. 2.The Order of this Tribunal made on 6 May 2022 is vacated.

CATCHWORDS:

INTERLOCUTORY INJUNCTION – PRESERVING THE STATUS QUO PENDING DETERMINATION OF RIGHTS – where applicant is a prisoner – where applicant alleges indirect discrimination on the basis of impairment – proposal to place applicant in a dual occupancy cell – where applicant established a prima facie case – where balance of convenience favours maintaining the status quo.

HUMAN RIGHTS – DISCRIMINATION – INDIRECT DISCRIMINATION – where applicant alleges indirect discrimination – where applicant brings a “piggy-back” claim asserting contravention of the Human Rights Act 2019 (Qld)

Anti-Discrimination Act 1991 (Qld), s 7(h), s 8, s 11, s 101, s 136, s 141, s 174A

Corrective Services Act 2006 (Qld), s 5A, s 18, s 319A, s 319H, s 319I

Human Rights Act 2019 (Qld), s 13, s 15, s 17, s 25, s 30, s 48, s 58, s 59

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 58, s 59

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 199

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148

Innes v Electoral Commission of Queensland (No2) (2020) 5 QR 423

Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273

Patrick Stevedores Operations No 2 Pty Ltd & Ors v Maritime Union of Aust & Ors (1998) 195 CLR 1

Proust v President of the Equal Opportunity Board (1990) EOC 92-275

Samsung Electrics Co. Ltd v Apple Inc. [2011] 217 FCR 238

APPEARANCES &

REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    This is an application for an interim injunction made by the applicant who seeks an order restraining the respondents from taking any steps to place him in a shared cell, or otherwise compel the applicant to share sleeping quarters with another prisoner until the applicant’s discrimination and human rights complaint has been heard and determined by the Tribunal, or until further order.
  2. [2]
    The application was filed on 5 May 2022, supported by an affidavit from the applicant’s solicitor attaching complaint material filed in the Queensland Human Rights Commission (QHRC); QHRC acceptance of the complaint, a letter from Dr Tie, Consultant Psychiatrist, Prison Mental Health Service; International Federation for Human Rights report into the Thai prison system; and correspondence from the applicant’s solicitor to the respondents’ solicitor. The application suggested that the matter was urgent and that there was a risk of physical and mental harm to the applicant.
  3. [3]
    On 6 May 2022 the Tribunal made an interim order pursuant to the Tribunal’s powers under s 58 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to suspend the operation of any decision by the respondents to place the applicant in a dual occupancy cell at Wolston Correctional Centre, pending determination of the application for an interim order filed 5 May 2022, or until further order of the Tribunal.
  4. [4]
    The respondents sought extensions of time for delivery of material and it was directed that the application would be determined on the papers not before 16 June 2022.
  5. [5]
    The background to the application is that on 24 December 2021 the QHRC referred the applicant’s complaints to this Tribunal. The QHRC accepted the complaint under sections 136 and 141 of the Anti-Discrimination Act 1991 (Qld) (A-D Act). The QHRC treated the complaint as alleging impairment discrimination in the area of administration of state laws and programs – sections 7(h), 10, 11 and 101 of the A-D Act. The QHRC identified allegations of limitations of the human right of recognition and equality before the law under s 15 of the Human Rights Act 2019 (HR Act).
  6. [6]
    By a statement of contentions filed 5 April 2022, the applicant says that he is a 47 year old male serving a 19 year prison term for sexual offences. Prior to incarceration in Australia, he served a total of 10 years and 11 months’ imprisonment in a Thai prison for child sex offences, until he was discharged and held in immigration detention before being deported to Australia. He will not be eligible for parole until 2032.
  7. [7]
    The applicant has sworn an affidavit on 20 May 2022 swearing to the matters raised in his statement of contentions filed in the Tribunal, and bringing his allegations up to date. The applicant asserts the following matters.
  8. [8]
    The applicant asserts that he has the attribute of impairment within the meaning of s 7(h) of the A-D Act because he has post-traumatic stress disorder (PTSD), borderline personality disorder and comorbid bipolar personality disorder (BPD), autism spectrum disorder (ASD), and acquired brain injury (ABI), and foot/leg injuries.
  9. [9]
    Under s 8 of the A-D Act the characteristics of the applicant’s complaints are said to include:
    1. (a)
      hypervigilance, emotional hyperarousal, mood swings and panic attacks;
    2. (b)
      intrusive recollections/flashbacks and nightmares;
    3. (c)
      nervous and endocrine system problems;
    4. (d)
      seizures;
    5. (e)
      difficulty sleeping;
    6. (f)
      sensitivity to light and noise disturbances while sleeping;
    7. (g)
      adjustment difficulties, including difficulties sharing sleeping quarters with other people;
    8. (h)
      exacerbation of mental illness symptoms and seizures when deprived of sleep;
    9. (i)
      mobility issues and in particular difficulties climbing a ladder.
  10. [10]
    The applicant says that from 25 January 2017 until 26 October 2018 he was accommodated at Arthur Gorrie Correctional Centre in a single cell, except for 2 to 3 short periods where he was transferred to shared accommodation for approximately 2 weeks at a time. On those occasions he would raise concerns about his ability to cope with shared accommodation with the Health Clinic psychologists and would be returned to single cell accommodation.
  11. [11]
    On 28 October 2018 the applicant was transferred to Wolston Correctional Centre where he was accommodated in a shared cell in a secure unit for 2 months.  In December 2018 he was placed under a safety order and accommodated in a single cell in a secure unit for approximately 1 month. From January 2019 he was accommodated in the residential unit for approximately 5 months where he was required to sleep on the floor of the common area. He was then moved into single cell accommodation from July 2019 until July 2020.
  12. [12]
    From July 2020 the applicant was temporarily required to sleep on the floor of another unit whilst bunk beds were installed in the first unit. He was told that he needed a letter from the prison psychologist recommending a single cell if that were to be provided upon return to the old unit. The applicant was placed in a shared cell. He obtained a letter from Dr Tie, Consultant Psychiatrist, Prison Mental Health Service dated 28 October 2020. Dr Tie supported the applicant’s request not to share a cell. He recorded the applicant’s persistent emotional hyperarousal, hypervigilance and intrusive recollections and said they were consistent with post-traumatic stress disorder, attributable to a myriad of adverse experiences over more than a decade in a Thai prison.
  13. [13]
    From March 2021 the applicant was moved to a single cell.
  14. [14]
    On 1 May 2022 the applicant was again moved to temporary accommodation and required to sleep on the floor of the common area. He returned to his cell on 8 May 2022.
  15. [15]
    On 11 May 2022 he was told by Ms Sheffield the prison psychologist that he did not meet the requirements to be placed on the Do Not Double Up (DNDU) list. The applicant asserts that he has been advised that he must provide proof of torture and trauma in custody in Thailand.
  16. [16]
    The applicant says that the respondents’ conduct is indirect discrimination on the basis of impairment under s 11 of the A-D Act in the goods and services area and the administration of state laws and programs, in that the respondents propose to accommodate the applicant in a shared cell.
  17. [17]
    It is contended that the respondents had actual or constructive knowledge of the applicant’s impairments and characteristics; and
    1. (a)
      terms were imposed that:
      1. the applicant was deemed to be suitable for placement in shared accommodation;
      2. the superintendent told the prisoners in the first unit that they were to decide amongst themselves how cell accommodation was to be allocated and would not permit the applicant to be allocated single cell accommodation;
      3. the applicant was placed in shared accommodation from about July 2020 until 19 March 2021;
      4. the letter of support provided by Qld Health Prison Mental Health Services did not meet the criteria that warranted single cell placement;
      5. to meet the criteria for single ell placement, the applicant was required to obtain a recommendation from a QCS Psychologist, and to obtain a recommendation for single cell placement from a QCS Psychologist, the applicant was required to provide the QCS Psychologist with documentary proof of his detention and torture in a Thai prison.
    2. (b)
      The applicant is not able to comply with those terms because of his impairments -  he will be caused distress. A lack of documentary evidence does not invalidate the diagnosis or symptoms experienced.
    3. (c)
      A higher proportion of people who do not have the applicant’s impairments are able to comply with those terms.
    4. (d)
      The terms are not reasonable, having regard to, inter alia, the respondents’ past and present ability to accommodate the complainant in single cell accommodation, and also the number of other prisoners who have been provided with single cell accommodation at the Wolston Correctional Centre.
  18. [18]
    The applicant complains that the respondents failed to act or make decisions in a way that was compatible with his human rights and to give proper consideration to his human rights in making decisions. The applicant asserts that the limits on his human rights were not reasonable or demonstrably justified under s 13 of the HR Act.
  19. [19]
    The applicant has in his affidavit of 20 May 2022 expressed the concern that if he were to be place in a shared cell for more than a few weeks it would impact on his mental health and lead him to have a mental breakdown.
  20. [20]
    The applicant seeks a Declaration that the conduct complained of is unlawful under the HR Act and/or amounted to indirect discrimination; an order that the respondents not commit any further contravention of the A-D Act against the applicant, an order that the respondents assess the applicant as meeting the criteria for single-cell accommodation for the remainder of his term of imprisonment and accommodate him accordingly; an apology and compensation and interest and costs.
  21. [21]
    It appears then, that if the Tribunal finds there has been a contravention of the A-D Act by placing the applicant in a shared cell in the past, it may under s 209(1)(a) make an order requiring the first respondent not to commit a further contravention of the Act against the applicant by placing him in a share cell. That is the Tribunal may consider making a mandatory injunction to restrain future conduct. The applicant may establish that the respondents propose to impose a term in the future, requiring the applicant to share a cell, which gives rise to indirect discrimination and which may also be a basis for a mandatory injunction.
  22. [22]
    The other relief available to the applicant may be compensation for loss or damage caused by the alleged contravention. That will be limited by s 3191 of the Corrective Services Act 2006 (Qld) (CS Act)
  23. [23]
    The applicant makes a “piggyback” claim for relief, which cannot be damages, but may be for example an injunction if the first respondent’s conduct in placing the applicant in a shared cell has been unlawful under s 58 of the HR Act.
  24. [24]
    In summary the respondents, in their response to the statement of contentions, say that the applicant has not evidenced thought disorder or perceptual disorder, that he does not meet the criteria to be placed on the Do Not Double Up list despite his requests, and that he has not expressed concerns during his placement in shared cell accommodation.
  25. [25]
    The respondents do not admit the alleged impairments and their characteristics and do not admit to actual or constructive knowledge of the alleged impairments and characteristics.
  26. [26]
    As to the terms said to have been imposed, the respondents:
    1. (a)
      admit the applicant was deemed suitable for placement in shared accommodation;
    2. (b)
      deny that prisoners would ever be permitted to ‘work out amongst themselves how they wished for their cells to be allocated’. The prisoner’s Accommodation Management Cell Allocation Custodial Operations Practice Directive (COPD), outlines the first respondent’s obligations when considering the placement of prisoners in a shared cell.  The COPD is said not to be a public document and immunity to its production is claimed. Despite this, I note that a public version of the document is attached to the applicant’s 20 May 2022 affidavit and to the second respondent’s affidavit of 15 June 2022.
    3. (c)
      admit the applicant was placed in shared accommodation from time to time, for a period of approximately 7 months.
    4. (d)
      deny that the letter of support provided by Qld Health Prison Mental Health Services constitutes a term, but contend the criteria to warrant single cell placement was not met and letter is a recommendation only, not a direction or means of criteria;
    5. (e)
      deny that a requirement to obtain a recommendation from a QCS Psychologist and to provide proof of detention and torture in Thailand constitutes a term and does not admit the allegation it was required.
  27. [27]
    The respondents say that to the extent a term was imposed on the applicant, he was able to comply with a term, namely that he was suitable for shared accommodation.
  28. [28]
    The respondents rely on s 319H(2) of the Corrective Services Act 2006 (Qld) (CS Act), and say that in determining the reasonableness of any term the Tribunal must consider that:
    1. (a)
      Wolston Correctional Centre psychologists determined there were no known issues to prevent the applicant sharing cell accommodation with another prisoner;
    2. (b)
      Qld Health did not advise that the applicant’s medical circumstances required that he be housed in a single cell;
    3. (c)
      The COPD was applied. It is not discriminatory to refuse to add the applicant to the DNDU list in circumstances where he did not meet the criteria in the COPD.
    4. (d)
      Wolston Correctional Centre was built with 600 individual cells.  Every cell is being altered to have double up capacity. As at June 2021 there were 837 prisoners to be housed across 600 cells.  The most at risk or those who are a risk to others or security of the prison are prioritised for single cell accommodation.
  29. [29]
    Any breach of the applicant’s human rights is denied by the respondents. No detail is given of the calculus applied in accordance with the HR Act to justify that denial.
  30. [30]
    The second respondent has provided an affidavit affirmed 16 June 2022. The second respondent is the Chief Superintendent and General Manager of Wolston Correctional Centre. The second respondent updated the numbers relating to prisoner accommodation. He says that single cells are the exception at the facility. As at 30 May 2022, there were 1049 beds across 600 cells, however there were 871 complex protection prisoners to be appropriately and safely accommodated across these cells. As at 25 May 2022 there were approximately 81 prisoners on the DNDU list at the facility. The second respondent says that prisoners are only placed on the DNDU list under exceptional circumstances.
  31. [31]
    The second respondent details the overarching considerations reflected in the COPD attached to the material, intended to ensure a prisoner is placed in suitable accommodation. Consideration of shared cell accommodations must be individually assessed and a case note entered in the Integrated Offender Management System (IOMS) that an assessment has been completed.
  32. [32]
    Importantly the second respondent says that due to prison overcrowding and the subsequent scarcity of single occupancy cells, Wolston Correctional Centre has been required to develop strict criteria which determines a prisoner’s eligibility to be put on the DNDU list.  It is said that such criteria is highly sensitive to ensure the integrity of the assessment process.  Diagnosis of a psychiatric disorder, physical impairment and/or hypersensitivity are not, in and of themselves, automatic criteria for a prisoner’s inclusion on the DNDU list.
  33. [33]
    I assume because of its sensitivity the second respondent has not provided details of the criteria in fact applied to assess the applicant’s suitability to be placed on the DNDU list or to be given a single cell.
  34. [34]
    The second respondent’s affidavit refers to case notes to the effect that there are no known issues that would prevent shared cell accommodation and to the effect that the applicant does not meet the criteria for the DNDU. The notes record the applicant requesting a single cell on numerous occasions after June 2020 and record the applicant’s concerns in relation to his mental health and his experience in Thailand. The second respondent confirms the applicant’s blue letters to him and complaint to the Official Visitor.
  35. [35]
    The second respondent refers to a case note dated 6 May 2022 regarding an assessment made for the applicant’s eligibility to be placed on the DNDU list, undertaken at the request of the applicant’s legal representative. The case note states that no at risk indicators were present and it is considered the applicant could be appropriately accommodated in double up accommodation if a suitable candidate for double up could be identified, and he be engaged and supported prior to this change occurring.
  36. [36]
    The second respondent referred to correspondence between himself and the applicant’s solicitor on 5 May 2022 sent at 5.12 pm and which was not included in the application for an interim order filed on that day on behalf of the applicant. The email confirms that the applicant remains in cell 4 and is currently a single occupant. He refuted any suggestion of a “recent and specific threat” to move the applicant to doubled-up accommodation once the renovations to cell 4 are complete. The second respondent did appear to acknowledge that advice had been given to prisoners about potential changes in accommodation given the retrofitting of bunk beds.

Legal basis for the applicant’s claim

Claim for relief under the Anti-Discrimination Act 1991 (Qld)

  1. [37]
    The applicant asserts that in breach of s 101 of the A-D Act, the respondents have discriminated against him in the performance of a function, the exercise of a power or the carrying out of a responsibility for the administration of State law or the conduct of a State Government program. The administration of the correctional facilities falls within the scope of s 101 of the A-D Act.
  2. [38]
    The applicant complains that the respondents have acted unlawfully by indirectly discriminating against him. By s 11(1) of the A-D Act indirect discrimination 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
    2. (b)
      with which a higher proportion of people without the attribute comply or able to comply; and
    3. (c)
      that is not reasonable.
  3. [39]
    By s 11(2) of the A-D Act 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
    2. (b)
      the cost of alternative terms; and
    3. (c)
      the financial circumstances of the person who imposes, or proposes to impose, the term.
  4. [40]
    In considering whether a term is reasonable the tribunal must consider any relevant submissions made about the matters set out in s 313H of the CS Act. I note the matters raised in the respondents’ response set out earlier.

Piggyback claim under the Human Rights Act 2019 (Qld)

  1. [41]
    The applicant relies on s 59(2) of the HR Act to seek relief or a remedy on a ground of unlawfulness arising under s 58 of the HR Act and is able to do so because he seeks relief or a remedy in relation to an act or decision of a public entity on the ground that the act or decision was, other than because of s 58, unlawful. That is, he seeks relief or a remedy under the A-D Act. Section 58 makes it unlawful for a public entity to act or make a decision in a way that is not compatible with human rights; or in making a decision to fail to give proper consideration to a human right relevant to the decision. The applicant is pursuing what is called a “piggyback” action. The applicant may by s 59(2) of the HR Act seek relief or a remedy even if not successful in the A-D Act proceeding.

Relief sought

Interim injunction

  1. [42]
    The applicant seeks an interim injunction pursuant to s 59(1) of the QCAT Act, whereby the Tribunal may, by order, grant an injunction, including an interim injunction, in a proceeding if it is just and convenient to do so.
  2. [43]
    The applicant relies on s 174A of the A-D Act, whereby it is a function of the Tribunal to hear and decide complaints. By s 174A(e) of the A-D Act the Tribunal may take any other action incidental or conducive to the discharge of its function.
  3. [44]
    It is relevant that the grant of an interim injunction under s 59(1) of the QCAT Act is a statutory remedy. In this case the remedy is applied in the context of an anti-discrimination claim. Accordingly, although the general law principles are applied when considering the making of an interim injunction in these circumstances, the principles act as a guide.[1]In this regard, I do not consider it relevant to consider an undertaking as to damages as might be the case in civil litigation under the general law.
  4. [45]
    The applicant bears the onus of proving to the Tribunal that it is just and convenient for the interim injunction he seeks to be made and by reference to general law principles must establish:
    1. (a)
      there is a serious question to be tried or that he has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the hearing of the complaint, the applicant will be held entitled to relief;
    2. (b)
      that the applicant will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and
    3. (c)
      the balance of convenience favours the granting of an injunction.[2]
  5. [46]
    I note the observations of Gaudron J in Australian Broadcasting Commission v Lenah Game Meats Pty Ltd when considering the meaning of the phrase “just and convenient” in relation to the power conferred on the Supreme Court of Tasmania to grant an interlocutory injunction. Her Honour said that the role of Australian courts is to do justice according to law – not to do justice according to idiosyncratic notions as to what is just in the circumstances. Her Honour makes the point that an injunction is a curial remedy, it can only issue to protect an equitable or legal right, or which is often the same thing, to prevent an equitable or legal wrong.[3] That is, there must be a sound legal basis to the applicant’s claim before an interlocutory injunction will be granted.
  6. [47]
    Considerations relevant to the general law principles are that:
    1. (a)
      when determining whether there is a serious question to be tried the court should not attempt to resolve conflicts of evidence.[4]
    2. (b)
      As to the meaning of the phrase “prima facie” case it is not the case that the applicant must show that it is more probable than not that the applicant will succeed at the hearing.  It is sufficient that the applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the hearing. How strong the probability needs to be depends, upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order he seeks.[5]
    3. (c)
      whether the applicant will suffer irreparable injury for which damages will not be an appropriate remedy and whether the balance of convenience favours granting an injunction are overlapping questions of fact.
    4. (d)
      the balance of convenience has been described as an enquiry as to whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted.[6]The respondents submit and I accept that relevant factors include the strength of the applicant’s case, effect of the injunction upon the respondent, and also upon third parties, questions of hardship, the availability of alternative remedies, delay, any undertakings offered by the respondent, and the respondent’s conduct.[7]
    5. (e)
      The issue of whether the applicant has made out a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries and should not be considered in isolation from each other.[8]

Parties’ submissions

Serious question to be tried

  1. [48]
    The applicant submits that there is a serious issue to be tried in that there is a sufficient likelihood of success to justify the preservation of the status quo pending the hearing. It is said this is satisfied by the QHRC determining that the complaint set out sufficient details to indicate an alleged contravention of the A-D Act.
  2. [49]
    The applicant’s statement of contentions set outs the issues to be tried under the A-D Act and the HR Act.
  3. [50]
    Further, while no directions have been made for the filing of evidence, preliminary evidence filed with the application for an interim injunction includes:
    1. (a)
      a letter from Dr Tie reporting the applicant’s symptoms are consistent with post-traumatic stress disorder attributable to the applicant’s time in a Thai prison; and
    2. (b)
      FIDH report on prison conditions in Thailand dated February 2017 which discusses overcrowding and artificial lighting interfering with sleep and practices amounting to torture.
  4. [51]
    It is said the applicant has filed reasonably sufficient material to articulate his case and show a likelihood of success to justify an injunction preserving the status quo pending the hearing.
  5. [52]
    The respondents say that the applicant has been assessed as suitable for shared placement. The application for an interim injunction does not seek to reinstate or maintain a state of affairs that existed prior to the application for interlocutory relief but seeks to impose upon the first respondent a mandatory injunction impeding its ability to make decisions as to the operation of Wolston Correctional Centre.
  6. [53]
    As against that submission the applicant was for the most recent period from March 2021 to May 2022 accommodated in a single cell at the facility. The second respondent has said that it was the respondents’ intention to return him to a single cell after sleeping in the common area of the unit. I accept the applicant’s submission that accommodation in a single cell represents the status quo as at the time of referral of the complaint and the making of the application for an interim injunction. To accept the respondents’ submission that the status quo is represented by the applicant being suitable for share placement in cell, means accepting the very issue in dispute in the proceeding, and on which there is competing evidence.
  7. [54]
    The respondents say that acceptance of the complaint by the QHRC is no indicator of the likelihood of success of the claim. I accept that submission and find that acceptance of the complaint merely demonstrates that the complaint is not vexatious or misconceived, it does not go to the strength of the complaint so as to characterise the complaint as a serious question to be tried. The QHRC itself says that acceptance of the complaint does not mean it is substantiated or proved. It simply means that at least one allegation contained in the complaint is about conduct which may be a breach of the Act and so the QHRC must try to resolve the complaint.[9]Acceptance of a complaint is a very low bar.
  8. [55]
    The respondents rely on their response to the statement of contentions to say that the applicant has poor prospects of success. The response relies on a dispute as to whether the applicant suffers an impairment and insofar as a term has been imposed on the applicant that he is suitable for shared accommodation, that term was met and was reasonable.
  9. [56]
    The applicant’s evidence in support of his impairment is a report from Dr Tie and a 2017 report into conditions in a Thai prison.  The respondents say that Dr Tie’s report is qualified in that it sets out the applicant’s description of his condition and Dr Tie does not make his own diagnosis of the applicant. I observe that any medical practitioner will record a person’s description of symptoms. Some matters are incapable of independent scrutiny, unless observed at the time, such as “emotional hyperarousal and hypervigilance”. Some matters such as “intrusive recollections” must be taken on faith. Dr Tie is the applicant’s treating psychiatrist. He has been prepared to express a professional opinion that the applicant’s symptoms are consistent with post traumatic stress disorder attributable to more than a decade in a Thai prison. Importantly he has been prepared to support the applicant’s request not to share a cell. Dr Tie has appropriately acknowledged that custodial placement is ultimately a matter for Queensland Corrective Services taking into account clinical and non-clinical factors.
  10. [57]
    Dr Tie’s evidence is untested, but so far as it goes it is evidence of the applicant having post-traumatic stress disorder and it is evidence that accommodation in a single cell is desirable.
  11. [58]
    The report as to conditions in Thai jails is compiled by a credible organisation, and if its contents are accepted one might conclude that long-term exposure to the conditions in the jails may cause psychological problems for inmates. The report provides context for the applicant’s claim that he suffers an impairment, but its probative value at this stage is limited.
  12. [59]
    I find on the basis of Dr Tie’s report that there is sufficient evidence the applicant suffers an impairment, that the impairment is post-traumatic stress disorder and that the applicant has disclosed to him the characteristics of that impairment, consistent with the complaint.
  13. [60]
    The evidence from the respondent does not go to the question of an impairment. The respondents’ evidence is that the applicant has been assessed as not meeting the DNDU criteria.[10]
  14. [61]
    In relation to whether there is a sound legal basis to the applicant’s claim, it is possible that the applicant’s circumstances could give rise to a valid claim for relief from indirect discrimination. At the heart of such a claim is the term said to be imposed on the applicant. It is clear that the applicant complains that he is or may in the future be required to share a cell. The applicant has not framed that requirement as the term imposed on him. It is difficult to construe the matters set out in the statement of facts and contentions, which are said to be terms imposed on the applicant, as actual requirements. They are appear to be alleged evidence of the respondents’ intention to place the applicant in shared accommodation.
  15. [62]
    The respondents deny that the matters relied upon by the applicant constitute a term imposed on the applicant. However, it is admitted that the applicant was deemed to be suitable for placement in shared accommodation.
  16. [63]
    To make sense of the applicant’s claim and taking the one matter admitted by the respondents to its logical conclusion I find that the applicant’s claim of indirect discrimination is founded on an assessment that he is suitable for placement in shared accommodation and that as a result he may be required to share accommodation.
  17. [64]
    The applicant’s evidence is that he cannot comply with the requirement that he share accommodation, because of his impairment of post-traumatic stress disorder with its accompanying characteristics. That evidence is disputed, but I cannot in this application make a finding on the disputed evidence.  I am satisfied that a person with post-traumatic stress disorder exhibiting characteristics of persistent emotional hyperarousal, hypervigilance and intrusive recollections would suffer distress if required to share a cell. 
  18. [65]
    I am prepared to accept as a reasonably likely proposition that a higher proportion of people without post-traumatic stress disorder and its accompanying characteristics,  comply or able to comply with the requirement to share a cell.
  19. [66]
    As to whether the term is reasonable is a difficult question. On the one hand it is said that sharing a cell will cause distress to a prisoner with a mental health condition. On the other hand, the respondents say that the COPD has been complied with and criteria for placement on the DNDU list has been applied to the applicant such that he is suitable for shared accommodation. The problem is that the criteria is not disclosed. It is not possible to form a view as to whether the criteria are reasonable, and the conclusion reached reasonable.
  20. [67]
    The context is that accommodation in a single cell is the exception at WCC. The facility is overcrowded necessitating the installation of bunk beds and the requirement for prisoners to double up. On the second respondent’s evidence there are 600 cells but 871 prisoners to be accommodated. 81 prisoners are on the DNDU list. It is apparent that there are logistical constraints on the ability of the first respondent to provide single cell accommodation to the applicant.
  21. [68]
    Apart from this, no detailed submissions have been made in relation to the considerations set out in s 319H of the CS Act which go to the question of reasonableness of the term. No evidence has been given as to the actual consequence to the first respondent if the applicant is not accommodated in a shared cell, the cost of alternative arrangements or the financial circumstances of the first respondent.
  22. [69]
    On this preliminary assessment, I find that there is a serious question to be tried. I find that there is a sufficient likelihood of success of a claim for relief as a result of indirect discrimination to justify the preservation of the status quo pending the hearing.
  23. [70]
    It is also relevant to consider the piggyback claim, whereby the applicant claims the respondents have contravened s 58 of the HR Act, by failing to act or make a decision in a way that is not compatible with human rights; or in making a decision, to fail to give proper consideration to a human right relevant to the decision. The allegation is denied.
  24. [71]
    The relevant human rights are said by the applicant to be:
    1. (a)
      recognition and equality before the law, in particular by s 15(2) of the HR Act the right to enjoy human rights without discrimination; and by s 15(4) of the HR Act that every person has the right to equal and effective protection against discrimination;
    2. (b)
      protection from torture and cruel, inhuman or degrading treatment, in particular by s 17(b) of the HR Act that a person must not be treated or punished in a cruel, inhuman or degrading way;
    3. (c)
      privacy and reputation, specifically by s 25(a) of the HR Act, a right not to have privacy arbitrarily interfered with; and
    4. (d)
      humane treatment when deprived of liberty, specifically by s 30(1) of the HR Act, all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
  25. [72]
    The second respondent affirms in his affidavit that the COPD requires that consideration must be given to prisoners’ human rights when making any decision and that human rights can only be limited if certain conditions are present and only to the extent that can be reasonably and demonstrably justified.
  26. [73]
    Owen-Darcy v Chief Executive, Queensland Corrective Services[11] provides guidance in relation to the detailed considerations required of the first respondent. The first respondent has a substantive obligation to identify relevant human rights and set them out by reference to the facts, to say how the decision will limit the human rights and whether the limits are reasonable and justified by reference to the matters in s 13 of the HR Act. The first respondent has a procedural obligation to identify the human rights that may be affected by the decision and to consider whether the decision would be compatible with human rights. It is possible such an analysis has been undertaken. Such an analysis is not evident on the material before the Tribunal, including on the case note of the 6 May 2022 DNDU assessment. I note the second respondent affirms that the case note must detail how human rights were properly considered and balanced.
  27. [74]
    The respondents in their submissions point to s 5A of the CS Act which provides that where it is not practicable for a prisoner to be provided with his own room it is not a contravention of s 58(1), only because the chief executive takes into account the security and good management of corrective services facilities or the safe custody and welfare of all prisoners. The difficulty at this point is that it is unknown what the respondents took into account.
  28. [75]
    The result is that apart from the applicant’s claim under the A-D Act, there is a serious question to be tried in relation to the applicant’s claim pursuant to s 59 of the HR Act, based on the lack of evidence that there has been compliance with s 58 of the HR Act.
  29. [76]
    In reaching a level of satisfaction as to the applicant’s likelihood of success, it is relevant that the applicant’s complaint relies on beneficial, human rights laws. The practical consequences likely to flow from the order sought is discussed in more detail in relation to the balance of convenience, but a distinguishing factor in this case is the prospect that harm will be inflicted on the applicant if the order he seeks is not made.

Damages not an adequate remedy

  1. [77]
    As to whether the applicant will suffer irreparable injury for which damages will not be an appropriate remedy, there is no evidence that the applicant will suffer irreparable injury, I accept that the applicant may suffer some harm based on the support given by Dr Tie to the applicant occupying a single cell.
  2. [78]
    The effect of the respondents’ submissions is that the applicant is not at risk of harm if placed in a shared cell.
  3. [79]
    The respondents submit that Dr Tie does not say that the risk of harm to the applicant is increased in a shared cell as contrasted to a single cell. Dr Tie has not used those words, however, he has clearly stated that he supports the applicant’s request not to share a cell. That support must have been given for a reason. I infer that the most probable reason for Dr Tie’s support is the avoidance of harm to the applicant.
  4. [80]
    The respondents submit that Dr Tie’s letter does not refer to any matter from which it could be inferred that any decision made by the first respondent about the applicant amounted to unlawful discrimination. I have relied on Dr Tie’s report as some evidence, albeit limited, that the applicant has the impairment of post-traumatic stress disorder, that there are characteristics consistent with that condition suffered by the applicant and that the applicant may be exposed to harm if placed in a shared cell. Those factors have informed my conclusions set out earlier in this decision as to there being a serious question to be tried in relation to the claim of indirect discrimination.
  5. [81]
    The respondents say that no weight should be given to the applicant’s own view as to the impact of sharing a cell, because he is not medically qualified and he has not complained when placed in a dual occupancy cell in the past. The respondents also point to the applicant sleeping on the floor of a residential unit without complaint. On that last point the applicant says that he knew the arrangement was short term. There is no evidence before me as to how the sleeping arrangements were set up in the common area. I can only assume they were safe and reasonable in the circumstances.
  6. [82]
    The applicant in making his complaint must necessarily set out his circumstances. It is relevant to consider the applicant’s sworn evidence as to his mental health condition and his concerns as to the impact of sharing a cell. Obviously, the applicant’s evidence is untested. This is a preliminary assessment only, not a final determination. I do not place any more weight on the applicant’s evidence than that. However, I note that Dr Tie’s report is consistent with the applicant’s complaint and even though the applicant has shared a cell over periods of time, the applicant has also raised his concerns in relation to sharing a cell with the Superintendent, the QCS Psychology counselling service, with Dr Tie, with the official visitor, and with his solicitors.
  7. [83]
    In all I am not satisfied on the limited evidence available that the applicant would not suffer harm if placed in a shared cell.
  8. [84]
    The applicant’s entitlement to an order for compensation by way of final relief is limited by s 319I of the CS Act and in any event cannot result in a payment direct to the applicant offender. I accept the applicant’s submission that the Tribunal cannot make an order that will fully redress any discrimination and HR Act breaches that the applicant will suffer if placed in a shared cell

Balance of convenience

  1. [85]
    The applicant submits that if an interim injunction is not granted, he is likely to suffer significant harm as a consequence of being forced to share accommodation with another prisoner.
  2. [86]
    The applicant swears in his affidavit filed 20 May 2022 as to his mental health history whilst incarcerated in Australia upon being deported from Thailand. The applicant says that within his first month in custody at Arthur Gorrie Correctional Centre he attempted suicide. He says that because of his PTSD he is hypersensitive to sleep disturbances. When sharing a cell the normal behaviour of his cell-mates such as turning on the light or getting up to use the toilet will frequently wake him and he experiences panic attacks and extreme anger. He is then unable to sleep for the remainder of the night.  Ongoing sleep deprivation exacerbates his mental health issues which has previously deteriorated to the point of experiencing seizures.
  3. [87]
    The applicant also says that he currently occupies a single cell, single cells are offered to other prisoners assessed as meeting the relevant criteria and the respondents have control over the built environment to ensure appropriate accommodation of prisoners.
  4. [88]
    Finally, it is said that providing the applicant with a single cell is consistent with the security and good order of the facility, noting the serious mental health issues suffered by the applicant when in shared accommodation.
  5. [89]
    The respondents say that the applicant has not demonstrated a sufficient likelihood of success to justify making an interim order. I have previously dealt with that issue.
  6. [90]
    The respondents say that accommodation decisions are operational and made in response to changing conditions such as prison numbers, requirements and available cells. Ongoing renovation work is impacting availability of prison accommodation. The prison is overcrowded and there are competing demands as to available accommodation space. In that context if the respondents are required to accommodate the applicant in a single cell irrespective of the operational requirements of the prison and the needs of other prisoners there is a risk the injunction will impact on other prisoners assessed as requiring single cell accommodation and who may not be able to be so accommodated because of preferential treatment given to the applicant.
  7. [91]
    It is also suggested by the respondents that an interim order will prevent the applicant being moved in circumstances of emergency, security, safety or other reasons which may present issues for both the applicant and/or other prisoners. I can foresee no circumstance where the respondents would knowingly put the applicant or other prisoners at risk in a case of emergency or where security or safety is at risk by rigid adherence to an order intended merely to preserve the status quo in terms of occupancy of a single cell. As the respondents should be aware, if necessary, the Tribunal can be approached on an urgent basis for a different order.
  8. [92]
    There would not appear to be an alternative remedy. The respondent has offered no undertaking to ameliorate the risk to the applicant. The latest case note records that if the applicant is to be moved to a shared cell an attempt will be made to find a compatible cell-mate. The applicant’s mental health would be assessed at that time and support and change related intervention offered. It is not clear what that latter proposal means.
  9. [93]
    The respondents assert that they have acted appropriately by responding to the applicant’s requests for review of his suitability to be placed on the DNDU list. I note that in doing so the respondents have applied unknown criteria for suitability which are the subject of an allegation that the criteria are unreasonable. It is difficult without the benefit of evidence as to the criteria to attribute weight to the respondents’ assertion.
  10. [94]
    After considering the competing factors I find that the demonstration of a sufficient likelihood of success in the complaint, and the risk of harm to the applicant’s mental health must outweigh the operational problems encountered by the respondents in safely accommodating all prisoners. There is no evidence before me that prisoners in need of single cell accommodation will not be able to be accommodated because of the applicant being allocated a single cell on an interim basis. The respondents have expressed the concern as a risk only.

Human Rights considerations

  1. [95]
    The applicants submit that the Tribunal is bound by s 48(1) of the HR Act to interpret section 59 of the QCAT Act in a way that is compatible with human rights so that significant weight is placed on the potential harm to the applicant, the potential limitations of his human rights and the inability for damages to address human rights breaches. Those matters have formed part of the consideration of this matter by reference to the general law requirements.
  2. [96]
    Beyond that the Tribunal is acting in a judicial capacity exercising a judicial power in its consideration of the grant of an interim injunction. The rights relevant to the exercise of that power are the right to recognition as a person before the law and the right to a fair hearing. Those rights have been applied noting the legal representation of the parties and the full opportunity for the parties to make submissions and to file material.[12]

Conclusion

  1. [97]
    On the material before me at this preliminary stage I am satisfied that the applicant is entitled to an interim injunction preserving the status quo so that he may occupy a single cell until determination of this matter or earlier order.
  2. [98]
    The respondents submit that if an interlocutory injunction is to be granted, the terms ought not be limited to preventing the applicant from being placed in a dual occupancy cell, rather than preventing the applicant from being compelled to share sleeping quarters, as the current interim order is cast. It is noted by the respondents that as at 6 May 2022 the applicant was sleeping on the floor of the residential unit common area with no risk factors identified. As I have said, the evidence is that has been a short- term arrangement whilst construction work is undertaken. I am prepared to frame the interlocutory injunction in the terms proposed by the respondents, however I do so on the basis that the respondents do not intend to continue to accommodate the applicant on the floor of the residential unit common area on a long-term basis as a means of complying with the interim injunction. If I am mistaken as to the respondents’ intention the respondents’ solicitors should advise the Tribunal and the applicant’s solicitors accordingly.
  3. [99]
    I do, however, appreciate the difficulty of managing an overcrowded prison with the competing demands of many prisoners who expect to be accommodated in a single cell.
  4. [100]
    The best way forward is to ensure that this matter is determined as quickly as possible and that the parties file their evidence as soon as possible. To that end the Tribunal will schedule a Directions Hearing to timetable the matter to the earliest possible hearing date.

Footnotes

[1] Proust v President of the Equal Opportunity Board (1990) EOC 92-275, 77, 822.

[2] Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, 153; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [13] (Gleeson CJ); Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, [65].

[3] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [59], [61].

[4] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 622.

[5] Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 199, [65].

[6]  Ibid [65].

[7] Patrick Stevedores Operations No2 Pty Ltd & Ors v Maritime Union of Aust & Ors (1998) 195 CLR 1, 46-47.

[8] Samsung Electronics Co. Ltd v Apple Inc. [2011] 217 FCR 238, [67].

[9]  Letter Queensland Human Rights Commission to Queensland Corrective Services dated 1 October, 2021.

[10]  Affidavit of Joel Smith, filed 16 June 2022, Exhibit JS-8.

[11]  [2021] QSC 273.

[12] Innes v Electoral Commission of Queensland (No 2) (2020) 5 QR 623, [222]-[223].

Close

Editorial Notes

  • Published Case Name:

    Mizner v State of Queensland (Queensland Corrective Services and Smith

  • Shortened Case Name:

    Mizner v State of Queensland (Queensland Corrective Services and Smith

  • MNC:

    [2022] QCAT 245

  • Court:

    QCAT

  • Judge(s):

    Member Ann Fitzpatrick

  • Date:

    06 Jul 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
3 citations
Jump To
Cite 1 - (2001) 208 CLR 199
Cite 2 - (2001) 208 CLR 199
Cite 3 - (2001) 208 CLR 199
Attorney-General's Department v President of Equal Opportunity Board & Ors (1990) EOC 9 2-275
2 citations
Jump To
Cite 1 - (1990) EOC 9 2-275
Cite 2 - (1990) EOC 9 2-275
Australian Broadcasting Corporation v O'Neill (2006 ) 227 CLR 57
1 citation
Jump To
Cite 1 - (2006 ) 227 CLR 57
Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 199
2 citations
Jump To
Cite 1 - (2006) 227 CLR 199
Cite 2 - (2006) 227 CLR 199
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
2 citations
Jump To
Cite 1 - (1968) 118 CLR 618
Cite 2 - (1968) 118 CLR 618
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
2 citations
Jump To
Cite 1 - (1986) 161 CLR 148
Cite 2 - (1986) 161 CLR 148
Innes v Electoral Commission of Queensland (No 2)(2020) 5 QR 623; [2020] QSC 293
1 citation
Jump To
Cite 1 - (2020) 5 QR 623
Innes v Electoral Commission of Queensland (No2) (2020) 5 QR 423
1 citation
Jump To
Cite 1 - (2020) 5 QR 423
Owen-D'Arcy v Chief Executive, Queensland Corrective Services(2021) 9 QR 250; [2021] QSC 273
2 citations
Jump To
Cite 1 - [2021] QSC 273
Cite 2 - [2021] QSC 273
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
2 citations
Jump To
Cite 1 - (1998) 195 CLR 1
Cite 2 - (1998) 195 CLR 1
Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238
2 citations
Jump To
Cite 1 - (2011) 217 FCR 238
Cite 2 - (2011) 217 FCR 238

Cases Citing

Case NameFull CitationFrequency
Thomas v The Star Entertainment Qld Limited & Ors [2025] QCAT 1731 citation
1

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.