Ali v State of Queensland[2023] QCAT 109

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is a complaint made by Mr Raymond Ali under the Anti-Discrimination Act 1991 (Qld) (ADA) about events which happened in 2016 and 2017 when he was in prison.  In a nutshell he says that, as a Muslim, he was discriminated against by:

   1. (a)
      not being provided with a grill uncontaminated with pork which he could use at breakfast time at his unit at Woodford Correctional Centre – the grill issue;
   2. (b)
      while he was in hospital over twelve days he was deliberately given non Halal food including pork which is forbidden by his religion – the non-Halal food in hospital complaint.
2. [2]
   The hearing was listed for four days.  Although this listing seemed rather lengthy, the reason was that the respondent had six witnesses to deal with complaint (a), and thirteen witnesses to deal with complaint (b).  Although the tribunal has powers to limit the evidence, my view is that the respondent was justified in adducing all this evidence.
3. [3]
   After Mr Ali was released on parole he was deported to Fiji and so he could not attend the hearing physically.  Instead he attended by video conferencing and the tribunal is grateful to the Judicial Department of Fiji for providing the facilities to enable that to happen. 
4. [4]
   On day 1 of the hearing Mr Ali gave his evidence and was cross examined, and two witnesses were called by the respondent dealing with complaint (b) and they were cross examined by Mr Ali. 
5. [5]
   On day 2 however, before the start of the hearing, Mr Ali informed the tribunal by email that he could not attend the hearing any more for medical reasons and that he wanted the tribunal to carry on with the hearing and complete it in his absence.  He sent a medical certificate to the tribunal.
6. [6]
   In the light of this I decided to treat the respondent’s remaining evidence as ‘read’ except for one witness Mr Collins who was called, and the hearing ended on day 2.
7. [7]
   Mr Ali was given an opportunity to make final written submissions.  He did so, and the respondent filed submissions in reply.
8. [8]
   At the hearing, the respondent was also prepared to deal with another complaint – that Mr Ali had been given non-Halal food at Woodford Correctional Centre.  In reasons given for refusing a strike out application on 14 March 2019, I opined that this complaint was not being made to the tribunal, because it did not appear in Mr Ali’s contentions or in any other such material before the tribunal, although it did appear in his original complaint to the Commission.^[1]  On day 1 of the hearing Mr Ali confirmed that he was not making this complaint in the tribunal.

Special discrimination provisions applying to prisoners

9. [9]
   There are special provisions in the Corrective Services Act 2006 (Qld) which apply to contraventions of the ADA alleged to have occurred while the complainant is detained in a corrective services facility.
10. [10]
    Before a complaint can be made to the Queensland Human Rights Commission, a written complaint must be made to the chief executive of the correctional facility, and then in certain circumstances to an official visitor.^[2]  It is not suggested before the tribunal that such steps have not been taken by Mr Ali.
11. [11]
    In a direct discrimination complaint, an additional defence of reasonableness is available to a respondent.^[3]
12. [12]
    In an indirect discrimination complaint the tribunal is obliged to consider relevant submissions made about whether the term imposed is reasonable.^[4]  These concern questions of security and good order, the cost, administrative and operational burden and disruption of imposing an alternative term, budget and resources restraints, whether the imposition of the term adequately meets the needs of the offender even if an alternative term would better do so, an offender’s dignity, unfair prejudice to other offenders and any other relevant matter.
13. [13]
    Finally and of importance in this complaint, the tribunal may make a compensation order only it finds that the contravention happened because of an act or omission done or made in bad faith and where the tribunal considers that no non-compensatory order effectively redresses the offender for the contravention.^[5]

Grill issue

14. [14]
    There are three periods over which it is necessary to consider whether there was discrimination, because the tests need to be applied to slightly different factual situations in each period.
15. [15]
    Period 1 is between 5 July 2016 and 23 August 2016.  The period starts when Mr Ali was transferred from the Wolston Correctional Centre to the P 3 unit at the Woodford Correctional Centre.  This was a secure protection unit.  The period ends when Mr Ali formally wrote to Mr Collins, the General Manager at Woodford, asking for a toaster or sandwich maker to be made available to him, and which could be locked away in an officer’s kitchen after use.
16. [16]
    Period 2 is between 23 August 2016 and 8 September 2016 when Mr Collins replied to Mr Ali’s request.
17. [17]
    Period 3 is between 8 September 2016 and 10 April 2017 when Mr Ali left Woodford Correctional Centre.
18. [18]
    In period 1, the following term was imposed on Mr Ali:

That if a prisoner in the unit wished to use the grill at breakfast time it would have to be the grill shared with other prisoners.

19. [19]
    The grill was a front loading electric one, about 65 to 70 cm wide, capable in total of taking 10 to 12 pieces of bread on a wire rack if it were to be used for making toast.  The rack could be slid in and out, enabling food to be placed on the rack and removed after it was cooked.  The rack could also be removed from the grill altogether, but the grill itself was fixed to the bench in the kitchen for security reasons. 
20. [20]
    Mr Ali wanted to use the grill to make toast or a toasted sandwich at breakfast time.  He decided he could not do so because of the use of the grill by other prisoners.  Although prisoners would not use the grill to cook uncooked pork or ham, so there would not normally be any fatty residue on the grill, they would use it at breakfast time to re-heat or toast sandwiches or other meals containing cooked ham.  Prisoners would not necessarily be provided with these meals at breakfast time but would have saved them from previous meals or purchased them separately.  The odour from this could contaminate Mr Ali’s toast.  To avoid this, it was open to Mr Ali to be first at the grill at breakfast time, but he would have had to be quick because there was much demand for the grill and often queues for it.  Alternatively he could wait for the odour to disperse, but that too would be difficult because of the extent of use of the grill.  In the light of the difficulties, he decided not to use the grill at all.
21. [21]
    In period 1, there is nothing to show that the prison staff were aware that Mr Ali had a problem with the grill.  Therefore, bearing in mind the availability of other food at breakfast time such as fresh bread, cereals, and condiments I am satisfied that it was reasonable to impose the term set out above in period 1.  This means there was no indirect discrimination in period 1. 
22. [22]
    Period 2 started on 23 August 2016 with a formal letter written by Mr Ali to the general manager Mr Collins setting out the difficulties using the grill for himself and a fellow inmate, and then stating:^[6]

Could you please provide us with a toaster or a sandwich maker that could be locked away in the officers kitchen after use.

23. [23]
    It could be said that period 2 starts slightly earlier when Mr Ali raised the grill issue with the unit officer.  There is a difference between Mr Ali and the unit officer about exactly what he was asking her to do at that time but it is unnecessary to resolve this.  The unit officer was unable to resolve the issue and advised Mr Ali to write a formal letter to the general manager.^[7]  I think it likely on the balance of probabilities that Mr Ali did that very soon afterwards, so for the purposes of the complaint it is right to regard period 2 as starting on 23 August 2016 when the letter was written.
24. [24]
    Period 2 ends with Mr Collins’ reply.  During period 2, Mr Ali’s request was being considered by Mr Collins.  He consulted with the Manager of the unit, with the Area Supervisors and Area Managers.  He asked the Manager of Food Services about it and was told that the current practice in other correctional centres in Queensland was that prisoners could clean the grill prior to use if they needed to.  Mr Collins discussed this suggestion with the Correctional Supervisor who discussed it with the staff in the unit. 
25. [25]
    It seems to me that the period of about two weeks over which Mr Collins considered the request and made enquires about it, was reasonable.  Hence it was reasonable to continue to impose the term over this time and there no indirect discrimination in period 2.
26. [26]
    Period 3 starts with Mr Collins’ reply.  He said:^[8]

I advise that Woodford Correctional Centre will not be supplying additional toasters in the units to accommodate religious needs and/or issues.  We will however provide the units with the necessary cleaning items and products that will enable you to thoroughly wash and clean the toaster grill to your acceptable standard prior to your using it.

27. [27]
    It is not suggested by Mr Ali that there was a different term imposed in period 3 that if he wanted to use the toaster he would need to clean it before use.  I think it is right that no such term was imposed in period 3, within the meaning of ‘impose’ in section 11 of the ADA.  Instead, it seems to me that the term that if a prisoner in the unit wished to use the grill at breakfast time it would have to be the grill shared with other prisoners was maintained in period 3, with the cleaning suggestion as an attempt to ameliorate the effect of the term.  In other words, the provision of cleaning materials and the invitation to use them was an attempt to enable Mr Ali to comply with the term. 
28. [28]
    That this is the correct approach, rather than treating the cleaning suggestion as a standalone term, is confirmed by recognising that prisoners without the attribute would not need to clean the toaster before use like Mr Ali and his fellow inmate.  So the need to clean did not apply to all prisoners, and this means that it would be impossible to identify any disparate effect of the term on Mr Ali because of the attribute.
29. [29]
    In this period therefore, the term remained the same – that if a prisoner in the unit wished to use the grill at breakfast time it would have to be the grill shared with other prisoners.
30. [30]
    From the evidence I have heard and read, I do not regard the cleaning suggestion as a practical solution for Mr Ali, despite much expressed belief to the contrary by the respondent’s witnesses.  The grill was popular with prisoners in the unit at breakfast time and there was often a queue of prisoners to use it.  I accept Mr Ali’s evidence that it would have been too dangerous for him to try to clean the grill in those circumstances, because it would have involved removing the rack and any food on it so it could be cleaned.
31. [31]
    Before turning to the question of reasonableness of the imposition of the term in period 3, I need to make findings about what happened at the end of the period.
32. [32]
    It seems that Mr Ali continued to press the grill issue because on 28 November 2016 an official visitor recommended a reconsideration of the issue.^[9]  Although the evidence about exactly what happened is unclear and contradictory, a different decision was made when the matter was reconsidered.  It was decided to have a separate toaster locked in an officer’s station in the unit for use by those prisoners who needed an uncontaminated toaster.  On the balance of probabilities this decision was made after Mr Collins returned from leave in discussions between Mr Collins, his deputy, and staff.  This solution was considered to deal with previous questions of security which had generally been held.^[10]
33. [33]
    By the time this decision was implemented, however, Mr Ali had moved away from the unit.
34. [34]
    On my reading of the submissions filed on behalf of the State of Queensland, it is not suggested that if the term in period 3 was not reasonable, the other ingredients required by section 11 are not satisfied.  Instead, if the term in period 3 was not reasonable, then it seems to be accepted that the other requirements of section 11(1) are satisfied, that is that the term is one with which (a) a person with the attribute does not or is not able to comply and (b) a higher proportion of people without the attribute comply or are able to comply.  I agree with this approach having regard to the purposive construction given to the words ‘able to comply’ in case law.^[11]  The outcome of the complaint of indirect discrimination in period 3 turns therefore on whether the term imposed in period 3 was reasonable.

Was the term imposed in period 3 reasonable?

35. [35]
    On the question of reasonableness of the term in period 3, I agree with the submissions made on behalf of the respondent about how this should be tested.  It is an objective test requiring a balance between the nature and extent of the discriminatory effect on the one hand against the reasons advanced in favour of the term on the other, here also with the additional considerations required by section 319H of the Corrective Services Act 2006 (Qld).  It has been said that the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience.^[12]
36. [36]
    On behalf of the respondent it is submitted that the cleaning suggestion, and the later solution to provide a toaster to be kept in the officer’s station were two different lawful solutions to Mr Ali’s complaint having regard to security concerns.^[13] 
37. [37]
    The two ‘solutions’ were however, quite different for the purposes of the tests for indirect discrimination in section 11.  During period 3, the term remained in place, but the cleaning suggestion was an attempt to ameliorate its effect.  At the end of period 3, the term was removed altogether.
38. [38]
    I would agree that it would be possible while the term remained, to find other, perhaps more acceptable, ways of ameliorating its effect.  The question in period 3 is not whether the most acceptable way was found, but whether the term as ameliorated, was reasonable.  As was said by Sackville J in Commonwealth Bank of Australia v Human Rights & Equal Opportunity Commission (1997) 80 FCR 78:^[14]

the question is not simply whether the alleged discriminator could have made a “better” or more informed decision.  The issue is that posed by the legislation, namely, whether the requirement is not reasonable having regard to the circumstances of the case

39. [39]
    The fact that a solution was later found which removed the term altogether, and the fact that the cleaning suggestion was not a practical solution for Mr Ali, tend to show that it was not reasonable for the term to be maintained in period 3.  I do not think it adequately met his needs.  Instead, in period 3, steps should have been put in place to obtain a separate toaster which would be locked in an officer’s station.  I take into account here the special considerations applying to prisoners and prisons in section 319H of the Corrective Services Act 2006 (Qld), and the need to find a solution which did not interfere with security and was not disproportionate in use of resources, or expense, and was not an excessive operational burden or too disruptive. 
40. [40]
    The fact that this solution was found just as Mr Ali was leaving the unit shows that it would have been a reasonable solution at the beginning of period 3, whereas the cleaning suggestion did not make the term reasonable at that time.
41. [41]
    The difference between period 3 and period 1 is that in period 3 (unlike in period 1) the officers of the respondent were aware that the lack of a separate toaster was a problem for Mr Ali.
42. [42]
    If find therefore that Mr Ali was indirectly discriminated against by the maintenance in period 3 of the term that if a prisoner in the unit wished to use the grill at breakfast time it would have to be the grill shared with other prisoners.

Direct discrimination complaint about the grill

43. [43]
    The alleged less favourable treatment of not being provided with a separate grill or toaster, stretching over all three periods, cannot be direct discrimination because it was not treatment that was different from that faced by a prisoner without the attribute.  Instead, all prisoners were treated the same way.  As explained by the Appeal Tribunal in Yu Ping Xi v WorkCover Queensland [2016] QCATA 134,^[15] the same treatment of those with and without the attribute cannot be direct discrimination. 
44. [44]
    This also means that the comparison required by section 10 shows that there was no direct discrimination.  The comparator would be a prisoner in the same or not materially different circumstances as Mr Ali but without his attribute.  Mr Ali was treated the same as such a comparator and not less favourably.  The only time it is possible to consider the result of same treatment as being less favourable for the purposes of direct discrimination is an impairment case where the person with the impairment requires special services or facilities.^[16]
45. [45]
    The complaint of direction discrimination in respect of the grill fails.

Remedy in the successful indirect discrimination complaint

46. [46]
    Turning to remedy, Mr Ali seeks compensation, but because of the terms of section 319I of the Corrective Services Act 2006 (Qld) I am restrained in the order which I can make.  Having heard from Mr Collins, I do not find, or infer, that he acted in bad faith when deciding in period 3 not to obtain a separate toaster which would be locked in an officer’s station or when he failed to find a non-discriminatory solution to the grill issue.  Although Mr Ali thinks that Mr Collins may have been conducting a vendetta against him, and held a personal grudge against him, because of an earlier case in which Mr Ali was successful,^[17] there is nothing showing that this is the case.  In fact the evidence tends the other way, in particular the efforts that Mr Collins made to consult with others about a solution to the grill issue, and his concerns about security if a separate toaster were to be provided, which I find were genuinely held.
47. [47]
    In the circumstances I cannot make a compensatory order, and since the contravention was eventually remedied, albeit later than it should have been, I decline to make any other order.  Apart from the declaration about the contravention of the ADA, my order is therefore ‘no further order under section 209 of the ADA or otherwise’.

Non-Halal food in hospital complaint

48. [48]
    The ‘hospital’ here is the Princess Alexandra Health Secure Unit.  At first sight, and as suggested in the respondent’s outline of submissions,^[18] there appear to be some issues in this complaint about whether the respondent is the correct legal entity to respond to the complaint, since the hospital is operated by the Metro South Hospital and Health Service, which is a statutory body corporate which can sue and be sued in its corporate name.^[19]  The Service represents the State (in the form of Queensland Health) in providing the public sector health services,^[20] and is controlled by the Metro South Hospital and Health Board.^[21] 
49. [49]
    I raised this issue with the respondent on day 1 of the hearing, and on day 2 of the hearing I was informed by Mr Murdoch on behalf of the respondent that the current respondent would not be arguing that the respondent was incorrect, and that the named respondent accepts responsibility should the complaint be proved.
50. [50]
    The real difficulty with this complaint however, is that although it is true that Mr Ali was being given non-Halal food whilst he was in hospital, the evidence shows that the food providers were not aware that this should not happen.  He was admitted to hospital with suspected pneumonia.  At an early stage he was assessed on two occasions by a dietician, and since there were concerns about weight loss and malnutrition, the issue of his diet and his consumption of food was continuously being assessed and recorded.  He was also constantly attended by nursing staff.  On no occasion did he inform anyone that he required Halal food until 24 July 2016 which was near the end of his stay, and then he was immediately placed on a Halal diet.^[22] 
51. [51]
    In addition to this, prior to meals he was given a menu and he could then have requested non-Halal food, which was an option on the menu.
52. [52]
    Although Mr Ali says that he was ‘sedated’ during his time in hospital, he is not using that word in the sense that it is normally used.^[23]  On my finding he was not sedated, and there was nothing in his mental or emotional condition that could explain why he did not inform the hospital staff earlier that he should only be given Halal food.

Indirect discrimination complaint re: food in hospital

53. [53]
    The term which was imposed on Mr Ali was that he be given, or offered, the same food as everyone else while in hospital.  To be a defence to a complaint under section 11, it is for the respondent to show that the term was reasonable.^[24] Although it is possible indirectly to discriminate against a person without knowing their attribute,^[25] it is clearly reasonable for the food providers in the hospital to impose this term.  That is because they did not have any reason not to give Mr Ali the same food as everyone else.

Direct discrimination complaint re: food in hospital

54. [54]
    From the outset the hospital staff were aware that Mr Ali was Muslim.  It is conceivable that requiring Halal food is a characteristic that a person with that attribute generally has.^[26]  The reason why the hospital staff did not put him on a Halal diet before 24 July 2016 was that he had never asked for this to happen.  Hence the correct hypothetical comparator is a patient who would normally be on a Halal diet, but had not informed the dietician or hospital staff about this, and who was not a Muslim.  It can be seen that the hypothetical comparator would also have been on a non-Halal diet and therefore would have been treated the same way as Mr Ali.
55. [55]
    The direct discrimination complaint therefore fails because there was no ‘less favourable treatment’ of a real or hypothetical person without the attribute.
56. [56]
    To put this another way, the alleged less favourable treatment of not being given Halal food cannot be direct discrimination because the same food was given to prisoners without the attribute.  For the reasons given above, when considered direct discrimination with respect to the complaint about the grill, the same treatment does not work in this type of complaint.
57. [57]
    The complaint about being given non-Halal food in hospital fails.

Costs

58. [58]
    In the submissions, the respondent has asked for an order for costs should the complaint be dismissed.  Since this is not what has happened, I shall take it that there is no current application for costs before the tribunal in this matter.