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Mizner v State of Queensland (Corrective Services) & anors[2024] QCAT 468

Mizner v State of Queensland (Corrective Services) & anors[2024] QCAT 468

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Mizner v State of Queensland (Corrective Services) & anors [2024] QCAT 468

PARTIES:

jason mizner

(applicant)

v

state of queensland (Corrective services)

(respondent)

joel smith

(second respondent)

APPLICATION NO/S:

ADL004-22

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

13 August 2024

HEARING DATES:

11, 12, 13, 14 April 2023 & 22 June 2023

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Colin Forrest

Senior Member Traves

ORDERS:

  1. The complaint made by the applicant and referred to the Tribunal on 24 December 2021 is dismissed.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – INDIRECT DISCRIMINATION – where applicant a prisoner at The Wolston Correctional Centre – where applicant has an ‘impairment’ due to mental health conditions including post-traumatic stress disorder – where applicant wants to be located in a single cell – where certain prisoners placed on a “Do not Double Up’ List – where applicant did not satisfy the relevant criteria – where applicant not placed on the ‘Do not Double Up’ List – whether in formulating and applying that criteria the first respondent and second respondent, the then Chief Superintendent and General Manager of the WCC, indirectly discriminated against the applicant on the grounds of impairment in the administration of State laws and programs – whether there has been a breach of the Human Rights Act 2019 (Qld).

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

Corrective Services Act 2006 (Qld), s 5A, s 18, s 150, s 319A, s 319B, s 319H

Human Rights Act 2019 (Qld), s 8, s 13, s 15, s 16, s 17, s 25, s 29, s 30, s 58, s 59

Attorney-General for the State of Queensland v Grant (No 2) [2022] QSC 252

Attorney-General v Taunoa [2006] 2 NZLR 457

Bell v iiNet Ltd [2017] QCAT 114

Castles v Secretary of the Department of Justice (2010) 28 VR 141

Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441

D v Persons Unknown; F v Persons Unknown [2021] EWHC 157

Innes v Electoral Commission of Queensland (No 2) [2020] QSC 293

Johnston v Carroll (Commissioner of the Queensland Police Service [2024] QSC 2

JM v QFG [2000] 1 Qd R 373

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

SQH v Scott [2022] QSC 16

Thompson v Minogue [2021] VSCA 358

APPEARANCES &

REPRESENTATION:

Applicant:

Ms E. Lewsey, counsel instructed by B. Smeed, Legal Aid Queensland

Respondent:

Mr C. Murdoch KC and Mr A.B. Fraser, counsel instructed by Crown Law

REASONS FOR DECISION

  1. [1]
    The Applicant is a 49 year old man currently serving a very lengthy sentence of imprisonment in a Queensland prison. He has been in prison in Queensland since January 2017 when he was returned to Australia from Thailand. In that country, he had spent almost eleven years in prison for similar offences to those for which he was imprisoned here, though the crimes for which he was imprisoned here were actually committed before he went to Thailand, many years before.  The Applicant is not eligible to apply for parole in Queensland until 2032. Of course, the prospects of the Applicant being granted parole at that time are currently very uncertain.
  2. [2]
    These proceedings are to determine whether the Applicant has been unlawfully, indirectly discriminated against by the First and Second Respondents, the State of Queensland and the person who was employed as the Chief Superintendent and General Manager of the Wolston Correctional Centre at the relevant time the Applicant claims to have been discriminated against. The Wolston Correctional Centre (“the WCC”) is the prison facility within which the Applicant has been incarcerated since late 2018. 
  3. [3]
    The Applicant asserts that he has been indirectly discriminated against on the grounds of impairment in the administration by the Respondents of certain State laws and programs in breach of provisions of the Anti-Discrimination Act 1991 (Qld) (“the ADA”). He also asserts that the Respondents have, by the same actions, actionably contravened provisions of the Human Rights Act 2019 (Qld) (“the HRA”).

An Introduction

  1. [4]
    The Corrective Services Act 2006 (Qld) (“the CSA”) sets up the legislative regime by which the State of Queensland may lawfully establish prisons. Of relevance, s. 150 of the CSA obliges the State of Queensland to ensure appropriate provision is made, “when establishing a new prison,” for a specific list of things that includes “facilities for prisoners who are experiencing psychological crises” and also “the accommodation and access requirements of … prisoners with disabilities”.[1] Notably though, there is no provision in the same statute that imposes an ongoing obligation on the State to maintain such appropriate provision in already established prisons. Relevantly, also contained within the CSA is the requirement that “whenever practicable, each prisoner in a corrective services facility must be provided with his or her own room.”[2] In these provisions of the CSA, it seems the current proceedings have their genesis.
  2. [5]
    The WCC is widely described as a “protection prison.” That is because it accommodates prisoners who for any of several reasons need for their own safety to be accommodated separately from the rest of the general prison population. The WCC is divided into a “secure” section and a “residential” section. It was constructed with six hundred cells across those two sections. Originally, on construction, as might be expected having regard to s 18 of the CSA, each cell separately accommodated one prisoner. However, accommodation need at the WCC grew rapidly and the First Respondent subsequently commenced a program of converting single cells into cells that could accommodate two prisoners. This was achieved simply by constructing double bunks in the cells where previously there had only been single beds. We do not know when this cell reconfiguration program commenced, but the evidence established that some shared cells were already in place when the Applicant was first transferred to the WCC. The evidence also established that as at March 2023, just before the hearing of this matter, there were eight hundred and seventy-one prisoners needing to be accommodated across the six hundred cells at the WCC. The Second Respondent, in his oral evidence, said that it is hoped this circumstance might be alleviated when a new prison currently under construction in south-east Queensland is complete and ready for occupation. Though, until any such certainty is obtained, at the WCC many of the prisoners will have to continue to share a cell with another prisoner. Relevantly, in the language of those associated with the WCC, at least, this is known as “doubling up.”
  3. [6]
    Whilst “doubling up” clearly offends that part of s 18 of the CSA that requires each prisoner to be provided with his own room, the State of Queensland, no doubt, in defence of the current circumstances at the WCC, relies on the caveat the Legislature wrote in to the section conditioning this requirement on the practicability of same.[3] If you have only six hundred cells in a prison that must accommodate more than that number of prisoners, and you do not have anywhere else to accommodate the excess prisoners, it could be said to be no longer practicable for each of the prisoners in that prison to have his own room. On this issue, the Second Respondent actually gave evidence that:-

...due to prison overcrowding in WCC, most prisoners are accommodated in shared accommodation due to operational needs to account for the security and good management of WCC and for the safe custody and welfare of all prisoners.[4]

That choice of words appears to be no co-incidence. We shall return to that and demonstrate this point further on in these reasons.

  1. [7]
    Of course, when it is not practicable to provide each prisoner with his own cell, it is then necessary to have a process by which decisions about cell allocation are made. According to the uncontroversial evidence, the WCC operates pursuant to the CSA and supporting policies and procedures that take the form of Custodial Operations Practice Directions (called “COPD’s”). To guide cell allocation decision making, there is a COPD titled ‘Prisoner Accommodation Management – Cell Allocation.’ In recent years, this particular COPD has had several iterations as circumstances have required it to be updated. The evidence supports a finding that at the WCC there are also some locally applied cell allocation decision-making criteria. It is in the application of these cell allocation criteria at the WCC that the Applicant asserts he has been discriminated against.
  2. [8]
    When he was first incarcerated in Queensland, the Applicant spent approximately twenty-two months accommodated at the Arthur Gorrie Correctional Centre. We shall also return to this subject, particularly the way in which he was accommodated there, later in these reasons. In late 2018, he was transferred to the Brisbane Correctional Centre where he was accommodated for a month before being transferred to the WCC where he has been accommodated ever since. Not long after he arrived at the WCC, the Applicant was assessed as suitable to be housed in the residential section which prison authorities describe as “less secure accommodation”.[5]  This was, it seems, because he was assessed as:-
  1. Requiring less stringent monitoring and lower levels of supervision to ensure appropriate behaviour;
  2. Capable of responsibly managing his own well-being;
  3. Positively engaged in his imprisonment and not involved in negative incidents or subject to breaches of discipline;
  4. Not considered a risk of escape.[6]

The Do Not Double Up List

  1. [9]
    On first arrival in the residential section at the WCC, the Applicant was accommodated in his own single occupancy cell. The Second Respondent’s unchallenged evidence about that was that the Applicant “was able to be placed in a single cell because there were a number of single cells surplus to the number of prisoners that were on the DNDU list”.[7]  The DNDU list, short for “Do Not Double Up” list,  is a list of prisoners at the WCC who are considered not suitable or eligible to be accommodated in shared cells and, so, are not to be required to move into a shared cell or to have another prisoner move in and share their cell with them.
  2. [10]
    It seems that the demand for accommodation in the residential section of the WCC continued to increase in the first half of 2020 and the reconfiguration of the cells into cells in which many of the prisoners were required to “double up” continued. At some point in time, it reached the unit block in which the Applicant was then accommodated in his own cell. The unit blocks, which we visited on a “view” at the end of the hearing, contain six cells around a communal area and kitchenette, and communal laundry and ablution facilities. Various arrangements were made whilst cells in the unit were being reconfigured. These included prisoners, including the Applicant at one time, being accommodated on mattresses on the floor in the communal area of the unit. When the reconfiguration was complete, prisoners were allocated back into cells. As can be readily understood, not every prisoner was happy with the idea of being required to “double up.” The Applicant was one of those. Indeed, he began making requests to be assessed as not suitable for “doubling up” and to be included on the DNDU list. It is in the process within which the decisions that were made not to put him on the DNDU list that the Applicant claims the Respondents indirectly discriminated against him.
  3. [11]
    What we are satisfied happened at the WCC after the cell reconfiguration process was put in train was that the prisoners were told that many of them would be required to “double up.” We are also satisfied that they were also told they could, if they wished, provide the name or names of other prisoners with whom they would be happy to share a cell. At the same time a list of prisoners who would not be required to “double up” was being maintained. That was the DNDU list. Whilst not being on the DNDU list did not mean a prisoner was assured of being required to “double up,” being included on the list meant you would not be required to. We are satisfied that from that time onwards, the process appears to have become one in which prisoners who did not immediately qualify for the DNDU list but who nevertheless did not wish to “double up” made request or application, in various permissible ways, to be assessed and considered for inclusion on the DNDU list. Through this process, the overcrowded accommodation demands at the WCC seem to have caused the cell allocation decision making at that facility, in practice, to move from one of decisions being made about who might be allocated to a shared cell to one of decisions being made as to who should not be required to share a cell. 
  4. [12]
    According to the evidence of the Second Respondent, the Prisoner Accommodation Management – Cell Allocation COPD sets out some considerations that may be taken into account to assess a prisoner’s suitability or otherwise to be accommodated in a shared cell, or, rather, whether they should be included on the DNDU list. They include, but are not limited to the following:-
  1. If the prisoner has been previously victimised within a corrective services facility;
  2. If the prisoner has previously perpetrated violence against other prisoners;
  3. The prisoner’s history of self-harm and/or suicide attempts;
  4. The prisoner’s offence and correctional history;
  5. The prisoner’s relationships and known associations;
  6. The prisoner’s religious and cultural background;
  7. Intelligence information;
  8. The prisoner’s known physical and/or mental health, medical issues, disability and/or cognitive impairment;
  9. Current warnings including escape risk, maximum security offender and sex offender flags;
  10. Individualised risk assessment for sexual offender placements;
  11. If the prisoner is identified as a prisoner of concern;
  12. If the prisoner is identified as Elevated Base Line Risk (ELBR);
  13. If the prisoner is transgender or identifies as LGTBITQA+:
  14. Any other significant issues of concerns; or
  15. If the prisoner is on remand.[8]
  1. [13]
    Almost all of these considerations appear to be matters that might be considered as factors mitigating against requiring a prisoner to “double up” as opposed to reasons why a prisoner should be required to “double up”.  So, it does seem that although s 18 of the CSA provides for a prisoner to be provided with his own cell “wherever practicable,” at the WCC, “practicability” has caused the process to become one of deciding whether a prisoner should for some reason be excluded from being required to share a cell with another prisoner.
  2. [14]
    There was a lot of evidence adduced in this matter about the cell allocation decision making process. Importantly though, as to the process, the Second Respondent said in his affidavit evidence that:-

Consideration of shared cell accommodations must be individually assessed and a case note must be entered in the Integrated Offender Management System (IOMA) that an assessment has been completed.[9]

  1. [15]
    Applied to the circumstances of the Applicant after he entered the residential section of the WCC, each time he made a request to be included on the DNDU list an individual assessment was undertaken and a case note was made in the IOMA. The evidence supports a finding that is what happened.
  2. [16]
    The evidence also supports a finding that despite the applicable COPD being updated several times over the relevant period, the particular considerations set out in [12] above have remained relatively unchanged, basically as set out therein. However, what the evidence also made abundantly clear was that at the WCC, at least, the most important considerations in respect of cell allocation decision making over the time that the Applicant was applying to go on the DNDU list were, in fact, as follows:-
  1. [excluded from publication by order of the Tribunal dated 29 October 2024 until further order];
  2. [excluded from publication by order of the Tribunal dated 29 October 2024 until further order];
  3. [excluded from publication by order of the Tribunal dated 29 October 2024 until further order].
  1. [17]
    Clearly, whilst the Applicant did not meet one of those three criteria, he was not going to be included on the DNDU for any of those reasons. However, the evidence establishes that at the WCC there were still other factors that could be considered in an assessment of a prisoner for inclusion on the DNDU list.[10] They were:-
  1. Whether the prisoner is on observations (being watched and monitored on a regular basis because of safety concerns);
  2. Whether the prisoner poses a risk to others;
  3. Whether the prisoner is on an Intensive Management Plan (IMP) or Maximum Security Unit (MSU) reintegration;
  4. Whether the prisoner has a psychotic disorder that has been confirmed by Prison Mental Health Service;
  5. Whether the prisoner is an Elevated Baseline Risk (ELBR) prisoner;
  6. Whether there has been information provided by the intelligence department that warrants the prisoner having their own cell;
  7. Whether a single cell has been requested by Queensland Health;
  8. Whether the prisoner is on a temporary placement; and
  9. Whether the prisoner is on a guardianship order.
  1. [18]
    Again, these considerations mostly appear to invite consideration of matters that would mitigate against requiring a prisoner to “double up,” that is, requiring a consideration of reasons why he should be included on the DNDU list and not required to share his cell, rather than considering reasons why he should share a cell. As already identified above, this is, of course, what the process unavoidably became due to the overcrowding that has been experienced at the WCC.
  2. [19]
    It is uncontroversial that the Applicant was assessed, at his request, many times during the relevant period. Many of those occurred whilst he was actually sharing a cell in double up arrangements. Each time, it was decided that he would not be included on the DNDU list. As we have already observed, these decisions not to put him on the DNDU list form the basis of his complaint of discrimination.
  3. [20]
    The Applicant asserts that by not including him on the DNDU list the Respondents have indirectly discriminated against him on the grounds of impairment. As already stated, he also asserts that in not including him on the DNDU list, the Respondents have also breached the HRA.

The Indirect Discrimination Claim

  1. [21]
    The ADA prohibits discrimination on the basis of attributes. One of those is the attribute of impairment.[11] “Discrimination on the basis of an attribute” is defined to include direct and indirect discrimination on the basis of:-
  1. a characteristic that a person with any of the attributes generally has; or
  2. a characteristic that a person is presumed to have, or to have had at any time, by the person discriminating; or
  3. an attribute that a person had, even if the person did not have it at the time of the discrimination.[12]
  1. [22]
    Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term:-
  1. With which a person with an attribute does not or is not able to comply; and
  2. With which a higher proportion of people without the attribute comply or are able to comply; and
  3. That is not reasonable.[13]
  1. [23]
    There was a lot of evidence adduced in this matter going to the issue of the Applicant’s impairment or impairments. In written submissions made after the conclusion of the hearing, the Respondents stated that they accepted “that the weight of the evidence supports a finding that the Applicant is a person with some form of a post-traumatic stress disorder which is an “impairment” for the purposes of the ADA.”[14]
  2. [24]
    In the Schedule to the ADA, “impairment” is defined quite broadly as:-
  1. the total or partial loss of the person’s bodily functions, including the loss of a part of the person’s body; or
  1. the malfunction, malformation or disfigurement of a part of the person’s body; or
  1. a condition or malfunction that results in the person learning more slowly than a person without the condition or malfunction; or
  1. a condition, illness or disease that impairs a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; or
  1. the presence in the body of organisms capable of causing illness or disease; or
  1. reliance on a guide, hearing or assistance dog, wheelchair or other remedial device;

whether or not arising from an illness, disease or injury or from a condition subsisting at birth, and includes an impairment that—

  1. presently exists; or
  1. previously existed but no longer exists.
  1. [25]
    Having regard to that definition and the evidence that was before us, we consider it appropriate for the concession referred to in [22] above to have been made by the Respondents. However, we find that not only does the evidence support a finding that the Applicant has some form of post-traumatic stress disorder, but it also supports findings that he has borderline personality disorder, comorbid bipolar personality disorder, some degree of autism spectrum disorder and some type of acquired brain injury (suffered in a motorcycle crash he was involved in as a young man). He also has some residual physical impairment arising from injuries he suffered to one of his feet in that same motorcycle crash, though the extent of that is unclear. His mental health impairments, we are satisfied, are attributable to an extraordinarily complex history of trauma experienced in his childhood, including much physical, sexual and emotional abuse, and in the many years that he was an inmate in the Thai prison system.
  2. [26]
    Accepting that the Applicant has impairments, the question for our determination then is whether or not the Respondents have imposed a term with which the Applicant does not or is not able to comply, with which a higher proportion of people without the same impairments comply or are able to comply and that is not reasonable.
  3. [27]
    The word “term” as used in s 11 of the ADA is expressly defined to include a “condition, requirement or practice, whether or not written.”[15] It is authoritatively accepted that these words should be construed broadly and beneficially, but that the “term,” “condition” or “requirement” that is said to have been imposed should be formulated with some precision.[16]
  4. [28]
    The Applicant’s case was presented on the basis that the Respondents imposed two terms[17]. The “first term,” it was initially submitted, was the combination of the COPD criteria that are set out in [12] above. However, that submission was quickly modified in the Applicant’s written submissions (as it was in the Applicant’s Further Amended Contentions) to refer to the more limited set of three criteria set out in [15] above.[18]  The “second term” said by the Applicant to have been imposed by the Respondents was described in those same written submissions as “the local criteria.”[19] We understand those to be the same three considerations set out in [15] above, along with the further considerations set out in [16] above. As we understand the Applicant’s position, these two terms were said to have been imposed simultaneously. For their part, the Respondents conceded that they imposed the terms as contended by the Applicant.[20]
  5. [29]
    Accordingly, expressing our understanding of the position apparently consensually reached, with some precision, we consider the Applicant asserts and the Respondents accept they have imposed terms, or set conditions, that from at least around the middle of 2020, as a prisoner accommodated in the Residential section of the WCC, you most probably would be required to “double up” and share a cell with another prisoner unless you were:-
  1. [excluded from publication by order of the Tribunal dated 29 October 2024 until further order];
  2. [excluded from publication by order of the Tribunal dated 29 October 2024 until further order]; 
  3. [excluded from publication by order of the Tribunal dated 29 October 2024 until further order];

If you failed to meet any of those criteria, you might still qualify for inclusion on the DNDU list, though not necessarily so, if you were:-

  1. a prisoner on observations; or 
  2. on an Intensive Management Plan (IMP) or Maximum Security Unit (MSU) reintegration; or
  3. a prisoner with a psychotic disorder that has been confirmed by Prison Mental Health Service; or
  4. a prisoner with an Elevated Baseline Risk (ELBR); or
  5. a prisoner about which there has been information provided by the intelligence department that warrants you having your own cell; or
  6. a prisoner for whom Queensland Health has made a request that you be accommodated in a single cell; or
  7. a prisoner on a temporary placement; or
  8. a prisoner on a guardianship order.
  1. [30]
    The evidence clearly established that the determination of whether a prisoner was included on the DNDU and did not have to share a cell was one involving a discretion on the part of the decision-maker, with very little guidance as to how the various considerations were to be weighed and taken into account. This means that if a prisoner met one or more of the criteria set out in (iv) – (xi) above, he might nevertheless still not be assessed as suitable for inclusion on the DNDU list. That would still be a matter for assessment on a case-by-case basis, with psychologists being centrally involved in the determination process, individually assessing prisoners and determining if they were suitable or unsuitable for being required to share a cell. It appears that it would be a case of assessing on a sliding scale of seriousness, the severity of the prisoner’s impairments and consequential need for single cell accommodation.
  2. [31]
    The next question for our determination then is whether these terms or conditions imposed are terms with which the Applicant “does not or is not able to comply.” We note that we have to consider that question as at the times that the Applicant was requesting to be included on the DNDU list.[21] That was from mid-2020 through until late August 2021 when he made his complaint to the Queensland Human Rights Commission that led to his application in this Tribunal.
  3. [32]
    As might be expected, the meaning of the phrase “does not or is not able to comply” has been authoritatively considered many times. For example, Davies JA (with whom Pincus and Thomas JJA agreed) in JM v QFG[22] said he would construe the words “does not…comply” as “referring to the possession of a precluding objective attribute such as race or age or height” and the words “is not able to comply” “to include an attribute of choice such as religion or political belief or trade union activity or lawful sexual activity which precludes a person while he or she maintains it.”[23] However, Sackville J in Australian Medical Council v Wilson[24] said the following about the words “does not comply”: -

It was submitted that the phrase “does not comply” refers to some immutable characteristic of the individual that prevents him or her ever complying with the relevant condition. I must confess that I find it difficult to see why the words …. should be given a restrictive gloss.   …….

More particularly, a restrictive construction runs counter to the fundamental objective [the statutory provision] seeks to achieve. The point of provisions attacking indirect discrimination is to prevent individuals from the effect of apparently neutral conditions or requirements, which in fact operate in a manner that discriminates against particular groups the members of which have characteristics in common (such as race or national origin). A particular individual within a group subjected to discriminatory practices often will have some chance of complying with the offending condition or requirement. The chances of compliance may depend on how the condition is administered, or on whether the individual is able to overcome the practical obstacles placed in his or her path by the invidious condition or requirement.[25] 

  1. [33]
    Worthy of particular reference also, is the judgment of the Full Court of the Federal Court of Australia in Hurst v State of Queensland.[26]  That case was an appeal from a first instance judgment in which the trial judge had found that the complainant could comply with the relevant requirement, term or condition because he accepted evidence that she could “cope” with the circumstances established by the condition imposed.  In upholding the appeal, the three Judges of the Full Court (in a joint judgment) said that his Honour, the first instance Judge, had been led to focus on the wrong issues and had failed to address the real issue which was whether, by reason of the requirement or condition that was being imposed, the complainant suffered serious disadvantage. Their Honours found that: -

In our view, it is sufficient to satisfy [the requirement that the person “is not able to comply”] that a disabled person will suffer serious disadvantage in complying with a requirement or condition of the relevant kind, irrespective of whether that person can “cope” with the requirement or condition. A disabled person’s inability to achieve his or her full potential, in educational terms, can amount to serious disadvantage.[27]

Is the Applicant “not able to comply” with the terms or conditions?

  1. [34]
    For the Applicant, it was submitted that the imposition of Term 1 upon him “means that:
  1. His psycho-social impairments and physical impairments do not meet the COPD criteria (unless and until his mental health deteriorates);
  2. He is deemed to be suitable for placement in shared accommodation and therefore could, at any time, be required to share a cell; and
  3. He was required to share a cell from 12 July 2020 until 28 September 2021.”[28]
  1. [35]
    We accept that submission is factually correct.
  2. [36]
    Submissions for the Applicant went on to assert that he is not “able to comply” with Term 1 “because:-
  1. the knowledge that he could, at any time, be required to share a cell causes him to experience significantly increased anxiety and exacerbates his pyscho-social impairments;
  2. being placed in shared cell accommodation causes him to suffer serious disadvantage in the form of:
  1. exacerbation of his psycho-social impairments and deterioration of his mental health; and
  2. placing him in a situation of potential conflict with his cell-mate due to his strict routine, extreme discomfort when in close proximity to others, and need to minimise noise and light disturbances, and
  1. in a shared cell, he is unable to access the top bunk without experiencing pain and a risk of falling because of his Physical Impairments.”[29]
  1. [37]
    For the Applicant, the exact same submissions as made in [34] and [36] above were made in respect of Term 2. For the Respondents, however, it was submitted that the Applicant was and is able to comply with the terms in that, relying on the relevant passage from the Hurst decision cited in [33] above, he does not and will not suffer “serious disadvantage” in complying with it.

Consideration of the Evidence as to whether the Applicant would suffer serious disadvantage

  1. [38]
    After considering the evidence, including the affidavit evidence and oral evidence of the Applicant under cross-examination, we are not persuaded that he is not able to comply with the terms. Most particularly, whilst the prospect of having to “double up” might trouble him and is not his preference, we are not persuaded that he will suffer serious disadvantage in being required to comply with the terms just like other prisoners in the WCC’s residential section are. 
  2. [39]
    For the Applicant, it was submitted that being placed in a shared cell causes him to suffer serious disadvantage as it exacerbates his psycho-social impairments and causes deterioration of his mental health. The written submissions filed for the Applicant point, amongst other evidence, to the Applicant’s evidence and the evidence of another prisoner who he was once doubled up with several years ago at the Arthur Gorrie Correctional Centre (“AGCC”) in support of this.
  3. [40]
    The Applicant gave a lot of written and oral evidence about his psychological state. His evidence included that he is hypersensitive to sleep disturbances and that, when sharing a cell, the normal behaviour of his cell-mate will frequently wake him up and that he can experience panic attacks and extreme anger. His evidence was that he can sometimes then have difficulty getting back to sleep and has experienced seizures. This evidence was generally corroborated by the evidence of the prisoner who had doubled up with the Applicant at the AGCC some years ago and who was not cross-examined on his evidence. That witness said he had witnessed reactions like those the Applicant claimed he experienced when doubling up when he shared with the Applicant for a couple of weeks in 2017-2018.
  4. [41]
    We observe that evidence related to the time when the Applicant was still on remand awaiting the finalisation of his charges here in Queensland and we also observe that the evidence established that the shared cells at the AGCC were smaller and more crowded than the shared cells at the WCC, having more facilities in the actual cell, such as a toilet and shower, than do the WCC cells. Significantly, we also observe, there was no such corroborative evidence from any of the other prisoners the Applicant has shared with since he has been accommodated in the WCC and the evidence is clear that he has doubled up and shared a cell with others between July 2020 and September, 2021.
  5. [42]
    That mid-2020 period is quite significant in the determination of this matter. As we have already noted, the conversion of single cells to double cells at WCC was continuing in earnest through the early part of 2020 into the middle of that year. Fairly regularly from mid-June, 2020, the Applicant began presenting to WCC counsellors and psychologists, raising his own concerns around his psychological well-being. WCC records reflect, as the written submissions for the Applicant point out, the Applicant presented to psychologists on 15 and 26 June, 10, 17, 23 and 30 July, and 6 August, 2020. The records of those meetings reflect that he was raising concerns about his anxiety levels related, he was recorded as reporting, to an incident in his workplace at WCC, but also around the coming introduction of the doubling up requirement. They also reflect that during these meetings he specifically started asking to be placed on the DNDU list. However, a consideration of the recorded observations of the psychologists and staff who saw and assessed the Applicant on these visits support findings that the Applicant was not presenting in a manner that was entirely consistent with what he was reporting. Critically, whilst he talked about sometimes experiencing suicidal thoughts, he is recorded as always denying that he was experiencing suicidal or deliberate self-harm thoughts at the time of reporting and assessment and always assuring the author of the record that he was confident that if he felt suicidal thoughts he would be able to “buzz up” – that is, communicate or call for help.
  6. [43]
    At around the same time, the Applicant was seen by a Psychiatric Registrar in the Prison Mental Health Service. Dr Kemp’s notes of 17 June, 2020 reflect much similar content to that which the counselling and psychology notes record. The notes record the Applicant reported increased stress and anxiety around workplace matters and fear of being required to double up. The doctor recorded his impression that the Applicant suffered from Borderline Personality Disorder and Complex PTSD “with recent increase in anxiety symptoms and mood instability in the context of psychosocial stressors (workplace stress, concern about being doubled up).” The doctor noted satisfaction that the Applicant was not presenting with acute risk to himself but observed there was potential for “future decompensation & return of impulsive behaviours (including self-harm/parasuicidal acts) if he feels his needs are being ignored.”
  7. [44]
    Of particular note and importance in our view, in his oral evidence before us, the Applicant repeatedly derided the suggestion that he was honestly reporting to the authors of the records we have referred to that he did not feel suicidal at the time, attributing the fact of not honestly reporting to them about that to an overwhelming dread of being placed in the Observation Unit at the WCC if he did. He referred to that unit as “the glass cube” and made it sound as if being in there under observation was a fate worse than the prospect of suicide or deliberately harming himself. Having ourselves visited the Observation Unit at the WCC on the view at the end of the hearing, whilst accepting that it was not the most salubrious of places, we observe that the unit nevertheless consisted of individual cells that were secure, safe and constantly monitored.
  8. [45]
    Furthermore, whilst some of the notes of the Applicant’s meetings with the prison psychologists record that the Applicant raised with them his concerns that loud noises and lights within his residential unit triggered flashbacks and that he was having trouble sleeping consistently through the night, these concerns were only first recorded as having been raised by the Applicant a few weeks after he requested to be placed on the DNDU list in July, 2020. That was around the time he was expecting that he might be required to double up. However, despite being assessed as not suitable, or meeting the necessary threshold requirements to be placed on the DNDU list, and actually being required to share a cell in a double up arrangement from soon thereafter (at least from as early as 12 July, 2020), the records from throughout that time do not reflect that the Applicant made any specific complaints about his cellmates, their behaviour, or the consequences of same for him. In fact, specific entries in prison records on 6 October, 7 December, 2020 and 14 January, 2021, record the outcome of regular checks by WCC staff with the Applicant about his doubling up arrangements and how he was coping.  None of those records record that the Applicant revealed to the authors of the records other than that he was doing alright in his shared cell regime during the times that he was doubling up, even when his cellmates changed. The records also reflect that the Applicant and his cell mate at the time the record was made were “aware that if any issues do arise that they must contact officers.” Officers also gave evidence, which we accept, that checks with prisoners in respect of their doubling up circumstances were done every two weeks. There is no record of the Applicant negatively reporting in respect of his doubling up during any of the time that he was doubled up. Records also reflect further meetings with psychologists where the Applicant continued to press to be included on the DNDU list such as on 10 and 17 November, 2020 but during which no significant change in the observations being made by the authors of the records as to the Applicant’s presenting state or his complaints were noted. 
  9. [46]
    In this matter, the Applicant relied heavily on a letter that was sent to the First Respondent on 28 October, 2020 by Dr Anthony Tie, a Consultant Psychiatrist who was working with the Prison Mental Health Service. The doctor wrote that he had been requested by the Applicant to write the letter, principally in support of his request to be included on the DNDU list. Dr Tie wrote simply that he “would support [the Applicant’s] request not to share a cell.” Dr Tie supported this by reference to the symptoms that the Applicant described to him of “persistent emotional hyperarousal, hypervigilance and intrusive recollections.” Dr Tie expressed the view that such symptoms were consistent with post traumatic disorder attributed to the Applicant’s time in the Thai prison system. The records reflect that Dr Tie first saw the Applicant on 16 September, 2020 and again on the date of the signing of the letter bearing the date of 28 October, 2020. He saw him again on 26 November, 2020, 25 January, 2021 and onwards into 2021. Dr Tie did not give evidence before us and his handwritten notes that are in evidence are almost impossible to read. One reference to the issue before us that can be read is recorded on 26 November, 2020 as “expressed frustration at not being placed on single cell register.” Another, on 17 August, 2021 appears to read “came in the nick of time... a lifeline… a single cell.” Without more, little can be discerned as to the basis for the Doctor’s written support for the Applicant’s desire to be included on the DNDU list.
  10. [47]
    Throughout the same time, WCC psychologists continued to rely on their own observations and assessments of the Applicant in assessing him as not needing to go on the DNDU list.
  11. [48]
    Later notes in the records in May, 2022 reflect that the Applicant was back in single cell accommodation within a residential unit but that this particular unit was being renovated to include double bunk cells. Another DNDU assessment was undertaken after prison authorities received communication from the Applicant’s lawyers requesting clarification about his suitability for inclusion on the DNDU list. Notes of 6 May, 2022 reflect that he was sleeping on the floor at that time due to the renovations and that although he reported current mental health issues, it was reported he was managing those and again had no “’at risk’ ideation, plan or intent.” It was recorded that he was still considered suitable for doubling up with “a suitable candidate” but that prior to any change in his accommodation circumstances, he be “engaged” and assessed again, “allowing support and change related intervention.”
  12. [49]
    The evidence also satisfied us, particularly after considering it in the light of our visit to a residential unit at the WCC, that there would be little difference in the impact of noise and light within the residential unit on the Applicant whether he was in a single cell or a double occupancy cell. This would be most particularly the case if he shared a cell with a cell mate who demonstrated understanding for him. In this respect, the evidence also satisfied us that selection of a suitable cell mate for a double up situation would be carefully considered with the Applicant having some say in it and that it would be likely that the Applicant could secure the bottom bunk in such circumstances, thus meeting his asserted need to avoid climbing to a top bunk. We are also satisfied, despite the Applicant’s evidence that he is not permitted to have earplugs, that he is able to secure the provision of earplugs from the WCC administration. The evidence given by the Respondents’ witnesses about this issue satisfied us that earplugs could and would be made available for him and that the Applicant’s assertions that he could not get them were not correct. Earplugs would certainly assist him in reducing noise disturbance from inside his residential unit and inside a shared cell and would not cause, in our view, serious disadvantage. They are something the Applicant could use to his advantage, if he wished, whether doubled up or residing in a single cell.
  13. [50]
    Notes of 20 May, 2022 do reflect some apparent deterioration in the Applicant’s appearance and presentation but at that time he was recorded as being housed in a single cell within the residential unit. Again though, he is recorded as denying any suicidal or deliberate self-harm ideation or intent and the author recorded that he did not note or detect any precursors for same during the interview. Notes of 6 June, 2022 reflect short-term heightened anxiety experienced by the Applicant when an incident occurred in his residential unit that day but that appears to have been quickly resolved without further complication. Notes of 18, 19 and 20 July, 2022 reflect increased attention being paid to the Applicant’s request to be placed on the DNDU list as a result of these proceedings commenced by the Applicant, but with each daily observation reflecting nothing of any greater significance in favour of him being put on the DNDU list. The notes of 20 July, 2022 reflect the author’s consideration that the Applicant “presented as preoccupied with discussing both his trauma, his reported diagnoses, and how this impacts him daily, alongside the extensive efforts he makes to reduce his potential for becoming affected by others.” All of these records reflect satisfaction of the authors that the Applicant was doing alright and did not require to be placed on the DNDU list.
  14. [51]
    As we have observed, after considering all of the evidence, not just the evidence of the Applicant himself, we are satisfied that the Applicant has not suffered and does not suffer any serious disadvantage in complying with the Respondents’ terms. Records demonstrate that he is frequently assessed and monitored, would be again before any proposed change in his circumstances, and if his impairments begin to cause him objectively observable difficulties of sufficient seriousness, particularly during any period of doubling up, we are satisfied that he could legitimately expect to be included on the DNDU list.  So, in short, we are satisfied that the Applicant has not established that he is not able to comply with the terms imposed by the Respondent as required to establish his case.
  15. [52]
    Although we are satisfied that the Applicant is able to comply with the Respondents’ terms, it is perhaps necessary, in the event that we might be wrong about this, to go on and say that we accept that a higher proportion of prisoners not suffering from impairments like those ascribed to the Applicant would themselves be able to comply. It is also perhaps necessary for us to go on and consider whether the terms the Applicant complains of were reasonable or not.
  16. [53]
    When considering the question of reasonableness in this context, the Respondents have the onus of proving, on the balance of probabilities, that the term complained of was reasonable.[30] Section 11(2) of the ADA also provides that:
  1. Whether a term is reasonable depends on all the relevant circumstances of the case, including for example:-
  1. the consequences of failure to comply with the term; and
  1. the cost of alternative terms; and
  1. the financial circumstances of the person who imposes, or proposes to impose, the term.
  1. [54]
    Each Respondent is also a protected defendant for the purpose of s 319A of the CSA. This gives them the benefit of the additional protection of s 319H in respect of the claim of indirect discrimination. That section falls within Part 12A of the CSA. Section 319B explains the purpose of Part 12A and how the purpose is to be achieved. Section 319B(1) provides:
  1. The purpose of this part is to maintain a balance between-
  1. The financial and other constraints to which protected defendants are subject in their treatment of offenders; and
  2. The need to continue to respect offenders’ dignity.
  1. [55]
    Section 319H of the CSA provides:-
  1. This section applies if a protected defendant imposes, or proposes to impose, a term—
  1. with which an offender with an attribute does not or is not able to comply; and
  1. with which a higher proportion of offenders without the attribute comply or are able to comply.
  1. In considering whether for the Anti-Discrimination Act, section 11 (1) (c) the term is reasonable, the tribunal must consider any relevant submissions made about any of the following—
  1. the security and good order of any corrective services facility in which the offender was detained when the protected defendant imposed, or proposed to impose, the term;
  1. the cost to the protected defendant of imposing an alternative term;
  1. the administrative and operational burden that imposing an alternative term might place on the protected defendant;
  1. the disruption to the protected defendant that imposing an alternative term might cause;
  1. the budget constraints of the protected defendant;
  1. the resources constraints of the protected defendant;
  1. whether the imposing of, or proposal to impose, the term adequately meets the needs of the offender, notwithstanding the availability of an alternative term that more ideally meets the needs of the offender;
  1. the need to respect offenders’ dignity;
  1. whether the imposing of, or proposal to impose, the term unfairly prejudices other offenders;
  1. any other matter the tribunal considers relevant.
  1. In this section—

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

  1. [56]
    It is, no doubt, the wording of this section that explains the choice of language used by the Second Respondent in his evidence that we cited in [6] above. The Respondents assert that the security and good order of the WCC, given the overcrowding that has existed there over the relevant time, has required the imposition of the terms the Applicant complains of. Despite the wording of s 18 of the CSA, we accept it is clear that if more prisoners are to be housed in a correctional facility than there are single cells, absent having another facility being ready to accommodate the overflow, reconfiguration of cell space to house more prisoners in the existing facility is necessary. Though not meeting the ideal, requiring prisoners to double up is one means of achieving that. That brings with it a need for determining which prisoners should be required to share cells and which prisoners should not. Some form of criteria or ‘term’ for doing so consistently and fairly whilst maintaining good order and security is plainly necessary.
  2. [57]
    Though we can speculate on matters such as the cost of building a new prison or even new residential facilities within the WCC, no evidence about that was adduced in this matter. No evidence was adduced as to the budget and resources constraints of the Respondents. Additionally, there was no evidence adduced going to the cost to the Respondents of imposing alternative terms to the ones complained of by the Applicant. Similarly, there was no evidence adduced as to the administrative and operational burden that imposing an alternative term might place on the Respondents, nor as to the disruption to the Respondents that imposing an alternative term might cause. That does not prevent us from determining that the Respondents’ imposition of the terms was reasonable.
  3. [58]
    We have already determined that the Applicant’s needs are adequately met with the imposition of the terms and that he does not suffer serious disadvantage as a result of their imposition, such that he can comply. Simply making an exception for him because of his preference or because he has some impairments that he says make it harder for him to share a cell might be an easy solution to his complaint. Changing the terms so that prisoners who have been diagnosed with any form of mental impairment, regardless of its practical effect on them, might meet its requirements, could be another. Those courses might more ideally meet the Applicant’s preferences and stated needs, but adequacy is the measure prescribed here for meeting the reasonableness requirement and we consider the Applicant’s needs are adequately met by the system that has been created by the terms imposed.
  4. [59]
    We are also satisfied that the Applicant’s dignity is appropriately respected by the imposition of the terms and we are not persuaded that imposing the terms unfairly prejudices other offenders. We also observe that the Applicant was accommodated in a double up arrangement from July 2020 to September 2021 and was treated and assessed appropriately throughout that time without, as we have already found, suffering serious disadvantage.
  5. [60]
    Finally, on this point of reasonableness, the written submissions filed by the Respondents, both in their original form and their closing form, included a number of submissions which, after having regard to all of the evidence, we accept and which, along with the matters we have already discussed, also help persuade us that the terms imposed by the Respondents were reasonable in all the circumstances. They included the following;-
  1. decisions about the allocation of accommodation are made in accordance with the COPD and established local criteria which are modified from time to time to meet the demands of prison overcrowding;
  2. [excluded from publication by order of the Tribunal dated 29 October 2024 until further order];
  3. in making decisions relating to accommodating prisoners, the Respondents must prioritise those who, because of the considerations outlined immediately above, are most at risk or would be a risk to the health and safety of others, or the security and good order of the correctional facility, if accommodated in a doubled-up cell;
  4. the decision-making process relating to cell allocation is further complicated by the aging prison population, which brings added vulnerabilities that need to be considered. In many cases, the Respondents are obliged to care for aging prisoners whose needs would likely be best met by an aged care facility;
  5. allocating prisoners to accommodation is a complex and multifaceted decision-making process in which the Respondents must have regard to numerous factors designed to achieve the best outcomes for each prisoner’s health, safety and wellbeing, noting that the prison population is not stagnate and that the needs of prisoners can change quickly;
  6. allocations to double up cells are carefully monitored, and reviewed on request for allocation to the DNDU list;
  7. prisoners in double up cells have access to the assistance and support of psychologists and counsellors employed by the First Respondent, if required, before and during any double up arrangement;
  8. the Applicant was also given the option to nominate another prisoner with whom he might be prepared to share a cell with, a factor which could significantly impact the Applicant’s experience in a double up situation;
  9. many of the things that the Applicant identified as ‘triggers’ for adverse mental health reactions he said he experienced or would experience were things that he would encounter in the prison environment generally, even, more particularly, within his own residential unit block, whether he was in a double up cell or a single cell; and
  10. not being on the DNDU list does not mean a prisoner will necessarily be allocated to a double up arrangement.
  1. [61]
    Accordingly, for these reasons, we determine that the Applicant has not been indirectly discriminated against by the Respondents through the imposition of the terms by which they decide which prisoners might have to share a cell at WCC and which ones do not. His application pursuant to the ADA will be dismissed.

Human Rights complaint

  1. [62]
    The Applicant complains of indirect discrimination under s 59 of the Human Rights Act 2019 (Qld) (HRA). The Applicant submits that the decision to place him in shared accommodation from about 12 July 2020 until 28 September 2021 (placement decision) and the assessment of the Applicant as ineligible to be placed on the DNDU List on various occasions (the assessment decisions)[31] were unlawful because they were made in a way:
    1. which was not compatible with human rights: ss 8, 15, 16, 17, 25, 29, 30 and s 58(1)(a) of the HRA); and
    2. that failed to give proper consideration to human rights relevant to the decisions within the meaning of s 58(1)(b) of the HRA.
  2. [63]
    While we have decided the act or decision of the Respondents was not unlawful discrimination within the meaning of the ADA, that does not preclude the Applicant seeking relief or remedy on the basis the Respondents’ act or decision was unlawful under the HRA.[32]
  3. [64]
    The parties agree that the Respondents are ‘public entities’ within the meaning of s 9 of the HRA and that they owe obligations under s 58(1) of the HRA.[33]
  4. [65]
    Under s 58 it is unlawful for a public entity to ‘act or make a decision in a way that is not compatible with human rights’ (the substantive limb) or, when making a decision, to ‘fail to give proper consideration to a human right’ (the procedural limb). An act or decision which is found to be unlawful under s 58(1) is not, merely because of that finding, invalid.[34]
  5. [66]
    The lawfulness of the decisions under the HRA is considered at the time when those decisions were made.[35]

Were the decisions compatible with human rights within the meaning of s 58(1)(a) of the HRA?

  1. [67]
    Section 8 provides that an act, decision or statutory provision is ‘compatible with human rights’ if the act, decision or provision:
    1. does not limit a human right; or
    2. limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with s 13.
  2. [68]
    A decision will limit a human right if it “places limitations or restrictions on, or interferes with, the human rights of a person”.[36] That necessarily involves considering whether the impact comes within the scope of the right. The scope is broadly construed by reference to the right’s purposes and underlying values.[37]
  3. [69]
    The factors to be considered in determining whether a limit on human rights is reasonable and justified are set out in s 13 which has been held to embody a ‘proportionality test’.[38]
  4. [70]
    Addressing whether a decision is compatible with human rights involves:
    1. identifying the human rights relevant to the facts;
    2. stating how the decision will limit the human rights; and
    3. deciding whether the limits are reasonable and justified by reference to the matters in s 13(2).[39]
  5. [71]
    The Applicant bears the onus of establishing that the decision imposes a limit on human rights. If established, the Respondents bear the onus of justifying the limit.[40]
  6. [72]
    The Applicant submitted that the following acts and/or decisions of the Respondents had limited his human rights to an incompatible extent and the limitations were not reasonable or demonstrably justifiable:
    1. the assessment of the Applicant as being suitable for shared cell accommodation and deciding to place him in a shared cell from about 12 July 2020 until 28 September 2021 (the placement decision); and
    2. the assessment of the Applicant as being ineligible for inclusion on the DNDU list on various dates from 1 January 2020 to the present (the assessments).

(together, referred to as ‘the decisions’)

Which rights are engaged and how were they limited?

  1. [73]
    The Applicant submits the decisions breached the following six human rights:
    1. Section 15: the right to recognition and equality before the law;
    2. Section 16: the right to life;
    3. Section 17: protection from torture and cruel, inhuman, or degrading treatment;
    4. Section 25: right to privacy and reputation;
    5. Section 29: right to liberty and security of person:
    6. Section 30: humane treatment when deprived of liberty.

Right to equality (s 15)

  1. [74]
    The Applicant contends the decisions contravene his right to recognition and equality before the law under s 15. Section 15(2) provides that every person has the right to enjoy the person’s human rights without discrimination and by ss (4) to the right to equal and effective protection against discrimination.
  2. [75]
    “Discrimination” is defined in the HRA dictionary to mean:

“discrimination”, in relation to a person, includes direct discrimination or indirect discrimination, within the meaning of the Anti-Discrimination Act 1991, on the basis of an attribute stated in section 7 of that Act.

  1. [76]
    The Applicant contends that the decisions of the Respondents have contravened his right to recognition and equality before the law under s 15, in particular:
    1. under ss (2) – because the decisions limit his ability to enjoy his human rights, namely under s 15(4), the right to life under s 16, the right to security of person under s 29, and the right to humane treatment when deprived of liberty under s 30;
    2. under ss (4) – because the decisions amount to indirect discrimination.
  2. [77]
    The Respondents submit they have not contravened s 15(2) because no contravention of the ADA has occurred. While there was no allegation of direct discrimination, the Respondents submit that there has not been less favourable treatment of the Applicant on account of his attribute of impairment. They submit that all prisoners are subject to the same COPD assessments and that the Applicant has not been treated differently because of any relevant attribute. Further, s 15(2) refers, the Respondents submit, to enjoyment of the person’s “human rights” without discrimination and no relevant human right has been the subject of any discrimination. Further, and on the same basis, there has been no contravention of s 15(4).
  3. [78]
    The definition of “discrimination” is non-exhaustive and is not limited to that covered by the ADA. We have found above that no indirect discrimination has occurred and we find there has not been any direct discrimination. Further, we do not accept that the decisions limit his ability to enjoy his human rights on a discriminatory basis. 
  4. [79]
    Accordingly, there is no breach of s 15(2) or s 15(4).

Right to life (s 16)

  1. [80]
    Section 16 provides the right of everyone to life and not to be arbitrarily deprived of life. The Explanatory Note to the HRA states the clause is modelled on article 6(1) of the International Covenant on Civil and Political Rights and reflects the positive obligation on States to protect the lives of individuals through, for example, positive measures to address other threats to life.[41]
  2. [81]
    The Applicant submits that in D v Persons Unknown; F v Persons Unknown [2021] EWHC 157, which concerned the right to life in Article 2 of the European Convention on Human Rights (“the ECHR”), the risk of self-harm and death by suicide was sufficient to engage Article 2 of the ECHR. The Applicant submits the evidence shows that when required to share a cell, there is a ‘high likelihood of his mental health deteriorating to the point of suicidality’. The Respondents submit the assertion is unsupported by the evidence. They say the Applicant shared a cell for some 12 months and the evidence is clear that over the course of this period, notwithstanding his claimed increase in anxiety, he was well able, particularly with assistance from QCS counsellors and psychologists, to manage any potential for suicidal ideations. The evidence in respect of the Applicant, the Respondents submit, is distinguishable from D v Persons Unknown, where the evidence established a ‘real and immediate risk of serious physical harm or death to the applicant (see D v Persons Unknown at [88] to [96]).
  3. [82]
    It does not, in our view, make a difference for the purpose of engaging the right whether the source of the real or immediate risk is from the individual himself or from other people.[42] We note the Applicant did not claim to be at risk in any way from other prisoners.
  4. [83]
    We are not satisfied, on the evidence before us, that there is a real and immediate risk of serious physical harm or death to the Applicant as a result of sharing a cell with another prisoner with whom he is compatible. The Applicant has shared a cell in the past few years with no reports of self-harm or corroborated reports of suicidal ideation. We have already referred to the evidence and our findings about his reporting to and assessment by counsellors and psychologists at the prison. He was not once assessed at such risk of self-harm or suicide that he needed to be placed in the observation unit. We accept that with the available assistance the Applicant can manage any suicidal ideation or deterioration in his mental health. We are satisfied that the Applicant has also, repeatedly, when undergoing interviews with mental health professionals at the prison, satisfied them that he is capable of applying appropriate mitigation strategies to reduce the effects of any anxiety or depression he may experience.
  5. [84]
    The evidence, in our view, did not reach the level at which the right to life was engaged.

Right to liberty and security of person (s 29)

  1. [85]
    Section 29(1) protects the right of each person to liberty and security.
  2. [86]
    Where s 29 is applied within a prison environment, it is construed ‘in light of s 30’ concerning the humane treatment of persons deprived of liberty.[43] Section 29 deals with the circumstances surrounding arrest or detention, requiring that it not be arbitrary.
  3. [87]
    Although the rights in ss 29 and 30 are not mutually exclusive and may overlap, where a person is already in custody, s 30 may be more apt.[44]
  4. [88]
    The Applicant relies on the same basis as the alleged breach of right to life. For the reasons above, we also reject the contention that s 29 has been contravened.

Right to privacy and reputation (s 25)

  1. [89]
    Section 25 protects a person’s ‘privacy, family, home or correspondence’ from arbitrary or unlawful interference.
  2. [90]
    The Applicant submits the decisions interfere with his right to privacy arbitrarily or unlawfully by placing the Applicant in conditions in his cell (which is the equivalent to his home) where:
    1. he is required to tolerate being in close proximity to another prisoner when sharing a cell;
    2. he is subjected to additional light and noise disturbances while trying to sleep; and
    3. this causes him to experience ongoing interferences with his physical and mental integrity.
  3. [91]
    The Respondents contend that, as there has been no contravention of the ADA, there is no basis to assert unlawfulness and further, that arbitrary interference with privacy is one which is capricious or has resulted from conduct which is unpredictable, or unjust or unreasonable in the sense of not being proportionate to the legitimate aim sought.[45] The Respondents submit that any interference is not, in that sense, arbitrary and must be viewed in the context of the Applicant being a prisoner where his ability to control and/or autonomy in his ‘home’ is necessarily limited.
  4. [92]
    We agree with the Respondents’ submissions. The interference as described by the Applicant was not arbitrary. It was dictated by the criteria and processes set out in the COPD, there were regular reviews, and counselling and support were available throughout the process. Even when sharing, the Applicant had a separate bunk, was free to come and go from the cell as he pleased and had access 24 hours a day to a common area and detached toileting and shower facilities. Further, even without sharing a cell, the Applicant would be subject to indiscriminate noise and light and would be housed in a Unit with around nine other prisoners.
  5. [93]
    We find the Applicant’s privacy and home have not been ‘interfered with’ by being required to share a cell, and less so merely by not being placed on the DNDU List.

Protection from torture and cruel, inhuman or degrading treatment (s 17(a)(b))

  1. [94]
    The distinction between categories s 17(a) and (b) has been said to lie in a difference in the intensity of the suffering inflicted, with ‘torture’ (s 17(a)) reflecting the special stigma attached to the deliberate inhuman treatment causing very serious and cruel suffering.[46]
  2. [95]
    We do not accept, nor was it pressed, that the Applicant has been subjected to ‘torture’.
  3. [96]
    There is no definition of what constitutes ‘cruel, inhuman or degrading treatment or punishment’ in the HRA.  In R (Limbuela) v Home Secretary[47] it was said that ‘treatment is inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being’. There the exercise of a power under immigration legislation to withdraw support for an asylum seeker was held to constitute inhuman or degrading treatment because it resulted in the person being deprived of shelter, food and the basic necessities of life.
  4. [97]
    It has been held (in relation to the equivalent art 3 of the ICCPR) that to show a breach, a person must show more than merely deprivation of a benefit or subjection to ill-treatment. Instead, it is necessary to establish a minimum level of severity, which will depend on an assessment of all the circumstances of the case, and include the nature and context of treatment, the manner and method of execution, the duration of treatment, and its physical and mental effects on the victim.[48]
  5. [98]
    In Owen-D’Arcy v Chief Executive, Queensland Corrective Services[49] Martin J adopted the following as a ‘correct summation of the general factors which should be taken into account when considering s 17(b)’:
  1. the scope of the right contained in s 17(b) is conditioned by a minimum standard or threshold of severity or intensity that can manifest in bodily injury or physical or mental suffering,
  2. the combination of the adjectives – cruel, inhuman or degrading – define the prohibited treatment or punishment,
  3. the assessment of the minimum threshold is relative, and it depends on all the circumstances of the case, including the duration of the treatment, its physical or mental effects, and the sex, age and state of health of the alleged victim,
  4. most cases of breach will involve on the part of the decision-maker deliberate imposition of severe suffering or intentional conduct to harm, humiliate or debase a victim, and
  5. the purpose of the decision-maker’s conduct will, at the very least, be a factor to be taken into account, though the absence of such a purpose does not conclusively rule out a violation of the right.
  1. [99]
    The Applicant submits that the decisions contravene s 17(b) because the Respondents:
    1. have actual and/or constructive knowledge of his psycho-social impairments;
    2. notwithstanding that, insist upon placing him in shared cell accommodation which is known to trigger his psycho-social impairments and place him at risk of serious deterioration of his mental health to the point where he is at risk of self-harm and suicidality; and
    3. given that he faces the prospect of at least a further nine (9) years in custody, the significant duration of the treatment is a major factor that contributes to the severity of this impact.
  2. [100]
    For the reasons we have given above, we do not agree that the Applicant has established that the decisions will place him at risk of serious deterioration of his mental health such as to result in bodily injury or physical or mental suffering. The evidence does not demonstrate that it would deteriorate to the extent asserted if he was placed in a shared cell or that the placement would necessarily be the cause of the deterioration. Further, we note that there was evidence to the effect, that on each of the two extended periods when the Applicant was required to share a cell, the Applicant and his ‘cellmate’ reported having ‘no difficulties’ on the occasions the shared cell arrangement was reviewed.[50] The Applicant had also slept on the common area floor of his unit while it was being renovated with no adverse consequences;[51] and had also shared a cell for periods of time at the Arthur Gorrie Correctional Centre, again without serious incident.[52]
  3. [101]
    We also note that, although the Applicant is facing a lengthy term of imprisonment, the status of the DNDU List is under periodic review and it is not necessarily the case that he would be placed in a shared cell for the remainder of his term of imprisonment. It is also possible that the criteria for the DNDU List may change.
  4. [102]
    The onus has not been satisfied.

Right to humane treatment when deprived of liberty (s 30)

  1. [103]
    Section 30(1) provides that persons deprived of liberty ‘must be treated with humanity and with respect for the inherent dignity of the person.’
  2. [104]
    The Explanatory Notes to the HRA state, in relation to this right:

The underlying principle is that a person’s rights should only be curtailed to the extent necessary due to the confinement, reflecting that the punishment is intended to be limited to the deprivation of liberty.[53]

  1. [105]
    Section 30(1) complements the prohibition in s 17(b) on being treated in a cruel, inhuman or degrading way.[54] It has been observed, in relation to comparable provisions in other HR legislation, that the equivalent of s 30(1) “[protects] a person deprived of liberty from conduct that lacks humanity but falls short of being cruel; which demeans the person, but not to an extent which is degrading; or which is clearly excessive in the circumstances, but not grossly so”.[55]
  2. [106]
    The starting point for s 30(1) is that prisoners should “not be subjected to hardship or constraint other than that resulting from the deprivation of liberty”.[56] The deprivation of liberty does, however, mean that the “rights and freedoms which are enjoyed by other citizens will necessarily be ‘curtailed’, ‘attenuated’ and ‘qualified’ by reason of the deprivation of liberty”.[57]
  3. [107]
    The right may extend beyond specific incidents of ill treatment to also encompass the general conditions of detention.[58]
  4. [108]
    Section 18 of the CSA provides that:

Whenever practicable, each prisoner in a corrective services facility must be provided with is or her own room.

  1. [109]
    However, s 5A of the CSA is qualified by s 18 which relevantly provides:
  1. 5A
    Relationship with Human Rights Act 2019
  1. (1)
    This section applies to the chief executive’s or a corrective services officer’s consideration of—
  1. (a)
    …; or
  1. (b)
    the Human Rights Act 2019, section 30 in relation to managing a prisoner in a corrective services facility where it is not practicable for the prisoner to be provided with the prisoner’s own room under section 18.
  1. (2)
    To remove any doubt, it is declared that the chief executive or officer does not contravene the Human Rights Act 2019, section 58(1) only because the chief executive’s or officer’s consideration takes into account—
  1. (a)
    the security and good management of corrective services facilities; or
  1. (b)
    the safe custody and welfare of all prisoners.
  1. [110]
    The Second Respondent, in his then role as Chief Superintendent, was responsible for the security and management of WCC and for the safe custody and welfare of all prisoners housed at the centre. The Second Respondent gave evidence that as part of these safety and security considerations, it is important that informed decisions are made regarding the appropriate allocation of cell accommodation for each individual prisoner.[59] Further, that due to overcrowding, most prisoners are accommodated in shared accommodation due to operational needs to account for the security and good management of WCC and for the safe custody and welfare of all prisoners.[60]
  2. [111]
    As at 30 May 2022, WCC had 1049 beds across 600 Cells, however there were 871 complex protection prisoners that had to be appropriately and safely accommodated across those cells. The Second Respondent gave evidence that due to prison overcrowding and the subsequent scarcity of single occupancy cells, it was not practical to give every prisoner his own cell. Consequently, the WCC had been required to develop strict criteria to determine whether a prisoner is eligible to be placed on the DNDU List. Such criteria are 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.[61] Prisoners are only placed on the DNDU List under exceptional circumstances. In effect, they are prisoners who would be a risk to others or to themselves if placed in a shared cell.
  3. [112]
    We accept that overcrowding means it is not practical to accommodate each prisoner in a single cell; that this has required the formulation of criteria to assist in the objective and fair determination of which prisoners are to be placed on the DNDU List; and that  the Applicant  had not provided sufficient information to indicate he satisfied the criteria at the time the placement decisions were made or when he was considered ineligible for the DNDU List. We also accept that the decisions about accommodation at WCC were made for the security and good management of corrective services facilities and for the safe custody and welfare of all prisoners.
  4. [113]
    For completeness, and in the event we were wrong to conclude that the decisions were made for the security and good management of the prison or prisoner safety, there was no contravention of the right to be treated humanely. In our view the making of the placement decisions and the DNDU assessment decisions need to be viewed in the context of all the circumstances relevant at the time those decisions were made, relevantly:
    1. WCC is divided into two types of accommodation, residential and secure. The inmates housed at residential (as opposed to secure) have been assessed to be suitable for accommodation requiring a lower level of supervision. As we have observed earlier in these reasons, a prisoner, such as the Applicant, is considered suitable for residential accommodation where they:
  1. require less stringent monitoring and lower levels of supervision to ensure appropriate behaviour;
  2. are capable of responsibly managing their own well-being;
  3. are positively engaged in their imprisonment and not involved in negative incidents or subject to breaches of discipline; and
  4. are not considered a risk of escape.
    1. The cells in residential are approximately 2.2m by 2.7m and generally contain a bed (or bunk bed), table, chair, television and storage for the prisoner’s personal belongings.
    2. The cells have good natural light; views of green outdoor space; are well ventilated; clean and hygienic.
    3. The cells each form one component of a larger Unit Block and are positioned around a large common area. The prisoners have free access to the common area which operates as a dayroom and is, in a sense, part of the cells and is used a bit like a family room/kitchen area. The prisoners in the Unit Block have access to the communal area twenty-four hours a day.
    4. The Unit Block contains a communal laundry and separate communal toilets and showers. The individual cells do not have toilets or showers inside them.
    5. The prisoners schedule while in residential shows they have freedom to move around the cell block and prison facilities during the day and are not confined to their individual cells. The prisoners are each provided a key to their cell. As stated by  the Second Respondent in his affidavit:

During the day, prisoners in residential have access to approximately 11 hours (10.85 hours) of communal yard time with the other prisoners from other residential cell blocks. During this time, they are able to access their own cells and the communal areas of their cell block along with locations like open gardens, officers’ station, the library, and exercise areas including a gymnasium and a tennis court.[62]

  1. The doors to the cells contain a window so that the room can be viewed from the outside, and there is no soundproofing in the cells or in the Unit Block.
  2. The Applicant could negotiate to sleep on the bottom bunk were he to share a cell which would expose him to less light disturbance should his cellmate wish to read.
  3. The prisoners can request earplugs which would mitigate any noise disturbance.
  4. The double up arrangements are reviewed fortnightly.
  5. Those asked to share a cell can nominate a fellow inmate they would prefer to share with.
  6. If a prisoner’s mental health condition deteriorates in prison, there are measures and processes in place for reviewing the accommodation arrangements and, if required, placing that person on a ‘safety order’ where they can be appropriately observed.
  7. There was medical evidence about PTSD to the effect that although reminders (or triggers) should be reduced if possible, if all reminders cannot be avoided, then treatment is around exposure to aspects of the original trauma and the development of skills to manage increases in anxiety or distress.[63]
  8. The Applicant had appropriate grounding techniques which he was able to employ if he did experience an increase in his symptoms associated with his PTSD or other mental health conditions.
  1. [114]
    Of the factors above, we consider the general prison environment, in particular that the prisoners are not kept in their cells during the day but have access to a common area in their freestanding Unit block and to a very large outdoor area, to be of particular importance. The Applicant also had access to other areas, such as the library that he could retreat to if he wanted quiet time to study or read. It is also possible that he could retreat to his cell at times when his cellmate was elsewhere. 
  2. [115]
    Also important, is that the system of placing prisoners with a cell mate had ameliorating features, in particular, that prisoners had the option of nominating a preferred cellmate; there was regular review of double-up arrangements, access to psychologists and counsellors if required, and the assessment process that takes place in considering whether to place a prisoner on the DNDU List is thorough and fluid, that is, a prisoner is not precluded from re-applying if previously unsuccessful.
  3. [116]
    We are not satisfied that the decisions amount to treatment other than the hardship or constraint that results from being incarcerated in a prison where some are required to share a cell. While we accept that most, if not all, prisoners would aspire to be placed in a single cell, it is not to treat a person inhumanely to require them to share a cell in the circumstances we have outlined above. This equally applies, in our view, to the Applicant, who has not demonstrated he will suffer any prejudice were he to share a cell that would amount to treating him inhumanely.
  4. [117]
    The right to be treated humanely does not equate to a freestanding right to be accommodated in a single cell, even in taking into account the Applicant’s circumstances. Cases where a comparable right has been limited are far more severe than the treatment currently under challenge in that they commonly involved actual bodily injury or the infliction of intense physical or mental suffering.
  5. [118]
    The placement decisions made and the refusals to place the Applicant on the DNDU List does not, in our view, mean the Applicant was treated inhumanely or in a way that failed to respect his inherent dignity.
  6. [119]
    The onus has not been satisfied.

Were any limitations justified in accordance with s 8(b) and s 13?

  1. [120]
    We have set out above why, in our view, there have been no breaches of the HRA. We regard the contentions in respect of ss 15,16,17, 25 and 29 as particularly weak. We regard the contentions in respect of s 30 as arguable. We propose, in those circumstances, and notwithstanding our findings, to consider whether any limitation on that right is justified.
  2. [121]
    Section 58(1)(a) provides that it is unlawful for a public entity to act or make a decision in a way that is not compatible with human rights. The expression “compatible with human rights” is defined in s 8. Relevantly, s 8(b) provides that an act or decision is compatible with human rights if it limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with s 13. By s 13(1) ‘a human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom’. In deciding whether a limit is reasonable and justifiable the factors in s 13(2) may be relevant.
  3. [122]
    The Respondents bear the onus of establishing that any limitation was justified. The standard of proof has been held to be high and to require ‘a degree of probability commensurate with the occasion’.[64]
  4. [123]
    In respect of the factors in s 13(2) we find as follows:

Nature of the human right

  1. [124]
    The right encapsulated by s 30, is the right of a person deprived of liberty to be treated with humanity and with respect for the inherent dignity of the person.  The starting point for analysing the scope of this right has been held to be that persons detained must not be subject to hardship or constraint other than that which results from the deprivation of their liberty.[65]

The nature of the purpose of the limitation

  1. [125]
    The nature of the limitation is to require prisoners to share a cell with another prisoner unless a prisoner satisfies certain criteria, in which case he will be given a single occupancy cell. The purpose of the limitation is to enable the secure containment of prisoners at certain times within the residential area of WCC given the logistical challenges caused by the number of prisoners exceeding the number of cells. We do not accept the submissions of the Applicant that the purpose is ‘at its most abstract, to maintain prison order’, that is, that there is no necessity to have the applicant share a cell due to overcrowding. In this respect we accept the evidence of the Second Respondent  that some prisoners were required to share a cell and that, in the case of the Applicant, there was no reason to give him preferential treatment over the general prison population by guaranteeing he would not have to share a cell.

The relationship between the limitation and its purpose including whether the limitation helps to achieve the purpose.

  1. [126]
    There is, in our view, a rational connection between any limitation caused by not being guaranteed a single occupancy cell, and the purpose of safely accommodating prisoners in a prison environment where the number of prisoners exceeds the number of cells.

Whether there are less restrictive and reasonably available ways to achieve the purpose

  1. [127]
    There is, in the present circumstances, no less restrictive or reasonable way of achieving the purpose. We do not accept that making the criteria for the DNDU List sufficiently inclusive so that it included the Applicant, is a reasonably available way to achieve the purpose. The Respondents, in making decisions to accommodate prisoners, must prioritise those who are most at risk or would be a risk to the health and safety of others, or the security of the prison.

The importance of the purpose of the limitation

  1. [128]
    The purpose of the limitation is to enable prisoners to be safely housed in prison. We accept that this is important and necessary for the prison to be able to function effectively as a prison.

The importance of preserving the human right, taking into account the nature and extent of the limitation

  1. [129]
    The Applicant submits that the human right infringed is the Applicant’s personal integrity, leading to suffering mental harm. We do not accept that infringing the Applicant’s personal integrity by not placing him on the DNDU List will mean he will suffer mental harm. Further, taking into account the purpose of the limitation and the fact the nature and extent of the limitation is managed and, we accept, reasonable in all of the circumstances, the importance of the purpose of the limitation outweighs the importance of preserving the human right.

The balance between the matters above

  1. [130]
    On balance, even if we accepted an infringement of human rights, it is only minimal and, in any event, is outweighed by the need to house a greater number of prisoners than there are cells. Further, the criteria used to select prisoners for the DNDU List are reasonable in all the circumstances and there is no evidence to warrant giving the Applicant preferential treatment, beyond the established criteria. We also note that whether a person is placed on the DNDU List is continually monitored and, if a decision is made for a prisoner to share a cell, the choice of a cell partner is carefully managed.
  2. [131]
    In conclusion, were we to find human rights had been limited we would find that the limitations were justified for the reasons outlined above.

Did the Respondents consider human rights in their decision processes: s 58(1)(b)

  1. [132]
    By s 58(1)(b) it is unlawful for a public entity in making a decision, to fail to give proper consideration to a human right relevant to the decision. Sub-section 58(5) provides that, giving proper consideration includes, but is not limited to:
    1. identifying the human rights that may be affected by the decision; and
    2. considering whether the decision would be compatible with human rights.
  2. [133]
    ‘Proper consideration’ should be approached in a common sense, practical manner. It is not meant to involve a sophisticated legal exercise.[66] The approach required by s 58(5) has been held to require a decision-maker to:
  1. identify the human rights that may be affected by the decision and whether, and if so how, those rights will be interfered with by the decision;
  2. seriously turn his or her mind to the possible impact of the decision on a person’s human rights;
  3. identify the countervailing interests or obligations; and
  4. balance competing private and public interests as part of the exercise (which does not import into the procedural limb the requirements of s 13 of the HRA).[67]
  1. [134]
    There is no formula for the application of s 58(5) and whether ‘proper consideration’ of relevant human rights has occurred should not be over scrutinised by the courts.[68]
  2. [135]
    The applicant directed attention to the drafting of the DNDU criteria (both at COPD and local level); and, secondly, placement and assessment decisions which impacted the Applicant’s accommodation arrangements. 
  3. [136]
    The Applicant submits that apart from a general review and some criteria reflected in the forms (justifying the limits on human rights) each decision-maker simply applied the COPD criteria and the local criteria without in fact considering the relevant human rights, or the nature of the rights and the limits being placed on them, at all.
  4. [137]
    The Respondents submit that human rights were properly considered, both by the COPD and in conducting the DNDU Assessments. The Respondents submitted as follows:
    1. The COPD addresses human rights at sections 1 and 2, and as part of the shared cell accommodation considerations at 5.1, notes that a case note is to be entered in IOMS detailing, amongst other things, “how human rights were properly considered and balanced, including but not limited to cultural rights…”
    2. The Applicant was assessed a number of times to see whether he was eligible to be placed on the DNDU List. The assessments were undertaken at different times by different staff and no contravention of s 58(1)(b) had been established. 
  5. [138]
    The evidence relied upon in respect of the conduct of the assessments is as follows.
  6. [139]
    Ms Ciera Stafford gave evidence, in effect, that when conducting DNDU assessments, she would, amongst other things, have regard to the COPD and that she had received training in relation to human rights legislation that had come into force in January 2020 which did not change her assessments as she had “always been adhering to those rules”.
  7. [140]
    It was not put to Ms Stafford in cross-examination that she did not consider the Applicant’s human rights when undertaking her assessment of him.
  8. [141]
    On 6 May 2022, Ms Trudy Sheffield undertook a DNDU Assessment for the applicant, in relation to which we accept that:
    1. Ms Sheffield had received mandatory human rights training in around 2019/2020;
    2. Ms Sheffield had regard to the COPD when undertaking DNDU assessments;
    3. Generally a prisoner is not strictly assessed against the criteria listed in the assessment form, rather the form acts as a ‘kind of skeleton’ for guiding the assessment. The assessment involves examining the individual nuances of each individual and whether there are any compassionate grounds for a single cell placement; how doubling-up may affect their wellbeing, both physically and mentally and whether there are any other strategies that can be put in place to alleviate any concerns about being doubled-up.[69]
    4. as to what human rights considerations were made by her when applying the DNDU assessment criteria, her oral evidence was:

Always giving due consideration to the individual characteristics of the case, a thorough collateral check, ensuring that we’re going in and undertaking an informed assessment, considering the needs of the individual in front of you, allowing them to speak and be heard, and where possible, if the person who’s experiencing a level of distress or cannot be managed in Double Up accommodation, attempting to communicate with other staff to have them in single cell accommodation.[70]

  1. [142]
    It was not put to Ms Sheffield in cross-examination that she did not give consideration to the Applicant’s human rights when undertaking her assessment.
  2. [143]
    On 19 July 2022, Mr Andrew Connellan, Senior Psychologist undertook a DNDU Assessment of the Applicant in respect of which he gave evidence that:
    1. he was aware of human rights legislation having been implemented and would have received training conducted at the prison in relation to that;
    2. his usual practice was to, relevantly, assess a prisoner against the COPD, and, submit his work for review by Ms Sheffield;
    3. his assessment had regard to the human rights of the Applicant.
  3. [144]
    On 27 July 2022, Mr Connellan completed his report of the DNDU Assessment.[71] We note that Mr Connellan was not seriously challenged on that evidence and that it was not put to Mr Connellan in cross-examination that he did not give consideration to the Applicant’s human rights when undertaking his assessment on 19 and 27 July 2022.
  4. [145]
    Mr Connellan in his report of 27 July 2022, and in summary, considered that:
  1. The decision would impact the Applicant’s human rights, including the right to recognition and equality before the law, protection from torture and cruel, inhuman or degrading treatment, right to privacy and reputation, right to liberty and security of person, and humane treatment when deprived of liberty. Further, that he had considered whether any other rights could be impacted but determined that no other rights were relevant.
  2. A decision not to place the Applicant on the DNDU List could, or could be seen to, limit the human rights set out in (1) especially where his circumstances and situation do in fact warrant inclusion on the List, or are such that QCS is obliged to afford him and/or other prisoners extra protection.
  3. In respect of the factors in s 13 of the HRA:
    1. The human rights of relevance centred on the need to respect the Applicant’s dignity and provide for humane containment, supervision and rehabilitation of prisoners in QCS custody.
    2. The purpose of limiting human rights by placement on the DNDU List is to safely and appropriately allocate all prisoners to the most suitable accommodation within a corrective services facility, which must include regard for the safety custody and welfare of all prisoners and the security and management of all corrective services facilities. The DNDU List is created to ensure, amongst other things, that high needs prisoners who require a single cell for medical purposes or who pose the highest risk to themselves or those around them, are guaranteed placement in a single cell to account for the safety and security of all prisoners and the centre. Only the highest risk or the highest needs prisoners are placed on the DNDU List given the limited availability of cells at the centre and, if not placed on the list, a prisoner can either be placed in a single cell or a shared cell, as required, due to operational constraints or prisoner population stressors. Further context is that the WCC is currently operating at over 100% built cell capacity which means that every prisoner cannot be guaranteed their own cell, and that prisoners will be required to share cells to account for the safe custody and welfare of all prisoners, and for the security and management of the centre.
    3. In terms of the relationship between the limitation and the purpose, that limiting the Applicant’s human rights by not placing him on the DNDU List does not mean he must automatically be required to share a cell; it instead means that he has been assessed as being able to be safely accommodated in either a single or shared cell as required by WCC to account for operational needs and for the safety and security of all prisoners and the centre.

Further, before the Applicant is required to share a cell in the future, a further assessment of his human rights must occur, along with an assessment of the suitability of him sharing a cell with the specific prisoner contemplated.

  1. In terms of whether there are any less restrictive and reasonably available ways to achieve this purpose, that if each prisoner who requests a single cell and does not otherwise meet the criteria is granted that request, a significant number of prisoners will not be able to be placed into cells at all due to capacity issues and the number of built cells at the centre. These prisoners will need to be housed in hallways and in other common areas like kitchens or other shared spaces that are not designed as sleeping quarters. This will pose safety and security concerns and it is arguable that housing prisoners in these locations is less humane and is more limiting to those prisoners’ human rights than the decision not to place the applicant on the DNDU List (where he could still be placed in either a single or shared cell as required).

Given the capacity issues within the current infrastructure, there are no other reasonably available ways to ensure that prisoners are safely accommodated at WCC.

  1. The further information comprising the pre-sentence psychological report by Dr Gavan Palk was also taken into account. This report referred to diagnoses and background factors which may predispose the Applicant to an increased subjective level of distress when exposed to various stressors, but did not qualify him for placement on the DNDU List. He was submissive and introverted rather than outwardly violent; his historical foot and leg injuries did not prevent him sharing and there was no obvious deficit at interview; case notes show baseline fleeting suicidal ideation but prisoner consistently denies any intent to act on these thoughts and can highlight various protective factors that serve to manage his risk. He persistently adamantly denied S/DSH ideation, plan or intent when interviewed and has consistently reported an intention to seek assistance from staff in an effort to avoid engaging in S/DSH behaviour. He has additionally reported a willingness to work with offender development to improve his ability to manage this risk.
  1. [146]
    The Second Respondent gave evidence that the COPD was amended with the introduction of the HRA and that prior to that legislation coming into effect, training was rolled out across the State. Mr Warwick gave similar evidence and noted that human rights were always considered prior to the enactment of the HRA.
  2. [147]
    The DNDU assessments and the decisions that followed not to place the Applicant on the DNDU List were decisions that needed to be made in accordance with s 58(1)(b).  On the whole of the evidence we are satisfied that the assessment preceding the DNDU decision and the decision made on 27 July 2022 that the Applicant did not meet the criteria that warrants single cell placement, gave proper consideration to human rights relevant to the decision. The decision reached on that occasion was, in effect, the same as decisions earlier reached, including in May 2022 and June 2021.
  3. [148]
    We have found that there has been no breach of the Applicant’s human rights. We have also found that the assessments and decision made in July 2022 not to place the Applicant on the DNDU List was made in accordance with s 58(1)(b).
  4. [149]
    In the circumstances, and in the exercise of our discretion, we decline to make a declaration that the conduct complained of is unlawful under the HRA. We also refuse the application for an order that the Applicant be placed on the DNDU List.

Conclusion

  1. [150]
    We conclude that there has been no unlawful indirect discrimination within the meaning of the ADA in the decision to refuse to place the applicant on the DNDU List. Further, we find that no contravention of s 58(1)(a) or (b) of the HRA has been established.
  2. [151]
    Accordingly, the Applicant’s complaint is dismissed.

Footnotes

[1]CSA, s 150(d) - (e).

[2]CSA, s 18.

[3]Section 18 says that “whenever practicable” each prisoner must be provided with his or her own room.

[4]Affidavit of Second Respondent sworn 15 June 2022 – [15].

[5]Affidavit of Second Respondent sworn 15 June 2022 – [17].

[6]Affidavit of Second Respondent sworn 15 June 2022 – [17].

[7]Affidavit of Second Respondent sworn 15 June 2022 – [40].

[8]Affidavit of Second Respondent sworn 15 June 2022 – [18] and 5.2 of the COPD-Prisoner Accommodation Management – Cell Allocation.

[9]Affidavit of Second Respondent sworn 15 June 2022 – [19].

[10]   Second Affidavit of Second Respondent sworn 7 February 2023 – [29].

[11]ADA, s 7.

[12]ADA, s 8.

[13]ADA, s 11.

[14]Respondents’ Written Outline of Submissions filed 20 June 2023 at [18].

[15]   ADA, s 11(4).

[16] Bell and iiNet Ltd [2017] QCAT 114 at [37] citing Australia Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165, 185 (Dawson J), 195-196 (McHugh J); Waters v Public Transport Corporation (1991) 173 CLR 349, 393 (Dawson and Toohey JJ); Krysiak v Public Transport Authority [2016] WASC 258, [17]; New South Wales v Amery (2006) CLR 174, 212.

[17]In the Complainant’s Further Amended Contentions filed 2 December 2022 at [20](b), and again in a written Outline of Submissions filed on 6 April 2023 before the hearing and in the written Outline of Closing Submissions filed 5 June 2023 after the hearing was well and truly finished.

[18]Applicant’s written Outline of Closing Submissions filed 5 June 2023 – [93]–[102].

[19]Applicant’s written Outline of Closing Submissions filed 5 June 2023 – [103]–[109].

[20]In the Respondents’ Response to Further Amended Statement of Contentions filed 15 March 2023 at [29](c)(i) and in their Outline of Submissions filed 6 April 2023 before the hearing.

[21] Styles v Secretary, Department of Foreign Affairs and Trade (1988) 16 ALD 234; Bell v iiNet Ltd [2017] QCAT 114 at [62].

[22][2000] 1 Qd R 373.

[23]Ibid at 386.

[24][1996] FCA 1618.

[25]Ibid at [61]-[62].

[26][2006] 151 FCR 562.

[27]Ibid at [134].

[28]Applicants’ Closing Written Submissions filed 5 June 2023 at [117].

[29]   Outline of Applicant’s Closing Submissions filed 5 June 2023 – [118].

[30]   ADA, s 205.

[31]We will refer to the placement decision and the assessment decisions together as “the decisions”.

[32]HRA, s 59(2); SQH v Scott [2022] QSC 16 at [103] per Williams J.

[33] Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273 at [93].

[34]HRA, s 58(6)(a).

[35] Johnston & ors v Carroll (Commissioner of the Queensland Police Service & anor [2024] QSC 2 at [20].

[36] Innes v Electoral Commission of Queensland (No 2) [2020] QSC 293 at [291]; Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273 at [130].

[37] Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95 at [306]; SCH v Scott (2022) 10 QdR 215.

[38] Owen-D’Arcy at [104] referring to Momcilovic v R (2011) 245 CLR 1 at [22], [34] per French CJ, [432] per Heydon J, [555]-[557] per Crennan and Kiefel JJ.

[39]This was the approach adopted in Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273.

[40] Johnston at [70]-[71]; Owen-D’Arcy at [128]–[129].

[41]Human Rights Bill 2018 Explanatory Note at p 19.

[42]See, for example, Rabone v Pennine Care NHS Trust [2012] 2 AC 72 at [15] per Lord Dyson referring to Keenan v United Kingdom (2001) 33 EHRR 913.

[43] Owen-D’Arcy at [194].

[44]Ibid at [198].

[45] Thompson v Minogue (2021) 67 VR 301 at 318 [55].

[46] Ireland v United Kingdom (1979-1980) 2 EHRR 25 at [167].

[47][2006] 1 AC 396; [2005] UKHL 66 at [7].

[48] Kudla v Poland (2002) 35 EHRR 11 cited with approval in Eastman v Chief Executive Officer of the Department of Justice and Community Safety [2010] ACTSC 4; ACTLR 161 at [91].

[49][2021] QSC 273 at [186] per Martin J applying Certain Children v Minister for Families and Children (No 2) [2017] VSC 251 at [250] per Dixon J.

[50]Case Notes from 29 November 2018 to 10 January 2019; Case Notes around October 2020; Case Notes from December 2020 to March 2021.

[51]From 26 March 2019 to 26 August 2019.

[52]Case notes from January 2017 to July 2017; Case Notes from May 2018 to June 2018.

[53]Explanatory Notes to the Human Rights Bill, 2018 at 25.

[54] Attorney-General for the State of Queensland v Grant (No 2) [2022] QSC 252 at [120] per Applegarth J.

[55] Taunoa v Attorney-General [2007] NZSC 70 at [177]; Grant (No 2) referring to Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273 at [235]-[237].

[56] Grant (No 2) at [126] citing Castles v Secretary of the Department of Justice (2010) 28 VR 141 at [108].

[57] Castles at [111]; cited with approval in Certain Children at [175].

[58]K Evans and N Petrie, Annotated Queensland Human Rights Act, Law Book Company (2022) [HRA.30.40] citing Application for Bail by HL (No 2) [2017] VSC 1; Certain Children v Minister for Families and Children (2016) 51 VR 473; Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441; DPP v Tiba [2013] VCC 1075; Dale v DPP [2009] VSCA 212; Attorney-General v Taunoa [2006] 2 NZLR 457.

[59]Affidavit of Joel Smith sworn 15 June 2022 at [12], Hearing Book at 915.

[60]Ibid at [15].

[61]Ibid at [29].

[62]Second Affidavit of Joel Smith sworn 7 February 2023 at [19].

[63]Report by Dr JG Reddan, Forensic and General Psychiatrist, Hearing Book at 1468.

[64] Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273 at [243].

[65]Ibid at [245] citing Castles v Secretary, Department of Justice (2010) 28 VR 141.

[66] Johnston at [77] citing Thompson v Minogue (2021) 67 VR 301.

[67]Ibid; see also at [136]-[137].

[68]Ibid at [137] citing Castles at [185]–[186].

[69]Affidavit of Trudy Sheffield sworn on 8 February 2023 at [17].

[70]Transcript at 2-91 – 2-92.

[71]DNDU Assessment by Andrew Connellan dated 27 July 2022, approved by Joel Smith on 27 July 2022, Hearing Book at 1043 to 1046.

Close

Editorial Notes

  • Published Case Name:

    Mizner v State of Queensland (Corrective Services) & anors

  • Shortened Case Name:

    Mizner v State of Queensland (Corrective Services) & anors

  • MNC:

    [2024] QCAT 468

  • Court:

    QCAT

  • Judge(s):

    Judicial Member Colin Forrest, Senior Member Traves

  • Date:

    13 Aug 2024

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
Application for Bail by HL (No 2) [2017] VSC 1
1 citation
Jump To
Cite 1 - [2017] VSC 1
Attorney-General v Grant [No 2](2022) 12 QR 357; [2022] QSC 252
2 citations
Jump To
Cite 1 - [2022] QSC 252
Cite 2 - [2022] QSC 252
Attorney-General v Taunoa [2006] 2 NZLR 457
2 citations
Jump To
Cite 1 - [2006] 2 NZLR 457
Cite 2 - [2006] 2 NZLR 457
Austin BMI Pty Ltd v Deputy Premier(2023) 16 QR 377; [2023] QSC 95
1 citation
Jump To
Cite 1 - [2023] QSC 95
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165
1 citation
Jump To
Cite 1 - (1989) 168 CLR 165
Australian Medical Council v Wilson [1996] FCA 1618
1 citation
Jump To
Cite 1 - [1996] FCA 1618
Bell v iiNET Ltd [2017] QCAT 114
3 citations
Jump To
Cite 1 - [2017] QCAT 114
Cite 2 - [2017] QCAT 114
Cite 3 - [2017] QCAT 114
Castles v Secretary, Department of Justice (2010) 28 VR 141
3 citations
Jump To
Cite 1 - (2010) 28 VR 141
Cite 2 - (2010) 28 VR 141
Cite 3 - (2010) 28 VR 141
Certain Children v Minister for Families and Children (2016) 51 VR 473
1 citation
Jump To
Cite 1 - (2016) 51 VR 473
Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441
2 citations
Jump To
Cite 1 - (2017) 52 VR 441
Cite 2 - (2017) 52 VR 441
Certain Children v Minister for Families and Children (No 2) [2017] VSC 251
1 citation
Jump To
Cite 1 - [2017] VSC 251
D v Persons Unknown; F v Persons Unknown [2021] EWHC 157
2 citations
Jump To
Cite 1 - [2021] EWHC 157
Cite 2 - [2021] EWHC 157
Dale v DPP [2009] VSCA 212
1 citation
Jump To
Cite 1 - [2009] VSCA 212
DPP v Tiba [2013] VCC 1075
1 citation
Jump To
Cite 1 - [2013] VCC 1075
Eastman v Chief Executive Officer of the Department of Justice and Community Safety [2010] ACTSC 4
1 citation
Jump To
Cite 1 - [2010] ACTSC 4
Hurst v Queensland (2006) 151 FCR 562
1 citation
Jump To
Cite 1 - (2006) 151 FCR 562
Innes v Electoral Commission of Queensland (No 2)(2020) 5 QR 623; [2020] QSC 293
2 citations
Jump To
Cite 1 - [2020] QSC 293
Cite 2 - [2020] QSC 293
Ireland v United Kingdom (1979-1980) 2 EHRR 25
1 citation
Jump To
Cite 1 - (1979-1980) 2 EHRR 25
JM v QFG[2000] 1 Qd R 373; [1998] QCA 228
2 citations
Jump To
Cite 1 - [2000] 1 Qd R 373
Cite 2 - [2000] 1 Qd R 373
Johnston v Commissioner of Police [2024] QSC 2
2 citations
Jump To
Cite 1 - [2024] QSC 2
Cite 2 - [2024] QSC 2
Keenan v United Kingdom (2001) 33 EHRR 913
1 citation
Jump To
Cite 1 - (2001) 33 EHRR 913
Krysiak v Public Transport Authority [2016] WASC 258
1 citation
Jump To
Cite 1 - [2016] WASC 258
Kudla v Poland (2002) 35 EHRR 11
1 citation
Jump To
Cite 1 - (2002) 35 EHRR 11
Momcilovic v The Queen (2011) 245 CLR 1
1 citation
Jump To
Cite 1 - (2011) 245 CLR 1
New South Wales v Amery (2006) CLR 174
1 citation
Jump To
Cite 1 - (2006) CLR 174
Owen-D'Arcy v Chief Executive, Queensland Corrective Services(2021) 9 QR 250; [2021] QSC 273
7 citations
Jump To
Cite 1 - [2021] QSC 273
Cite 2 - [2021] QSC 273
Cite 3 - [2021] QSC 273
Cite 4 - [2021] QSC 273
Cite 5 - [2021] QSC 273
Cite 6 - [2021] QSC 273
Cite 7 - [2021] QSC 273
R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396
1 citation
Jump To
Cite 1 - [2006] 1 AC 396
R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66
1 citation
Jump To
Cite 1 - [2005] UKHL 66
Rabone v Pennine Care NHS Trust [2012] 2 AC 72
1 citation
Jump To
Cite 1 - [2012] 2 AC 72
SCH v Scott (2022) 10 Qd R 215
1 citation
Jump To
Cite 1 - (2022) 10 Qd R 215
SQH v Scott(2022) 10 QR 215; [2022] QSC 16
2 citations
Jump To
Cite 1 - [2022] QSC 16
Cite 2 - [2022] QSC 16
Styles v Secretary (1988) 16 ALD 234
1 citation
Jump To
Cite 1 - (1988) 16 ALD 234
Taunoa v Attorney-General [2007] NZSC 70
1 citation
Jump To
Cite 1 - [2007] NZSC 70
Thompson v Minogue [2021] VSCA 358
1 citation
Jump To
Cite 1 - [2021] VSCA 358
Thomson v Minogue (2021) 67 VR 301
2 citations
Jump To
Cite 1 - (2021) 67 VR 301
Cite 2 - (2021) 67 VR 301
Walters v Public Transport Corporation (1991) 173 CLR 349
1 citation
Jump To
Cite 1 - (1991) 173 CLR 349

Cases Citing

Case NameFull CitationFrequency
Hope v Danianarnie Pty Ltd [2025] QCAT 2751 citation
Mizner v State of Queensland (Corrective Services) [2025] QCA 1692 citations
1

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