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Tafao v State of Queensland[2020] QCATA 76

Tafao v State of Queensland[2020] QCATA 76

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Tafao v State of Queensland [2020] QCATA 76

PARTIES:

LEILANI TAFAO

(applicant/appellant)

v

STATE OF QUEENSLAND

(first respondent)

 

SERCO AUSTRALIA PTY LTD

(second respondent)

 

MARK WALTERS

(third respondent)

APPLICATION NO/S:

APL338-18

ORIGINATING APPLICATION NO/S:

ADL075-16

MATTER TYPE:

Appeals

DELIVERED ON:

22 May 2020

HEARING DATE:

15 October 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard

Member Traves

ORDERS:

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

  1. Leave to appeal is granted.
  2. The appeal is allowed.
  3. The Tribunal’s decision is set aside.
  4. It is declared that, in respect of the use of male pronouns to refer to the applicant, the first respondent, second respondent and third respondent are jointly and severally liable for unlawful indirect discrimination in contravention of s 101 of the Anti-Discrimination Act 1991 (Qld).
  5. The complaint alleging unlawful discrimination in relation to the imposition of internal management plans is dismissed.
  6. The respondents must make a private apology pursuant to s 209(1)(d) of the Anti-Discrimination Act 1991 (Qld) in relation to the use of male pronouns in addressing or referring to the applicant.

THE APPEAL TRIBUNAL DIRECTS:

  1. Each party must file in the tribunal and serve on the other parties their submissions as to costs, if any, by 4:00pm on 12 June 2020.
  2. The parties must file in the tribunal and serve on the other parties their submissions in reply as to costs, if any, by 4:00pm on 30 June 2020.
  3. Unless otherwise ordered by the Appeal Tribunal, any application for costs will be heard and determined on the papers, not before 30 June 2020.

 

APPEAL AND NEW TRIAL – .APPEAL – GENERAL PRINCIPLES – whether error in giving gender the same meaning as sex for the purposes of the Anti-Discrimination Act 1991 (Qld) (AD Act) – where treatment was use of male pronouns in reference to the applicant who identified as female – whether incumbent on Tribunal to find less favourable treatment was on the basis of the attribute of gender identity – whether error in failure to consider whether gender identity was a reason or substantial reason for the less favourable treatment – whether error in finding application of the COPD was the reason for the treatment – whether error in finding officer’s comment was a ‘factual comment’ – whether error in failing to consider submissions made regarding some matters in s 319G(3) of the Corrective Services Act 2006 (Qld) – whether error in finding use of male pronouns was reasonable within s 319G(2) of the Corrective Services Act – where treatment was the imposition of internal management plans (IMPs) – whether error in concluding the IMPs were to mitigate sexually-laden behaviour and not transgendered behaviour – whether error in finding imposition of IMPs was not on the basis of the attribute – whether error in failure to consider submissions made regarding some matters in s 319G(3) of the Corrective Services Act as to whether the imposition of IMPs was reasonable – whether error in finding treatment was reasonable within s 319G of the Anti-Discrimination Act – whether error in finding a term that the applicant ‘be a man’ could not and had not been imposed – whether error in failure to consider applicant’s submissions as to whether the term not reasonable under s 11 of Anti-Discrimination Act – whether error in failing to consider applicant’s submissions regarding some matters in s 319H(2) of Corrective Services Act – whether error in concluding imposition of term was reasonable within s 319H(2) of the Corrective Services Act – whether error in finding second respondent and third respondent did not act in bad faith within the meaning of s 319I of the Corrective Services Act.

DISCRIMINATION – DIRECT DISCRIMINATION – INDIRECT DISCRIMINATION – ATTRIBUTE OF GENDER IDENTITY – whether a biological male who identified as a woman was discriminated against while incarcerated in a male prison on the basis of ‘gender identity’ – whether use of male pronouns constituted unlawful discrimination – whether the imposition of internal management plans which required the applicant to ‘mitigate transgender behaviour’ constituted unlawful discrimination – whether treatment of the applicant by the respondents was ‘reasonable’ within the meaning of the Corrective Services Act – whether the treatment was in bad faith within the meaning of s 319I of the Corrective Services Act.

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

Births, Deaths and Marriages Registration Act 2003 (Qld), s 23, s 24

Corrective Services Act 2006 (Qld), s 5A, Chapter 6, Part 12A, Part 12B, s 319B, s 319C, s 319G, s 319H, s 319I

Human Rights Act 2019 (Qld), s 108

AB v Western Australia [2011] HCA 42; (2011) 244 CLR 390

Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165

Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1092.

IW v City of Perth (1997) 191 CLR 1

JM v QFG & GK [1998] QCA 228

Mandla v Dowell Lee [1983] 2 AC 548

New South Wales v Amery (2006) 230 CLR 174

Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697

NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11

Purvis v State of New South of Wales (Department of Education and Training) [2003] HCA 62

R (on the application of Wood) v Metropolitan Police Comr [2009] EWCA Civ 414; [2009] 4 All ER 951

R (on the application of AB) v Secretary of State for Justice [2010] 2 All ER 151

Re East; Ex parte Nguyen (1998) 159 ALR 108

Tafao v State of Queensland [2018] QCAT 409

Waters v Public Transport Corporation (1991) 173 CLR 349.

Wotton v State of Queensland (No 5) [2016] FCA 1457

REPRESENTATION & APPEARANCES:

 

Applicant:

S Robb instructed by Caxton Legal

First Respondent:

Second and Third Respondents:

C Murdoch QC and E Shorten instructed by Crown Law

S Mackie instructed by Carter Newell

REASONS FOR DECISION

  1. [1]
    Leilani Tafao[1] (the applicant) makes application for leave to appeal and appeal the decision of the Tribunal dismissing her complaint that the respondents had contravened the Anti-Discrimination Act 1991 (Qld) (AD Act) by unlawfully discriminating against her on the basis of gender identity while she was incarcerated in a male, high security, prison. 
  2. [2]
    Ms Tafao claimed that she was discriminated against by the officers’ insistence on referring to her by male pronouns and by the imposition of behaviour plans (Internal Management Plans referred to in these reasons for decision as ‘IMPS’) specifically devised for Ms Tafao which she alleges were aimed at mitigating her transgendered behaviour and which prevented her from “being who [she was]”.
  3. [3]
    Ms Tafao was imprisoned at the Southern Queensland Correctional Centre (SQCC) from 9 March 2015 to 5 November 2015. Ms Tafao is a transgender woman who was born a biological male but who has lived as a female since she was 13 or 14 years old. From approximately 15 years of age she has taken hormone therapy and in 2002 she had partial gender reassignment surgery. Ms Tafao is identified as a male on her Samoan birth certificate and as female on her New Zealand passport. On the Order of Transfer of a Prisoner prepared pursuant to s 68 of the Corrective Services Act 2006 (Qld) (the CS Act) and generated from information in the Integrated Offender Management System (IOMS) database, she is identified as male.
  4. [4]
    The SQCC is operated by Serco Australia Pty Ltd (Serco) pursuant to an agreement between the State of Queensland and Serco executed on 28 July 2011. Mark Walters, the third respondent, is a Director of the SQCC.
  5. [5]
    In Queensland, prisoners are sent to a prison depending upon whether their registered gender is female or male. Essentially that will depend upon biological factors, so that persons with male genitalia will be incarcerated in a male prison. We note that Ms Tafao has previously served a term of imprisonment in a female prison in New Zealand but requested to be transferred to a male prison because she found it easier to get along with men and that her time in prison was easier in a male prison.
  6. [6]
    The AD Act applies to prisoners subject to the modifications introduced in the CS Act. In particular, if discrimination occurs within the prison environment, it will not be unlawful if the treatment was ‘reasonable’ within the meaning of the CS Act. It is this notion of what is ‘reasonable’ in the context of an overcrowded, high-security, male prison that was at the heart of this matter.
  7. [7]
    Ms Tafao seeks to overturn the Tribunal’s decision on a number of grounds which raise questions of law and questions of mixed law and fact. On the basis leave to appeal is granted, Ms Tafao seeks to set aside the decision of the Tribunal and to substitute it with a decision of the Appeal Tribunal made according to law.

Statutory Overview

  1. [8]
    The AD Act protects against unfair direct and indirect discrimination on a ground or attribute set out in s 7 and in an area of activity set out in Part 4,[2] which includes in the administration of State laws and programs.[3]
  2. [9]
    Section 101 in Part 4 of the AD Act provides that:

Discrimination in Administration of State Laws and Programs Area

A person who

(a) performs any function or exercises any power under State law or for the purposes of a State Government program; or

(b) has any other responsibility for the administration of State law or the conduct of a State Government program;

must not discriminate in

(c) the performance of the function; or

(d) the exercise of the power; or

(e) the carrying out of the responsibility.

  1. [10]
    Section 7(m) prohibits discrimination on the basis of the attribute of ‘gender identity’. Gender identity is defined to mean, relevantly, that the person identifies, or has identified, as a member of the opposite sex by living or seeking to live as a member of that sex.[4] Discrimination on the basis of an attribute (here, gender identity) is extended by s 8 to include discrimination on the basis of a characteristic that a person with the attribute generally has or that is often imputed to a person with the attribute.
  2. [11]
    Under the Births, Deaths and Marriages Registration Act 2003 (Qld) a person may register their re-assigned sex provided the relevant application is accompanied either by the statutory declarations of 2 doctors verifying that the person has undergone sexual reassignment surgery or a recognition certificate.[5] Upon registration a person will be a person of the sex as reassigned.[6] It is not necessary, in order for the protections of the AD Act to apply, that any medical or surgical intervention have taken place. The purpose of the AD Act is to ensure that a person is not treated differently in certain defined activities on the basis that, relevantly here, they identify as a member of the opposite sex. Put another way, a person has a right to identify as a member of the opposite sex if this is how they want to live their life, whether or not any medical or surgical reassignment procedures have been undertaken.
  3. [12]
    The extent of the right to protection against discrimination based on gender identity is statutorily modified in the context of the prison environment by Part 12A of the CS Act.[7] These modifications were introduced by the Corrective Services and Other Legislation Amendment Act 2008 (Qld). The amendments were aimed at stemming an increasing number of complaints of discrimination made by offenders in relation to their treatment while in custody in circumstances where that treatment would be considered appropriate by the community and fair by the government given the operational constraints of the correctional environment.[8]  This was to be achieved by imposing an extra requirement to be considered when determining whether the treatment of an offender was unlawful discrimination, in effect, as to ‘whether the treatment of the offender was reasonable within the unique correctional environment’.[9] This was said to require the Tribunal to ‘consider the same factors that correctional management do when deciding how to reasonably respond to an offender’s request’.[10]
  4. [13]
    Section 319B of the CS Act provides:

(1) The purpose of this part is to maintain a balance between—

(a) the financial and other constraints to which protected defendants are subject in their treatment of offenders; and

(b) the need to continue to respect offenders’ dignity.

(2) The purpose is achieved primarily by—

(a) requiring offenders to use internal complaints procedures provided by the department for complaining about an alleged contravention of the Anti-Discrimination Act before complaining under that Act about a contravention; and

(b) modifying the Anti-Discrimination Act’s application to the treatment of offenders by protected defendants.

  1. [14]
    Sections 319G and 319H modify the application of the AD Act by imposing an extra ‘reasonableness’ requirement for direct and indirect discrimination respectively, so that a protected defendant does not discriminate against an offender if the treatment is reasonable. In considering whether the treatment is reasonable, the tribunal must consider any relevant submissions made about any of the following matters: the security and good order of the corrective services facility; the cost of providing alternative treatment; the administrative and operational burden of alternative treatment; resources constraints; the need to respect offenders’ dignity; whether the treatment unfairly prejudices other offenders; and any other matter the tribunal considers relevant. The protected defendant has the onus of proving, on the balance of probabilities, that the treatment is reasonable.[11]
  2. [15]
    The Explanatory Memorandum to the Corrective Services and Other Legislation Amendment Act 2008 (Qld) explains the purpose behind the introduction of sections 319G and 319H:

These sections [s 319G and 319H] make it clear that the correctional environment is unique and that any alleged discriminatory action or conduct must be considered within this context.

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

Prison management in particular must have authority to make decisions to ensure the good order and security of corrective services facilities and the safety of the community, staff, visitors and offenders. It is due to the level of control over offenders that is required to ensure safety and security and the use of standard practices to facilitate this outcome that decisions are frequently questioned and complaints are regularly made by offenders.

Correctional authorities receive requests for special treatment from offenders on an almost daily basis. Corrective Services must be able to consider factors such as available resources, community expectations and fairness to other offenders when deciding whether to grant a request and to reach a compromise solution where necessary in order to maintain the security and safety of staff, visitors and offenders.

For example, a prisoner requests a kosher diet. The practical realities of operating a corrective services facility mean there is insufficient storage space to keep the kosher food separate from other foods, difficulties with preparing and cooking kosher meals separately and the human resources required to train staff to cook the meal appropriately causes administrative and operational burden. Therefore a decision is made to provide the prisoner with a pre-packaged frozen kosher meal.

While the frozen meal is not a fresh meal in line with what other prisoners are served it is adequate to meet the need of the offender to obtain a nutritionally balanced meal and fulfil their religious requirements.

However, what is expected by the prisoner is a fresh meal and the provision of the frozen meal by correctional management is not optimal in the prisoner’s view.

These sections require the ADTQ to consider the criteria set out as described, despite section 10 and 11(2) of the Anti-Discrimination Act 1991, in cases where the treatment complained of occurred while an offender was under the supervision of the Protected Defendant.[12]

  1. [16]
    Section 319I(2) of the CS Act provides that if the Tribunal decides a “protected defendant” contravened the AD Act in relation to an “offender”, the tribunal may make a compensation order only if it:
    1. (a)
      finds that the contravention happened because of an act or omission done or made in bad faith; and
    2. (b)
      considers that no non-compensatory order effectively redresses the offender for the contravention.
  2. [17]
    Non-compensatory orders are those, excepting an order for compensation, set out in s 209 of the AD Act.
  3. [18]
    We observe that the Human Rights Act 2019 (Qld) does not apply to an act or decision made by a public entity before its commencement, which was 1 January 2020.[13]
  4. [19]
    We turn now to consider the decision of the Tribunal and the appeal grounds.

Decision of the Tribunal

  1. [20]
    Ms Tafao claims she was subject to unlawful discrimination while she was incarcerated at SQCC and that the acts or omissions constituting the direct or indirect discrimination were made in bad faith by the third respondent within the meaning of Chapter 6, Part 12A of the CS Act.
  2. [21]
    In relation to direct discrimination, the Tribunal made the following findings:
    1. (a)
      The protected attribute was ‘gender identity’ (s 7(m));

Use of male pronouns

  1. (b)
    A person who lives and seeks to live as a member of the opposite sex will refer to themselves by language associated with the sex or gender with which they identify and that is a characteristic of the attribute (s 8);
  2. (c)
    The comparator is a cisgender male, that is, a person whose sense of personal identity and gender corresponds with their birth sex;
  3. (d)
    The relevant ‘circumstances’ for the purposes of s 10 are that the comparator is: in a male prison; where the conduct of the prison is set in a statutory, policy and operational framework; and where the comparator desires to be addressed in accordance with his gender identity;
  4. (e)
    That identifying a prisoner by reference to biological sex or gender, and not by gender identity, results in differential treatment of the cisgender male and the male prisoner who identifies as female. That is because the cisgender prisoner will always be addressed as a male and by male pronouns in accordance with his gender identity and the male prisoner who identifies as a female will never be addressed as a female and by female pronouns;
  5. (f)
    The differential treatment was less favourable treatment because of the distress and offence caused by the treatment;
  6. (g)
    However, the application of the Custodial Operation Practice Directive (COPD) as interpreted by the second and third respondents was the reason for the refusal to use female pronouns and the statement by Officer Ash was made as a statement of fact. The treatment was not on the basis of the attribute;
  7. (h)
    In any event, the treatment was reasonable within the meaning of s 319G(2) of the CS Act. The security and good order of SQCC rendered it reasonable not to focus on ‘gender identity’ in dealing with Ms Tafao. While it was accepted that using male pronouns offended Ms Tafao’s dignity, other issues were the most pressing concerns and were reasonable in the circumstances. There were no submissions in relation to the balance of the matters referred to in s 319G(3) of the CS Act and paragraphs (b), (c), (e), (f), (i) and (j) are not relevant;
  8. (i)
    The Tribunal further observed that the respondents had not acted in bad faith within the meaning of s 319I(2) of the CS Act: in Mr Walters case, he was motivated  by a desire to protect Ms Tafao and facilitate the effective running of the prison. 

Content of the IMPs

  1. (j)
    The functional IMPs dated 3 July 2015 and 26 August 2015 addressed “sexually-laden behaviour” which is not a characteristic of gender identity and did not seek to mitigate Ms Tafao’s ‘gender identity’.
  2. (k)
    For the purposes of the functional IMPs, the comparator was a cisgender male and the circumstances were that: the cisgender male is a prisoner in a male prison in 2015; the conduct of the prison is set in a statutory, policy and operational framework; and the comparator engages in aggressive and sexualised behaviour.
  3. (l)
    The applicant did not claim, and the Tribunal did not find, that “sexualised behaviour” is a characteristic of gender identity or that being a victim of sexual assault is a characteristic of gender identity.
  4. (m)
    The treatment given was the imposition of the IMPs with the objective of mitigating sexually-laden behaviour, through the use of a community transgender support group and a representative of the Samoan community.
  5. (n)
    A cisgender male prisoner who exhibited sexualised behaviour would be disciplined and subject to an IMP. There was no less favourable treatment by the imposition of the IMPs.
  6. (o)
    The treatment (imposition of the IMPs) was not on the basis of the attribute of gender identity but to curb identified undesirable and problematic behaviour.
  7. (p)
    The treatment was reasonable to secure the safety of the applicant and to ensure the proper functioning of the prison within the meaning of s 319G(2) of the CS Act.
  8. (q)
    There was no bad faith following earlier reasoning.
  1. [22]
    In relation to indirect discrimination the Tribunal made the following findings:
    1. (a)
      The imposition of the IMPs did not result in the imposition of a term “to be a man”.
    2. (b)
      Officer Ash’s comments did not impose a term that Ms Tafao “be a man” because the statements merely reflected how Officer Ash and the second and third respondents viewed her circumstances: that although she identifies as female, she is of the male biological sex/gender and in a male prison. These are statements of fact and do not impose a term that she “be a man”.
    3. (c)
      To submit to a form of address consistent with her biological sex/gender, rather than her gender identity, arguably was a requirement to “be a man while being addressed” rather than being able to identify as a female and to be addressed as a female. However, no term was imposed because the applicant was a man.
    4. (d)
      If the term was that the applicant “identify as a man” no term would have been imposed for the same reasoning.
    5. (e)
      If the term was that Ms Tafao “identify as a man” it is possible to conclude the applicant could not comply because of the nature of her attribute. A higher proportion of prisoners without the attribute would be able to comply with the term.
    6. (f)
      The term that Ms Tafao ignore her gender identity when being addressed was reasonable because it was imposed in compliance with the COPD for the security and good order of the prison and for the safety of the applicant. The term was reasonable under s 11 of the AD Act and s 319H of the CS Act.
    7. (g)
      There was no bad faith on the part of the respondents in the imposition of any term or requirement for the same reasoning as before.
    8. (h)
      If a contravention of the AD Act had occurred, the second respondent would be liable for the acts of its employee, the third respondent, pursuant to s 133 of the AD Act. The first respondent was, in turn, vicariously liable for the conduct of the second and third respondents.

Grounds of Appeal

  1. [23]
    There are five grounds of appeal. Grounds one, two and three raise issues of fact alone or of mixed law and fact and are brought under s 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Leave to appeal is necessary.
  2. [24]
    Grounds four and five each involve various sub-grounds. While some of the sub-grounds raise questions of law for which leave is not required under s 142(1), other sub-grounds raise questions of mixed law and fact for which leave under s 142(3)(b) is necessary.
  3. [25]
    If leave to appeal is granted, appeals against a decision on a question of fact only, or of mixed law and fact, must be decided by way of rehearing.[14] Where error is demonstrated, the appeal tribunal’s power to intervene arises and the appeal tribunal is to decide the case on the law and facts existing at the time of the appeal and, subject to the findings of the member on credibility of witnesses, on its own assessment of facts.[15]
  4. [26]
    The grounds of appeal are as follows:
  1. 1)
    The member erred in failing to take judicial notice of the meaning of the term ‘gender’ as distinct to the meaning of the term ‘sex’; [73].
  2. 2)
    The member erred in finding that ‘the applicant has the male gender because of her biological sex’: [175].
  3. 3)
    The member erred in finding that the applicant is a man: [178].
  4. 4)
    The member erred in finding the respondents did not directly discriminate against the respondent:

Pronouns and addressing the applicant as a man

  1. Erred in finding that the second and third respondents’ conduct in using male pronouns to address the applicant was undertaken in compliance with the COPD: [80], [81], [86], [191].
  2. Erred in finding that the less favourable treatment was not on the basis of the applicant’s attribute of gender identity: [85]-[88].
  3. Erred in failing to consider the applicant’s submissions in relation to s 319G(3)(b), (c), (d), (e), (f), (h) and (j) of the CS Act; and erred in finding that the matters in those subsections are not relevant: [90].
  4. Erred in finding the second and third respondents conduct in using male pronouns to address the plaintiff was reasonable: [89]-[91], [93].
  5. Erred in finding that the second and third respondents did not act in bad faith: [94]-[100].

The impugned language in the IMPs

  1. Erred in finding that there had been no direct discrimination of the applicant by the respondents ‘as a result of the objective in the IMPs that the applicant mitigate her sexually-laden behaviour’: [166].
  2. Erred in finding that by the IMPs the second and third respondents did not require the applicant to ‘mitigate transgendered behaviour’: [156].
  3. Erred in finding that a cisgender comparator in circumstances that are the same or not materially different would be treated in the same way as the applicant: [163].
  4. Erred in finding the treatment was not on the basis of the attribute of gender identity: [164].
  5. Erred in finding the respondent’s conduct was reasonable in the circumstances pursuant to s 319G(2) of the CS Act.
  6. Erred in finding that there has been no bad faith: [167].
  1. 5)
    The member erred in finding the respondents did not indirectly discriminate against the applicant:
    1. The member erred in finding that the respondents could not have imposed a term that the applicant be a man in circumstances where the learned member accepts that the applicant has the protected attribute of gender identity with the characteristics of ‘living and seeking to live as a member of the female sex and referring to herself as female and seeking to be referred to as a female and by feminine pronouns”: [62], [175], [177], [178].
    1. The member erred in finding that no term was imposed on the applicant: [178].
    2. The member erred in finding that the second and third respondents’ addressing of the applicant ‘by reference to her gender not gender identity and implicitly [requiring] the applicant to ignore her gender identity when being addressed’, was reasonable in the circumstances, pursuant to s 11 of the AD Act and s 319H(2) of the CS Act: [191], [193].
    3. The member erred in finding that there had been no bad faith in the imposition of any term or requirement on the applicant: [194].
  1. [27]
    Ms Tafao’s submissions refer to the grounds of appeal raised by the application into five broad categories:
    1. The member erred in failing to distinguish the meaning of the word ‘gender’ from the word ‘sex’ in the circumstances of the case. This created problems throughout the decision, concerned as it was with allegations of discrimination on the basis of gender identity (grounds 1-3).
    2. The member failed to find that the respondents unlawfully and directly discriminated against the applicant by persistently using male personal pronouns to address the applicant and in addressing the applicant as though she were a man (grounds 4(A)-(E)).
    3. The member failed to find that the respondents unlawfully and directly discriminated against the applicant by the contents of the Functional IMPs imposed on the applicant, in which she was referred to using the male pronouns and which sought to have her ‘mitigate transgender behaviour’ (grounds 4(F)-(K)).
    4. The member failed to find that the respondents unlawfully and indirectly discriminated against the applicant by imposing a term on the applicant that she be a man (grounds 5(A)-(C)).
    5. The member erred in finding that, had there been a contravention of the Act, the respondents had not acted in bad faith (grounds 4(E), 4(K) and 5(D)).

[28] Each of the grounds of appeal is addressed below.

Ground 1: Failure to take judicial notice of the distinction between ‘gender’ and ‘sex’. Ground 2: Error in finding that applicant has the male gender because of her biological sex.

Ground 3: Error in finding the applicant is a man.

  1. [28]
    Grounds 1 and 2 relate to the issue of terminology and whether, because the member used ‘gender’ and ‘sex’ interchangeably, she proceeded on an erroneous basis.
  2. [29]
    Ms Tafao submits in effect that ‘gender’ and ‘gender identity’ mean the same thing, in other words, that a person’s gender is the gender with which he or she identifies. The Member did not hold that view, at least in the context of the AD Act and, in that respect, the applicant says the Member erred. The applicant submits:

Sex refers to biological sex and gender refers to gender identity. Sex is biologically essential; gender is a social construct. These matters were the subject of comprehensive submissions by the applicant at first instance. The applicant’s explanation of her case in contentions, at the hearing and in submissions depends on an understanding that sex and gender are distinguishable.

  1. [30]
    The respondents submit that the Member made clear her reasons for ascribing the meanings she did to the terms ‘gender’ and ‘identity’ and that her use of the terms in that way did not bear upon the matters in issue in the AD Act. The protection in the AD Act is misunderstood by the applicant. It was incorrect to say that the Member ignored submissions regarding the meaning of sex and gender, those submissions having been referred to at [73] of the Reasons.[16] Further, it is argued, the meaning based upon individual words should not be inferred where they are compounded in a statute. Here the compound phrase ‘gender identity’ is explicitly defined. The applicant’s attempt to ascribe a particular meaning to ‘gender’ in that context is misconceived.

Consideration of grounds 1, 2 and 3

  1. [31]
    The protected attribute of ‘gender identity’ is defined in the AD Act as follows:

gender identity, in relation to a person, means that the person –

a) identifies, or has identified, as a member of the opposite sex by living or seeking to live as a member of that sex; or

b) is of indeterminate sex and seeks to live as a member of a particular sex.

  1. [32]
    The AD Act prohibits discrimination on the basis of ‘gender identity’, that is relevantly, on the basis that a person identifies as a member of the opposite sex by living or seeking to live as a member of that sex. The Act does not define ‘sex’ or ‘gender’.
  2. [33]
    The relevant distinction for the purposes of the relevant statutory definition of gender identity is between a person’s biological sex and the sex with which they identify which relevantly here, by the definition, must be the opposite sex. There is no need to go further and to explore, as the applicant seeks to do, the differences between ‘gender’ and ‘sex’.
  3. [34]
    The Member made clear that for the purposes of the decision she was using the terms ‘gender’ and ‘sex’ interchangeably to refer to biological sex:

The applicant has made submissions in relation to various definitions of sex, gender and gender identity. In this decision I intend to treat sex and gender as the same, that is as a reference to biological sex. I am clear in this decision that sex and gender are different to gender identity.[17]

  1. [35]
    The Member explained her rationale for doing so:

I have taken this course because of the evidence that in the SQCC prisoners are all of the male sex and prison records refer to the sex of prisoners by reference to the word ‘gender’. It would be too confusing to attribute a different definition to the word ‘gender’ than that understood and used by the respondents.[18]

  1. [36]
    The Member’s usage of the terms as interchangeable was consistent with the respondents’ use of ‘gender’ to mean (biological) ‘sex’ in prison records. In assessing whether their treatment of the applicant was unlawful discrimination, what they understood by these terms was important. For example, the COPD at the material time provided that “all records must reflect the prisoner’s registered name and gender to ensure the accuracy and consistency of the prisoner’s identification”. The Integrated Offender Management System (IOMS) referred to the applicant as being of the male gender. From the perspective of the second and third respondents, gender meant the prisoner’s biological sex. The issue is whether in adopting that meaning of ‘gender’, the Member misapplied the relevant statutory provisions or misunderstood Ms Tafao’s submissions, thereby falling into error. 
  2. [37]
    The Member did not misunderstand the concept of ‘gender identity’ as defined in the AD Act or that the applicant identified as female while being of the male biological sex. The Tribunal was not obliged to adopt Ms Tafao’s preferred definition of gender, which is not a defined term in the AD Act. The Member made it clear that she did not accept that the applicant became a female for all purposes because she identified as a female. The applicant’s submissions were, on the other hand, underpinned by the notion that the applicant’s gender was female because she identified as female. It is this difference of view which underpins grounds 1, 2 and 3.
  3. [38]
    In our view, the Tribunal’s approach to use of the terms sex and gender was immaterial to whether there had been discrimination on the basis that the applicant identified as a female. The important distinction, for the purposes of the decision, was between a person’s biological sex and the gender with which they identify. The Member was clear about the distinction and there was no error in that approach. When the Member concluded ‘the applicant has the male gender because of her biological sex’,[19] on any fair reading she did not mean that Ms Tafao identified as a male. Provided the Member was clear about that, which we find she was, there was no error in using the words ‘gender’ and ‘sex’ interchangeably.
  4. [39]
    Given our conclusion that the appropriate distinction for the purposes of the attribute of ‘gender identity’ is between a person’s biological sex and the sex with which they identify, we see no error in the Member failing to take judicial notice of the difference between ‘gender’ and ‘sex’. We therefore find no error disclosed by grounds 1 and 2.
  5. [40]
    The more difficult question is raised by ground 3, namely, whether the Member erred in finding that the applicant “was a man”. The Member said at [178]:

In relation to the use of male personal pronouns, Mr Walters required the applicant to submit to a form of address consistent with her gender, rather than her gender identity. Arguably, that is a requirement to be a man whilst being addressed, rather than being able to identify as a female and to be addressed as a female. The analysis confronts the same problem. How can it be a requirement to ‘be a man’ when one is a man? On this reasoning I find that no term or requirement has been imposed on the applicant.

  1. [41]
    A central tenet of Ms Tafao’s submissions is that she is a female, in particular, that her gender is female. The applicant submitted that a consequence of the Member equating ‘gender’ with ‘sex’ was that the Member concluded the applicant was a man which ‘sidelined’ the applicant and her submissions.[20]
  2. [42]
    The Member did not accept that a person, by application of the AD Act, became the ‘gender’ she identified with. We agree with that proposition. The AD Act does not go that far. Its purpose is to protect a person against discrimination on the basis of the attribute of gender identity. Legislation which provides for the registration of a change to the official records of a person’s sex exists in each of the states and territories. In Queensland, pursuant to s 23 of the Births, Deaths and Marriages Registration Act 2003 (Qld), a person may apply after sexual reassignment surgery, to have a recognition certificate issued which identifies the person as having undergone sexual reassignment surgery and being of the sex stated in the certificate. This may be noted in the person’s entry in the register of births. The AD Act protects the attribute of gender identity which applies irrespective of whether a person has undergone any sex reassignment procedures.
  3. [43]
    The Member’s conclusion, that the applicant was a man, is not an error if by that she meant the applicant was a biological male. On a fair reading of her reasons, we accept that the Member was referring to the applicant’s biological status. This is consistent with the Member’s observations elsewhere that the applicant identified as a female but that this did not make her a female for all purposes. There was therefore, in context, no error in finding the applicant was a man. However, the Member reasoned further as follows:

“How can it be a requirement to be a man when one is a man? On this reasoning I find that no term or requirement has been imposed on the applicant.”[21]

  1. [44]
    The problem inherent in this reasoning lies not in a conflation of gender and sex, but in failing to apply Ms Tafao’s identity as a female (thereby giving content to the protected attribute of gender identity) rather than her biological sex/gender, in applying the AD Act. This was, in our view, an error of law.[22]
  2. [45]
    The clearest example of the error was in relation to indirect discrimination and the alleged imposition of a term by the respondents, that the applicant “be a man”. The Member found the term, that is, that the applicant be a man, was not a requirement which could be imposed because the applicant was already a man. The finding was, essentially, that you could not impose a requirement to be something you already were. The Member made it clear that she considered the applicant to be a man because, as she inferred on the basis of the evidence of the third respondent, the applicant was a biological male.[23] So, for the purposes of determining whether the term could have been imposed, the Member adopted the applicant’s sex, rather than the gender with which Ms Tafao identified. We do not consider this to be a fair construction of the applicant’s suggested term: that the applicant be a man. That is, the question was whether a term or requirement was imposed on Ms Tafao to ‘be a man’ in circumstances when she identifies as a woman (irrespective that she was born a biological male). Alternatively, and in our view more properly, a broad construction of the term should have been applied, namely, that the applicant identify as a man. This interpretation is more consistent with the substance of the applicant’s complaint and submissions.
  3. [46]
    Having said that, the Member did consider in the alternative a broader formulation of the term or requirement, that is, to “deny her gender identity when being addressed”.[24] The Member said:

In the end, I cannot help but think the alleged requirement to ‘be a man’ is just another way of saying that the applicant should ignore her gender identity.[25]

  1. [47]
    However, the Member concluded in relation to the re-formulated term that it too had not been imposed. The Member said, in this respect:

In relation to the use of male personal pronouns, Mr Walters required the applicant to submit to a form of address consistent with her gender, rather than her gender identity. Arguably, that is a requirement to be a man whilst being addressed, rather than being able to identify as a female and to be addressed as a female. The analysis confronts the same problem. How can it be a requirement to ‘be a man’ when one is a man? On this reasoning I find that no term or requirement has been imposed on the applicant.[26]

  1. [48]
    In our view, and with respect to the learned Member below, this approach is flawed. The requirement being considered here was not to ‘be a man,’ but the re-formulated term to ‘identify as a man’ while being addressed. In our view, in the statutory context, namely provisions that protect gender identity, it is not consistent with the purpose of s 11, to say that the term to “identify as man” could not be imposed because the applicant is a man. The term as reformulated was a requirement that Ms Tafao identify as a man. This term could be imposed on Ms Tafao, a person with the protected attribute of gender identity, because she does not identify as a man. The applicant’s gender identity was the relevant reference point when considering whether a term relating to gender identity had or could have been imposed.
  2. [49]
    The Tribunal’s approach failed to recognise that the effect of the term was to prevent a person from living as a member of the opposite sex, that is, was about denying their gender identity, not about denying their biological sex. Further, this approach left no scope for the application of the protected attribute of ‘gender identity’. The question was not whether a male who identified as a female could be required to ‘identify as male’ in circumstances where they were male. The question was whether a male who identified as a female could be required to ‘identify as male’ in circumstances where they identified as a female. In other words, for the purposes of the protected attribute of “gender identity”, the issue of whether such a term had been imposed needed to be considered from the perspective of that person’s gender identity, not their biological sex.
  3. [50]
    The identification of an appropriate reference point for the purposes of s 11 must take into account the applicant’s attribute, here ‘gender identity’, otherwise the exercise required by s 11 does not involve consideration of the significance of having the attribute to the question of a complainant’s ability to comply with the term.  That is, a construction and application that fails to take into account the attribute in applying s 11 would be to avoid the very sort of wrong which the AD Act was intended to redress.[27] 
  4. [51]
    Accordingly, we find that there was an error in applying s 11 in the context of the protected attribute of ‘gender identity’ by reference to the finding that the applicant was a biological male, in particular,  that a term that the applicant be a man or identify as a man could not and was not imposed because the applicant was a man. This error is the error alleged in grounds of appeal 5(A) and 5(B), which are discussed further below. However, there was no error as articulated in ground 3.
  5. [52]
    Accordingly, grounds 1, 2 and 3 do not reveal any error.

Grounds 4(A)-(D): Direct Discrimination – pronouns and addressing the applicant as a man

  1. [53]
    The applicant submitted that the Member erred in finding:
  • the use of male pronouns was undertaken in compliance with the COPD (ground 4(A));
  • the less favourable treatment was not on the basis of the attribute (ground 4(B));
  • the matters in s 319G(3)(b), (c), (d), (e), (f), (h) and (j) of the CS Act were not relevant and erred in failing to consider the applicant’s submissions in relation to those matters (Ground 4(C));
  • the conduct in using male pronouns was reasonable (ground 4(D));
  • the second and third respondents did not act in bad faith (ground 4(E)).
  1. [54]
    The applicant argued that the Member erred in her construction of the COPD and that the treatment was not sanctioned by the COPD. It followed, it was argued, that the COPD could not have been the real reason for the treatment.
  2. [55]
    The applicant submitted that, once the Member found the applicant had been treated less favourably because she had been called by a pronoun that did not correspond with her gender identity, it was incumbent on the Member, applying s 10, to determine whether that less favourable treatment was ‘on the basis of’ an attribute.[28] This, it was argued, required the Member to find the real reason for the treatment.  The applicant disagreed with the Member’s finding that the real reason for the treatment was the application of the COPD.[29] The applicant submits that the reason for the less favourable treatment was not the application of the COPD but rather a “myopic insistence on refusing to respect and acknowledge the applicant’s gender identity”.[30] The failure by the Member to even consider whether the applicant’s gender identity and its characteristics were a reason for the less favourable treatment was, it was argued, an error.
  3. [56]
    Finally, the applicant submits that the Member erred in failing to consider the applicant’s submissions regarding whether the treatment was reasonable within the meaning of s 319G(3) of the CS Act and erred in finding that the matters in s 319G(3)(b), (c), (e), (f), (i) and (j) were not relevant without having regard to submissions made with respect to those matters. The  submissions of the applicant regarding the matters in s 319G(3)(b), (c), (d), (e), (f), (g), (h) and (i) were relevant and, together with the submissions concerning s 319G(3)(a), compelled the conclusion that the conduct was not reasonable and that the respondents failed to prove on the balance of probabilities that it was reasonable.
  4. [57]
    The respondents submit that the Member’s finding was that it was the third respondent’s application of the COPD that was the basis of the unfavourable treatment. The Member did not consider or find whether the second or third respondent had in fact complied with the COPD.
  5. [58]
    The respondents submit, in relation to the Member’s application of s 319G(3) of the CS Act, by pinpointing paragraph [90] of the Reasons, that the Member’s approach was taken out of context. The CS Act, s 319G was only relevant if the Member found s 10 of the AD Act applied. The respondents argue that, in any event, the Member referred to evidence relating to the ‘good order’ of the prison (which is referable to s 319G(3)(a)) and, although the Member refers to the lack of submissions regarding the other grounds in s 319G(3), was aware of the other grounds and excluded them in the context of the facts she was dealing with. Although the Member did not expressly refer to the submissions by the applicant on the other grounds in s 319G(3), the respondents submit that it was clear the Member was fully conscious of those other considerations and sought to balance the considerations by her reference to the applicant’s evidence.

Consideration of grounds 4 (A)-(D)

  1. [59]
    The COPDs are not statutory instruments. The purpose of them is to act as a guide for staff, to reduce down to an operational level the CS Act and Corrective Service Regulations.[31]
  2. [60]
    The particular terms of the COPD were, at the relevant time, as follows:

Staff will address transgender prisoners:

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

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

  1. [61]
    ‘Transgender’ is defined in the COPD as follows:

Transgender is a term used to describe all those whose gender identity is at odds with their biological sex.

  1. [62]
    The Member observed that, on one view, by addressing all prisoners by reference to their registered gender, there was no differential treatment. However, the Member found there was differential treatment based on the following alternative analysis:

However, always identifying a prisoner by reference to gender and never by reference to gender identity will always result in differential treatment of the cisgender male prisoner and the male prisoner who identifies as a female. That is because the cisgender male prisoner will always be addressed as a male and by male pronouns, in accordance with his gender identity and the male prisoner who identifies as a female will never be addressed as a female and by female pronouns. Different treatment results from uniform application of the COPD to all prisoners.[32]

  1. [63]
    The Member concluded that this constituted less favourable treatment in circumstances that are the same or not materially different within the meaning of s 10 of the AD Act.
  2. [64]
    We find this categorisation of the treatment to be an error of law. The treatment of Ms Tafao was not less favourable than the treatment of the comparator. All biologically male prisoners were called by male pronouns. This was the same treatment for all, but it resulted in a different impact for Ms Tafao, a prisoner born a biological male who identifies as female. This, in our view, is potentially indirect discrimination, not direct discrimination.
  3. [65]
    In Purvis v New South Wales (Department of Education and Training),[33] the High Court held that the Disability Discrimination Act 1992 (Cth) makes separate and distinct provision for direct and indirect discrimination and that, while it was open to an applicant to plead the same conduct constituted direct discrimination, and, in the alternative, indirect discrimination, the proper characterisation of the conduct was a matter for the court on the basis that the same conduct could not constitute direct discrimination and indirect discrimination.
  4. [66]
    The learned Member’s approach led her to find that the complaint about the use of male pronouns was potentially direct discrimination. That said, the Member ultimately concluded that the treatment was not direct discrimination because it was not done on the basis of the attribute and was reasonable within the meaning of s 319G(2) of the CS Act.
  5. [67]
    We turn then to consider the appeal grounds relating to direct discrimination and the use of male pronouns based on the Member’s approach. 
  6. [68]
    In relation to the first of those grounds, ground 4(A), we do not agree that the Member found the conduct was undertaken in compliance with the COPD. Although that is arguably said at [191] of the Reasons, it is not, on a fair reading of the reasons for decision overall, what the Member found. In paragraphs [80]-[81] of the Reasons the Member makes clear that while the third respondent considered he was complying with the COPD, in her view, the COPD was not ‘crystal clear’. The Member makes no finding as to the proper interpretation of the COPD. The Member finds that it was the second and third respondents’ application of the COPD based on their construction of it that was the basis of the treatment.[34] Accordingly, ground 4(A) does not identify an error made by the Tribunal.
  7. [69]
    The second ground, (ground 4(B)) alleges the Member erred in effect in finding that the application of the COPD was ‘the basis for’ the less favourable treatment within the meaning of s 10 of the AD Act, rather than the attribute of gender identity. The learned Member accepted that the respondents understood the COPD to provide that the prisoners were to be referred to by their name and according to their registered gender. The respondents relied on the information they were provided through the IOMS database which recorded the applicant’s gender as male.
  8. [70]
    The Member found that the respondents referred to Ms Tafao by male pronouns because they were applying the COPD as they interpreted it. The relevant parts of the decision below are as follows:[35]

[79]  The second and third respondents’ submission is that to refer to a prisoner by reference to their gender, not by reference to their gender identity, was treatment consistent with the requirements of the State of Queensland as set out in the COPD. As the COPD was applied to all prisoners, there was no differential treatment which could be less favourable.

[80]  The third respondent’s evidence is that he considered he was complying with the COPD in refusing to address the applicant by reference to her gender identity. The COPD is not crystal clear on that point. However, I can see how the requirement that all records must reflect the prisoner’s gender to ensure consistency of identification could be construed as meaning that the gender noted in the prison’s records is to be used consistently whenever the prisoner is identified, and that identification includes addressing or naming a prisoner.

[81]  On that construction of the COPD there is support for the submission of the second and third respondents that refusing to address the applicant by reference to her gender identity was not different and less favourable treatment of the applicant than the comparator, because all prisoners are identified by their gender alone.

[82]  However, always identifying a prisoner by reference to gender and never by reference to gender identity will always result in differential treatment of the cisgender male prisoner and the male prisoner who identifies as a female. That is because the cisgender male prisoner will always be addressed as a male and by male pronouns, in accordance with his gender identity and the male prisoner who identifies as a female will never be addressed as a female and by female pronouns. Different treatment results from uniform application of the COPD to all prisoners.

[83]  I find that this differential treatment is less favourable to the applicant because of the distress and offence caused by the treatment.

[84]  I find that the applicant has been treated less favourably than the comparator in circumstances that are the same or not materially different.

Was the treatment on the basis of the attribute?

[85]  All parties agree that determining if the treatment was ‘on the basis of the attribute’ as set out in s 10 of the Act, is tested by asking what the real reason for the treatment is. [fn Tung v State of Queensland [2013] QCAT 251, [26]-[50].14

[86]  The applicant submits that there could be no other reason for the deliberate denial of the applicant’s gender identity than her known gender identity. I reject that submission because of the evidence of Mr Walters and Mr Shaddock, which I accept, that application of the COPD was the reason for refusal to use female pronouns in relation to the applicant.

[87]  The Respondents submit that the statements by Officer Ash, which are impugned by the applicant, were made because as a statement of fact. That is, the prison is in fact a male prison. Based on the evidence of Mr Walters, I accept that submission.

[88]  I find that the treatment was not on the basis of the attribute.

  1. [71]
    The concept of direct discrimination is defined by s 10 of the AD Act. Section 10 relevantly provides:

(1) "Direct discrimination" on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

Example—

R refuses to rent a flat to C because—

• C is English and R doesn’t like English people

• C’s friend, B, is English and R doesn’t like English people

• R believes that English people are unreliable tenants.

In each case, R discriminates against C, whether or not R’s belief about C’s or B’s nationality, or the characteristics of people of that nationality, is correct.

(2) It is not necessary that the person who discriminates considers the treatment is less favourable.

(3) The person’s motive for discriminating is irrelevant.

Example—

R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R’s conduct amounts to discrimination against C.

(4) If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.

(5) ……

  1. [72]
    Section 10(1) has been interpreted as requiring the treatment to be ‘on the basis of’ the attribute which has been interpreted to mean that the attribute must be the “real reason” or the “true basis” for the less favourable treatment.[36]  The basis for this approach has been cases from other jurisdictions relying on different statutory formulations, for example, Waters v Public Transport Corporation[37] and Purvis v State of New South of Wales (Department of Education and Training).[38] In both Waters and Purvis, the relevant statutory provisions each expressly required a causative element to be satisfied before direct discrimination was established.
  2. [73]
    That said, the view that s 10(1) requires the less favourable treatment be shown to be “on the basis of” the attribute is also supported by JM v QFG & GK,[39] where Davies JA held:

By s 10(1) direct discrimination on the basis of an attribute happens if a person treats or proposes to treat a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different. By subs (4) if there are two or more reasons why a person treats or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment. The effect of the application of subs (1) and (4) to the present facts, in my view, is that the second respondent directly discriminated against the appellant if and only if a substantial reason for his refusal of treatment was either her lesbian sexual activity or her exclusive lesbianism.[40]

  1. [74]
    Accepting, as we do, that it is necessary to find the attribute was the “basis of” the less favourable treatment, we turn to consider the meaning of “on the basis of”. The phrase “on the basis of” should not be read in a way which defeats the objectives of the AD Act.[41] Those objectives are to be ascertained from the nature, scope and terms of the statute. In our view, whether the differential treatment was ‘on the basis of’ gender identity requires examining the actual or real basis for the conduct, by considering the matters on which the conduct turned.[42] While the mental processes of the respondents will assist with that enquiry, it is not necessary that the person who discriminates considers the treatment is less favourable,[43] or that their motive was to discriminate.[44]
  2. [75]
    In our view, the phrase “on the basis of” should be interpreted as meaning the same as “based on”, “due to” or “because of” or similar phrases: that is, it is to be interpreted as meaning ‘to bring something about or cause it to occur’.. The meaning of “based on” was considered recently in Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba[45] in the context of s 9(1) of the Racial Discrimination Act 1975 (Cth). Section 9(1) provides:

9 (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

  1. [76]
    There, in construing s 9(1), it was held, relevantly, as “settled in the authorities”:

(g) the term “based on” does not connote a relationship of cause and effect, whether in a “but for” or in any other sense. It signifies that the discrimination must be “on” racial grounds: Gerhardy v Brown at 81 (Gibbs CJ). In Macedonian Teachers’ Association at 27, Weinberg J said:

[The] expression [“based on”] does not, of itself, suggest a relationship of cause and effect. It suggests rather a relationship of a different and broader kind. The links between the elements connected by this expression must, no doubt, be real and tangible, but not necessarily causal in nature. To ask whether the manner in which the complainant was treated is in any way referable to his race, colour, descent or national or ethnic origin is not necessarily to ask whether these characteristics “caused” the impugned conduct.

This reasoning was endorsed on appeal: Victoria v Macedonian Teachers’ Association of Victoria Inc [1999] FCA 1287; (1999) 91 FCR 47 at [8] and by the Full Court in Bropho v Western Australia [2008] FCAFC 100, (2008) 169 FCR 59 at [67]-[68]. It means that there must be an examination of the actual basis for the conduct, by considering the matters on which the conduct did turn: Wotton at [551]; and

(h) there must be a close relationship between the designated characteristic and impugned conduct: Macedonian Teachers’ Association at 33.

  1. [77]
    The phrase “based on” was also considered by the High Court in Re East; Ex parte Nguyen[46] in the context of a complaint by a litigant that he had been discriminated against by a Magistrate and the Chief Judge in failing to insist he have an interpreter in the court room, even though he had not requested one. There the majority held:

To identify from these circumstances any act of the magistrate or the Chief Judge as an act “based on race”, within the meaning of subs (1)…involves torturing the language of the statute.[47]

  1. [78]
    Kirby J, who joined in the order dismissing the applicant’s motion but delivered a separate judgment, stated:

Allowing fully for the purpose of s 9(1A) to facilitate proof of the basis for a discriminatory distinction alleged, the sub-section is still aimed at establishing that the person whose actions are alleged to be unlawful has based the acts complained of on the basis of the other person's "race, colour, descent or national or ethnic origin". There appears to be no evidence whatever that, in this case, any such considerations entered into the decisions either of the magistrate or of Chief Judge Waldron. The deeming provisions of s 9(1A) do not fill this gap.[48]

  1. [79]
    The Member applied the correct test in determining whether the treatment was on the basis of the attribute, by asking what the real reason for the treatment was. The Member concluded that the less favourable treatment, as she found it to be, (being called by a pronoun that did not match the gender with which she identified) was not treatment that was meted out on the basis of the attribute of gender identity, but rather on the basis of the second and third respondents’ interpretation of the COPD. The Member did not find, based on the evidence given by the second and third respondents, that they referred to Ms Tafao as “he” because Ms Tafao identified as female. The Member accepted that their reliance on the COPD was genuine in the sense it was the true basis for, or real reason for, the treatment. The finding was open on the evidence before the learned Member, who was in the best position to assess that evidence.
  2. [80]
    That the application of the COPD was the reason for (what the Tribunal found to be) less favourable treatment is a finding of fact. A factual conclusion cannot be treated as an error of law unless it is clear, beyond serious argument, that it is wrong.[49] That a different finding was also open does not demonstrate that the decision based on it is legally erroneous. Here, the applicant contends that the real reason for the ‘active, deliberate denial of the applicant’s gender identity’ was a refusal to acknowledge and respect the applicant’s gender identity, not the application of the COPD. It was open on the evidence, in our view, to find that the references to Ms Tafao were made because of the COPD and due to concern for her safety or for the good order of the prison, and not because she identified as female. This finding is consistent with the Member’s observations in relation to whether there was bad faith on the part of the second and third respondents.
  3. [81]
    In our view the Member did not, as the applicant contends, fail to consider whether the applicant’s gender identity was a reason for the less favourable treatment. The Member found there was only one cause of the less favourable treatment, and that was the application of the COPD by the second and third respondent as they interpreted it. The Member expressly rejected the submission by the applicant that there could be no other reason for the deliberate denial of the applicant’s gender identity than her known gender identity.[50] Once that finding was made, there was no scope for the application of s 10(4) of the AD Act which applies where there are two or more reasons why a person treats someone with an attribute less favourably. Where there is one reason for the treatment, s 10(1) together with s 10(2) and (3) must be applied. Further, even if there were found to be two or more reasons for the treatment which included the applicant’s ‘gender identity’, the Tribunal would have needed to find that the applicant’s ‘gender identity’ was a substantial reason for the treatment which we do not consider was open, in light of the Tribunal’s factual findings.
  4. [82]
    Although as earlier discussed, we do not accept that there was less favourable treatment of Ms Tafao, we find no error in the Member’s approach to the legal test provided for in s 10(1). We find no error in the Member’s factual finding that the real reason for the treatment in relation to the use of male pronouns was the application of the COPD. Further, even if a proper construction of the COPD was that prisoners were to be referred to by their registered name or by the gender with which they identified, that does not mean it was not open to the Member to find that the COPD was the “basis” for referring to the applicant by male pronouns. The construction of the COPD applied by the respondents was not an unreasonable one, although as the learned Member said, its meaning was not ‘crystal clear on that point’.[51] The Member was entitled to accept the respondents’ evidence when they said that they believed they were acting in compliance with it.
  5. [83]
    We note that Mr Walters gave evidence that he accepted calling the applicant ‘Mr’ Tafao minimised any differences between the applicant and other prisoners, which had the effect of negating her gender identity.[52] This acknowledgment by Mr Walters of the result of the treatment does not convert the effect of the treatment into a reason for it.[53]
  6. [84]
    Accordingly, ground 4(B) does not identify an error made by the Tribunal. We turn to consider the grounds based on the Member’s consideration of s 319G, namely grounds 4(C) and (D).

Section 319G

  1. [85]
    The applicant submits, in relation to s 319G(3)(a), that there was no evidence to suggest the security and good order of the centre was improved or maintained by the second and third respondents’ insistence on referring to the applicant as a man and that there was no support for the finding that insisting on calling the applicant a man had any bearing on these “pressing concerns” or was reasonable.
  2. [86]
    Further, the applicant submits that, contrary to the Member’s statement that she had not been provided with submissions in relation to the balance of the matters in s 319G(3), that submissions had been made regarding the matters in s 319G(3)(b), (c), (d), (e), (f), (g), (h) and (i) of the CS Act at [158]-[161] of the applicant’s final submissions to the Tribunal. Further, that the Member by deduction must have considered the factors in s 319G(d), (g) and (h) relevant and yet, did not consider any submissions made about even those matters.
  3. [87]
    Section 319G relevantly provides:

(1) This section applies if a protected defendant treats, or proposes to treat, an offender with an attribute less favourably than another offender without the attribute in circumstances that are the same or not materially different.

(2) For the Anti-Discrimination Act, section 10 the protected defendant does not directly discriminate against the offender if the treatment, or proposed treatment, is reasonable.

(3) In considering whether the treatment, or proposed treatment, is reasonable, the tribunal must consider any relevant submissions made about any of the following –

(a) the security and good order of any corrective services facility in which the offender was detained when the protected defendant treated, or proposed to treat, the offender less favourably;

(b) the cost to the protected defendant of providing alternative treatment;

(c) the administrative and operational burden that providing alternative treatment might place on the protected defendant;

(d) the disruption to the protected defendant that providing alternative treatment might cause;

(e) the budget constraints of the protected defendant;

(f) the resources constraints of the protected defendant;

(g) whether the treatment, or proposed treatment, adequately meets the needs of the offender, notwithstanding the availability of alternative treatment that more ideally meets the needs of the offender;

(h) the need to respect offenders’ dignity;

(i) whether the treatment, or proposed treatment, unfairly prejudices other offenders;

(j) any other matter the tribunal considers relevant.

(4) In a case involving an allegation of direct discrimination by an offender against a protected defendant, the protected defendant must prove, on the balance of probabilities, that the treatment, or proposed treatment, is reasonable.

  1. [88]
    In assessing the reasonableness in the context of the use of male pronouns when addressing the Ms Tafao, the learned Member accepted the evidence of Mr Walters that the treatment must be viewed in context, namely: the 300 person prison was operating at 127% capacity; of the 380 prisoners, 80 were incarcerated for murder; he was trying to manage a very complex and dynamic group every day; and, in terms of making sure he maintained the good order of the centre, referring to the applicant as “Mr” was consistent with operating a high secure male overcrowded prison and protecting the safety of the applicant.[54]
  2. [89]
    The Member said:

[90] I have not been provided with submissions in relation to the balance of the matters referred to in section 319G(3) of the CS Act. Given the conduct complained of, the matters described at paragraphs (b), (c), (e), (f), (i) and (j) are not relevant.

[91] I am satisfied on the balance of probabilities that the security and good order of SQCC was a paramount consideration in the conduct of the second and third respondents. In accordance with section 319G(3)(j) of the CS Act, I consider it relevant that the applicant’s own safety in an overcrowded male prison is a good reason for the second and third respondents not to focus on the applicant’s gender identity as opposed to her gender in their dealings with her. By the same token, I accept the applicant’s evidence that using male pronouns offended the applicant’s dignity. On balance, however, I accept the evidence of Mr Walters that the other issues were the most pressing concerns and that they were reasonable in the circumstances.

  1. [90]
    Mr Walters, the Centre Director of the SQCC gave the following relevant evidence:
  • I think it’s important to put into context. I have Ms Tafao in my centre, a 300 bed prison which is overcrowded by 80, so I’m at 127 per cent of built capacity. I have an overcrowded jail. Of that 380, 80 prisoners are in for murder. I am trying to manage a very complex and dynamic group every day, and I – I think, in terms of – of making sure that I maintain the good order of the centre, referring to Ms Tafao [by] Mister is consistent with operating a high-secure male overcrowded complex centre;[55]
  • I don’t believe it was appropriate [to refer to her as a woman] given that Ms Tafao had engaged in inappropriate behaviour;[56]
  • My concern was for her welfare, for the welfare of the prisoners and the good order of the centre;[57]
  • To highlight the identified gender …may have had negative consequences in terms of either facilitating her behaviour that was occurring or, more importantly, how other prisoners might have then started to behave towards her;[58]
  • I wasn’t ignoring her identity. I was trying to manage the prisoner;[59]
  • At the time it was not about highlighting that prisoner Tafao was female or transgender. It was …not to put that out there and then have adverse response from other prisoners;[60]
  • In explaining why he referred to Ms Tafao by “she” in his affidavit and not in the Centre: within the correctional context…there are complex issues in terms of highlighting…and setting aside somebody that may, in doing that, might bring adverse outcomes to that person;[61] and
  • …I also have a duty of care of protecting every prisoner, including Ms Tafao, in that centre. …on the day she moves out of secure and going to res, she complained about prisoners wanting to have sexual favours with her before she left, pulling their trousers down, etc. So what was always in the back of my mind was to make sure that …no harm came to her.[62]
  1. [91]
    While we accept that the evidence did not establish or support a finding that the use of male pronouns actually improved or maintained good order and security, it was clear from the evidence of those who operated the prison, that they believed that it did. Their opinions are based on their experience in operating prisons and their knowledge of how prisoners react to given situations. In our view, the evidence of Mr Walters provided a basis on which the Member could conclude that the treatment (in this case, the use of male pronouns) was at least consistent with the maintenance of the security and good order of the prison. Moreover, as Mr Walters made clear, he was concerned that the use of the female pronoun would promote disorder. Thus, to highlight Ms Tafao’s identified gender may have had “negative consequences” in the ways he identified. We do not accept that the Member had no evidence upon which to base her conclusion that the use of male pronouns was consistent with maintaining the good order and security of the prison.
  2. [92]
    The Member observed that, given the nature of the relevant conduct, being the use of male pronouns, she did not consider factors s 319G(3)(b), (c), (e), (f), (i) and (j) to be relevant.[63] It is not clear from the reasons for decision why the Member formed that view. Although we disagree with the learned Member’s finding that the treatment was less favourable treatment under s 10 of the AD Act, if we are wrong about that, we would not agree that matters relating to: cost of alternative treatment; the administrative and operational burden of alternative treatment; budget constraints of the respondents; resources constraints of the respondents; whether the treatment unfairly prejudices other offenders; and any other relevant matter, were not relevant.
  3. [93]
    In other jurisdictions, although it has been recognised that deference should be shown to prison authorities due to the countervailing security interests at play,[64] this does not mean that other factors are irrelevant. In Johnson v California,[65] the United States Supreme Court recognised that an interest in preserving order and safety within a prison cannot always save discriminatory policies. There, segregating inmates by race upon arrival to a new facility was held to violate the plaintiff’s Fourteenth Amendment right to equal protection. The prison authorities’ interest in preventing racial violence did not justify the infringement. Relevantly here, s 319G does not refer to the good order and security of the prison as the sole or even paramount consideration and recognises that other factors are also relevant.
  4. [94]
    While the resource implications of alternative treatment is relevant, it has been held that, in the context of a public institution, they must be “clear and weighty” if they are to justify infringing human rights. For instance, in R (on the application of AB) v Secretary of State for Justice,[66] in considering whether treatment of a transgender prisoner was proportionate in view of the extra costs and resource implications of alternative treatment, it was held:

When issues so close to the identity of a prisoner as here, so intimately concerned with her personal autonomy, the deployment of resources as a justification for the infringement of such rights must be clear and weighty in order to be proportionate.[67]  

  1. [95]
    Here, there was no evidence of the cost of implementing a practice which required prison staff address transgender prisoners according to their acquired gender. The applicant submitted that any cost would be less than the cost and administrative burden incurred by the respondents in responding to Ms Tafao’s complaints of discrimination. If it was necessary, we would find that the cost or resources implications were not of sufficient weight to justify the discriminatory practice of using male pronouns to address Ms Tafao and are factors which support the view that the treatment was not ‘reasonable’ within the meaning of s 319G(2).
  2. [96]
    Further, we would consider that any unfair prejudice to other transgender offenders or to prisoners who supported non-discriminatory treatment of prisoners was also relevant, although we accept that there was little evidence about this. Ms Tafao says in one of her letters of complaint to the third respondent:

Going back to res is no longer important to me than the urge I have right now to bring some light to the unfair and discriminatory way Transgender inmates are dealt with in this prison. Imagine if I was a Transgendered inmate that wasn’t strong willed or strong minded and had to put up with the treatment your staff are dealing me, it would lead them to suicide and if I can be a voice that would prevent that then so be it…. I am not the first transsexual to come through your doors and I won’t be the last and I hope at the time the next one arrives your staff would have had some training in dealing with the modern world and people (Human beings) that are genetically encoded differently from them, we don’t choose to live a hard life, “what sane person would? It’s just who we are just like you being straight, Gay or a lesbian or bi-sexual.[68]

  1. [97]
    We would consider that the treatment did not adequately meet the need of the applicant to have her gender identity respected, nor respect her dignity by having her gender identity recognised.
  2. [98]
    We would also consider that subsequent amendments to the COPD, which provide that transgender prisoners are to be referred to consistently with the gender with which they identify, are also relevant to whether the treatment allegedly authorised by the COPD at the time was reasonable. The terms of the Deputy Commissioner Instructions,[69] and the current COPD, were annexed as Exhibits to the Affidavit of Mr Peter Shaddock of 4 October 2017 which was received into evidence at the Hearing below.[70] This matter, in our view, is captured by s 319G(3)(j) which permits the tribunal to consider submissions about any other matter it considers relevant.
  3. [99]
    These factors, in our view, weigh in favour of a conclusion that the treatment was not ‘reasonable’ within s 319G(2).
  4. [100]
    That said, we agree with the learned Member that the security and good order of the prison under s 319G(3)(a) and the protection of Ms Tafao’s personal safety as a transgender female in an overcrowded male prison in the context of her own problematic conduct were important considerations.
  5. [101]
    In our view, the omission of the learned Member to consider all of the factors in s 319G(3) was not, of itself, an error. The factors themselves were not mandatory considerations. Section 319G(3) provides only that the tribunal must consider “any relevant submissions” made about any of the matters (a)-(j). However, the applicant submits that they made submissions regarding the balance of the matters in s 319G(3)(b)-(j) which were not taken into account by the Member. In summary, those submissions were:
  • It would not have cost more, or imposed a greater administrative or operational burden on the respondents, to call her by female pronouns. Rather it would have alleviated the administrative, operational and resource drain caused by the need to respond to Ms Tafao’s complaints of discrimination;
  • Using female pronouns was consistent with the AD Act and would not cause Ms Tafao to feel demeaned, belittled, humiliated and insulted;
  • Ms Tafao’s dignity required that she be treated in a manner consistent with her gender identity, at least by those who were on notice of her gender identity. This was a ‘need’;
  • The treatment was inconsistent with the COPD at the relevant time and is patently inconsistent with the current COPD;
  • There was no evidence the respondents even considered the ease with which they might acknowledge and respect the applicant’s gender identity; and
  • Other inmates with gender identity and those who empathise with those who are discriminated against on the basis of gender identity would be “unfairly prejudiced” by the treatment. 
  1. [102]
    The Member did, as discussed earlier, take into account, at least, the effect of the treatment on the applicant’s dignity, and on a fair reading, perhaps her need to have her gender identity respected. [71]  However, without putting too fine a distinction on it, we note that the applicant’s submission went slightly further than the Member’s consideration, namely, that there was a ‘need’ to respect her dignity. We accept that the ‘need’ to respect her dignity is different from consideration of any offence caused to the applicant’s dignity. We would accept that this need and the other submissions outlined above made by Ms Tafao are relevant to the matters in s 319G(3) and should therefore have been considered by the Tribunal (in light of its finding that Ms Tafao was treated less favourably than the comparator) in determining whether the treatment was reasonable within the meaning of s 319G(2). That the respondents under s 319G(4) bore the onus of proof, on the balance of probabilities, that the treatment was reasonable, does not mean any submissions made by the applicant addressing that issue were irrelevant.
  2. [103]
    The applicant made brief submissions about the treatment being inconsistent with the current COPD in applying s 319G(3)(g) (not s 319G(3)(j)), at [159] of their submissions:

Denying the applicant’s gender identity is not available, reasonable, lawful treatment and it is not treatment consistent with the COPDs in place at the relevant time and it is patently inconsistent with the current COPDs.  

  1. [104]
    That submission, in our view, is in effect that the treatment was not reasonable and was inconsistent with the COPDs in place at the time and the current COPD. This does not address the point that we would make that the fact of the current COPD’s implementation supports the view that the treatment was not reasonable because it could, as evidenced by the revised COPD, have been avoided. 
  2. [105]
    Therefore, if it was necessary, we would find that the learned Member erred in omitting to consider submissions made by the applicant about matters in s 319G(3) other than the security and good order of the prison, Ms Tafao’s personal safety and the offence to her dignity.
  3. [106]
    A decision as to whether the conduct was ‘reasonable’ was ultimately a question of fact but the resolution of that fact required the Tribunal to have regard to the matters in s 319G(3). The failure by the Member to give adequate consideration to the relevant submissions made by the applicant about certain factors in s 319G(3) is an error of law.
  4. [107]
    For the reasons above, although we have found that the learned Member erred in failing to properly take into account the applicant’s submissions in respect of matters in s 319G(3), we ultimately agree with the Member’s conclusion that there was no direct discrimination, although for different reasons. Accordingly, although there was an error disclosed in respect of ground 4(C), it is not material to the outcome.
  5. [108]
    However, if we are wrong in our conclusion in relation to the latter, and the treatment did constitute direct discrimination we would find that, although the matter is finely balanced, taking into account all the submissions made including regarding the respondents’ subsequent conduct, the treatment was not reasonable within the meaning of s 319G(3). 
  6. [109]
    We have given due weight to the evidence of Mr Walters as to why he used the male pronoun in respect to the applicant. We accept that he honestly held the views he espoused, and that the view he held was one reasonable view. However, the test of reasonableness is an objective one. The difficulty we have, in this objective context, is reconciling Mr Walters’ views with the position subsequently adopted by the respondents. We also consider the treatment was not reasonable for the following reasons:
    1. (a)
      there would be no cost of the alternative treatment;
    2. (b)
      there was no increased administrative or operational burden associated with the alternative treatment;
    3. (c)
      there were no relevant budget constraints;
    4. (d)
      it was inconsistent with the need of Ms Tafao to have her dignity respected;
    5. (e)
      the treatment did not adequately address her needs; and
    6. (f)
      further, the revised COPD implements the alternative treatment.
  7. [110]
    However, having concluded that there was no direct discrimination with respect to the use of male pronouns, we find that the Member’s error in finding the treatment reasonable within the meaning of s 319G(3) also did not affect the outcome.
  8. [111]
    Accordingly, we find no error in respect of grounds 4(A) and 4(B) and, while we find error in grounds 4(C) and 4(D), the error in respect of those grounds does not affect the outcome. That is so because we agree with the Member that the use of male pronouns did not constitute direct discrimination.
  9. [112]
    Ground 4(E) is considered below.

Ground 4(F)-(J): Direct Discrimination – the imposition of the functional IMPs

  1. [113]
    The applicant submits the Member erred in finding:
  • that in imposing the Functional IMPs, the second and third respondents did not require the applicant to ‘mitigate transgendered behaviour’ and that there was direct discrimination as a result of the objective of the IMP that the applicant ‘mitigate her sexually-laden behaviour’ (ground 4(F) and ground 4(G));
  • that a cisgender comparator in circumstances that are the same or not materially different would be treated in the same way as the applicant (ground 4(H));
  • that the treatment was not on the basis of the attribute of gender identity (ground 4(I)); and
  • that the respondents’ conduct was reasonable in the circumstances pursuant to s 319G(3) of the CS Act (ground 4(J)).
  1. [114]
    The applicant submits that her need to be addressed as a woman, using female pronouns, as well as her inability to ‘mitigate her explicitly transgender behaviour’ and her need not to be told to, are characteristics of her gender identity. This submission was rejected by the Member.[72] The applicant submits that reading the Functional IMPs as requiring the applicant to mitigate sexually laden behaviour but not to ‘mitigate transgendered behaviour’ ignores the plain language used. Further, the Member’s finding that the IMPs were not impossible to achieve ignores the impact of the IMPs on the applicant and ignoring her gender identity, which is not discretionary.
  2. [115]
    The applicant also submits that the Member erred in failing to find that the active denial of the applicant’s gender identity was less favourable treatment on the basis of the applicant’s known gender identity.
  3. [116]
    Finally, in finding that the imposition of the IMPs was reasonable within the meaning of the CS Act, the applicant submits the Member erred in failing to have regard to the applicant’s submissions regarding s 319G(3) of the CS Act.
  4. [117]
    The respondents’ submit that the requirements in the IMPs were to make the applicant stop sexually-laden behaviour, not to stop her being transgender. Further, that any prisoner who engaged in sexually-laden behaviour would be treated the same way. The respondents submit that the behaviour complained of was not characteristic of the protected attribute of ‘gender identity’ and the Member was entitled to arrive at that finding. Further that there was no error in the Member’s finding that the IMPs were reasonable.

Consideration of grounds 4(F)-(J)

  1. [118]
    The submissions of the applicant in relation to ground 4(F) depend upon a finding that sexually-laden behaviour is a characteristic of transgender behaviour or of people with the attribute ‘gender identity’. The applicant conceded that it was not. The learned Member accepted that submission and she did not err in doing so. Therefore, ground 4(F) does not disclose an error.
  2. [119]
    The applicant submits in relation to ground 4(G) that the IMPs required her not only to mitigate sexually-laden behaviour, but also to ‘mitigate transgender behaviour’ and that the Member was in error in finding that the IMP did not require this. The Member interpreted the IMPs as follows:

The IMPs do not say that the applicant should mitigate her gender identity. I understand the applicant’s submissions to be that feminised behaviour is not discretionary and cannot be changed to act in a way inconsistent with one’s gender identity. The applicant has construed the reference in the IMP’s to transgendered behaviour as a reference to behaviour integral to her gender identity. That is not a fair reading of the IMPs. The author of the IMPs has sought to define the transgendered behaviour which is contributing to the threat to the applicant’s safety and security. The IMP refers to the applicant as being characterised by androallure (attraction to men) and anticipatory states of sexual arousal. It is said that sexual flirtation is a prominent feature of the applicant’s behaviour at SQCC, exhibited by skipping, wearing flowers in her hair and adopting a feminised behavioural disposition. There is no example given for the latter phrase, however, it is coloured by being included as an act of sexual flirtation….

The IMPs further refer to ‘provocative, sexually-laden behaviour’. Also, ‘overtly feminised and sexually-laden behaviour’. The words are linked. It is the sexually-laden behaviour which is being addressed. The applicant agrees that sexualised behaviour is not a characteristic of gender identity.[73]

  1. [120]
    The Member found that the IMPs did not require the applicant to curb general behaviours consistent with her identified gender, but to curb sexually provocative behaviour which, in the prison context, could put her at risk of harm and threaten the good order of the prison. The Member construed the IMPs as a whole and we see no error in her approach to the construction of the documents. The Member took a substantive approach to the IMPs. We agree that the overall tenet of the IMPs, which were preceded by a history of bad behaviour by the applicant, was to curb that behaviour. We find that the conclusion of the Member was open on the face of the IMPs and surrounding circumstances. Accordingly, no error is identified in ground 4(G).
  2. [121]
    Further, the Member was entitled to find on the evidence before her that a male prisoner without the attribute of gender identity, but who acted in the same sexually overt way, would have been treated the same way. The comparator applied was a cisgender male in a male prison in 2015; where the conduct of the prison is set in a statutory, policy and operational framework; and the comparator engages in sexualised behaviour.
  3. [122]
    The Member found a cisgender comparator in circumstances that were the same or not materially different would have been treated the same way as the applicant essentially because a cisgender prisoner would also have been asked to “mitigate sexually-laden behaviour”. The Member found on the basis of Mr Walter’s evidence that, if the comparator had engaged in sexualised behaviour which threatened his safety, he would have been asked to mitigate that behaviour as a means of ensuring his protection.[74]
  4. [123]
    That conclusion was open to the Member. Accordingly, there is no error disclosed in ground 4(H).
  5. [124]
    We turn to consider ground 4(I), that the Member erred in finding the treatment was not on the basis of the attribute of gender identity.
  6. [125]
    The learned Member accepted the evidence of the respondents that the reason for the imposition for the IMPs was to curb bad behaviour which threatened the safety of the applicant and the good order and functioning of the prison. The Member accordingly concluded that the treatment constituted by the imposition of the IMPs was not on the basis of the attribute of gender identity.[75]The Member found that the IMPs were to curb bad behaviour or sexualised behaviour and that this, as the applicant agreed, was not behaviour characteristic of the applicant’s transgender status.[76] This finding was open to the Member. The Member’s interpretation of the IMPs, as discussed above, was open to her and she was entitled to accept the evidence of the respondents. There is no error in finding that an IMP which focuses on mitigating behaviour which does not come within the characteristic extension of the gender identity attribute, is not less favourable treatment on the basis of the attribute.
  7. [126]
    Therefore, no error is disclosed by ground 4(I).
  8. [127]
    For similar reasons to the application of s 319G in relation to the use of male pronouns, the Member found the imposition of the IMPs was reasonable within the meaning of s 319G(2) of the CS Act. Again, the learned Member omitted to have express regard to some of the applicant’s submissions in relation to the matters in s 319G(3) as they applied to the treatment constituted by the imposition of the IMPs. If it was necessary, once again we would find, although an error, it did not affect the outcome given that we agree with the learned Member on considering the issue of reasonableness afresh in relation to the IMPs, that the treatment was reasonable within the meaning of s 319G(3). 
  9. [128]
    The issue of reasonableness in the context of an IMP which purports to address overt sexualised behaviour of a transgender female prisoner in a male prison raises difficult issues. Clearly in the context of the overcrowded high security male prison the respondents must reasonably be entitled to impose boundaries on acceptable behaviour for the safety of Ms Tafao. If this is taken too far it has the potential to undermine the purpose of the protection against discrimination on the basis of ‘gender identity’. In R(AB) v Secretary of State,[77] albeit under the Gender Recognition Act 2004 (UK) in relation to the treatment of a transgender prisoner who retained physiological aspects of their birth assigned gender, it was held that similar considerations of safety and good order  did not justify regarding the applicant as “anything other than a woman except to the extent strictly necessitated by the relevance of the claimant’s pre-operative physical state to the functioning of the prison.”[78] 
  10. [129]
    That said, the Member found on the basis of all the evidence that the IMPs were about managing Ms Tafao’s disruptive behaviour, not preventing her from identifying as a woman. The terms of both IMPs were outlined in detail by the Member at [101] of the Reasons. The Member read the IMPs against the background of the history of Ms Tafao’s conduct within the SQCC. These included numerous warning notices and correspondence from the third respondent to Ms Tafao about her behaviour which included being in the cells of other prisoners, rolling around on a mattress with another prisoner in the common area and bouncing on the lap of another. This behaviour was regarded as seducible, sexually-laden behaviour which was not a characteristic of her gender identity, and which put her safety and the good order and security of the prison at risk.
  11. [130]
    The prison must have the ability to regulate behaviour without fear of being held to be discriminatory for imposing restrictions on overt sexualised behaviour.  In our view, the conduct which involved transgressing reasonable prison boundaries had to be addressed. That conduct involved Ms Tafao’s “sexually-laden behaviour”. If it was necessary to do so, we would find that it was reasonable to impose an IMP in the terms they were imposed to curb that behaviour. The Member found that to be the case. Given her findings that the treatment of Ms Tafao was not less favourable to that of the comparator, we would consider that she was not required to do so (since s 319G only applies if it becomes necessary to consider whether the treatment was reasonable). Therefore, although the Member omitted to consider Ms Tafao’s submissions made about the factors in s 319G(3), that error once again did not affect the outcome.
  12. [131]
    That said, we have considered all the submissions made about s 319G(3). In case we are wrong and if it was necessary for us to do so, we would find that the treatment was reasonable in the circumstances. Once again, it is a fine balancing act. We have found it to be reasonable for the following reasons:
    1. (a)
      The applicant had repeatedly breached prison rules including by being with other prisoners in units in which she was not accommodated and being captured on CCTV in an embrace with another prisoner on the mattress on the floor of a unit in which the prisoner was not accommodated and on another occasion bouncing up and down on the lap of another prisoner;
    2. (b)
      The applicant had received repeated warnings about the abovementioned breaches;
    3. (c)
      The applicant engaged in aggressive and verbally abusive behaviour towards staff and other prisoners;
    4. (d)
      The applicant’s conduct put at risk the good order and security of the prison;
    5. (e)
      If the IMPs had not been imposed this would have placed an increased administrative and operational burden on the respondents in managing the applicant;
    6. (f)
      If the IMPs had not been imposed, there would have been continued disruption to the effective running of the prison;
    7. (g)
      We infer that there would have been extra costs associated with the likely continued disruption caused by Ms Tafao’s unchecked behaviour;
    8. (h)
      The IMPs were formulated in consultation with Ms Tafao, thereby adequately meeting the needs and respecting the dignity of Ms Tafao; and
    9. (i)
      The IMPS were necessary for the protection of Ms Tafao’s own personal safety.
  13. [132]
    Accordingly, we find that grounds 4(F), 4(G), 4(H) and 4(I) do not disclose an error. In respect of ground 4(J), although we have found error in that the Member did not consider all of the submissions made by the applicant in respect of those matters in s 319G(3), upon a consideration of all the matters required to be considered, we also find the treatment, here the imposition of the relevant IMPs, was reasonable. Consequently, the error in respect of ground 4(I) is not determinative of the appeal.
  14. [133]
    The ground in 4(K) is considered below.

Ground 5(A)-(C): Indirect discrimination – a term that the applicant be a man

  1. [134]
    The applicant submits the Member erred in finding:
  • A term could not have been imposed (ground 5(A));
  • The respondents did not impose a term (ground 5(B));
  • That the term was reasonable within s 11 of the AD Act and s 319H(2) of the CS Act (ground 5(C)); and
  • That the conduct was not in bad faith (ground 5(D)).
  1. [135]
    The applicant submits that the Member’s finding that no term was imposed that the ‘applicant be a man because the applicant was a man’ is inconsistent with the protected attribute of gender identity and its characteristics of living and seeking to live as a member of the female sex.
  2. [136]
    Further, the applicant submits the Member failed to give consideration to the applicant’s submissions regarding the reasonableness of the term pursuant to s 11(1)(c) of the AD Act. These included that the term had no utility; the effect of the term on the applicant; the alternate courses available to the respondents to imposing the term; and that the term was inconsistent with the COPD in place at the time. Further the Member failed to give proper consideration to the applicant’s submissions regarding the matters in s 319H(2) of the CS Act. Further, Ms Tafao submits that the learned Member erred in finding the imposition of the term was reasonable. The respondents, it is argued, gave no consideration to not imposing the term and to taking a course that involved acknowledging and respecting Ms Tafao’s gender identity, as acknowledged, she submits, by the third respondent at the hearing.[79]

Consideration of grounds 5(A)-(C)

  1. [137]
    We discussed the issue relating to the imposition of the term above in consideration of ground 3. We have found, for the reasons above, that the Member erred in finding a term that the applicant identify as a man had not been imposed because the applicant was a man. We find this constituted an error of law in the application of s 11(1)(a) of the AD Act to the facts as found.
  2. [138]
    We find that a term was imposed, that the applicant ‘be a man’ or ‘that the applicant ignore her gender identity when being addressed’, which was inconsistent with her gender identity. The reframed term was considered by the learned Member even though, as the first respondent submitted, in its view that was not the term the second and third respondents came to meet. Describing the term for the purposes of s 11 is a question of fact.[80] The Tribunal is not bound by an applicant’s formulation of a term.[81] It is the duty of the Tribunal to ascertain the actual position, which includes whether the respondents have truly sought to impose a term which is discriminatory and not reasonable within the meaning of the AD Act.[82]
  3. [139]
    The term that the applicant “be a man” could (and was considered by the Tribunal in making observation in the alternative), in our view, have sensibly been construed to mean that the applicant ‘identify as a man’. This interpretation was consistent with the tenor of the applicant’s submissions (that is, that the applicant’s gender was female). Construed in this way, in our view, the term that the applicant ‘identify as a man’ was imposed indirectly by the second and third respondents’ interpretation and application of the COPD as requiring them to address all prisoners by their registered name or gender and by correspondence from the third respondent which referred to Ms Tafao as “he” and reiterated that male pronouns would be used to address Ms Tafao and by referring to Ms Tafao as “he” in the IMPs.
  4. [140]
    Another potential source of the term was the content of the IMPs which, Ms Tafao submits, required that she ‘mitigate her transgender behaviour’. Given our findings above that the term was imposed, it is not necessary for us to consider whether the term that Ms Tafao be a man was also imposed by the IMPs. If it was necessary, we would find that the IMPs did not in that sense impose such a term because the IMPs addressed sexualised behaviour, not transgender behaviour.
  5. [141]
    The term that the applicant ‘be a man’, or the re-framed term that the applicant ‘ignore her gender identity when being addressed,’ was imposed by the second and third respondents in purported reliance on, and application of, the terms of the COPD. It is not clear whether the term was imposed by the first respondent. The learned Member made no finding as to the proper interpretation of the COPD, as it then was, and the issue of its construction is not raised as a ground of appeal. Accordingly, we consider that the issue of whether the term was imposed by the first respondent does not arise. However, and although it seems otiose, if it was necessary for us to do so, for the same reasons as discussed above, we would reject the proposition that the term was not imposed because the applicant was a man.
  6. [142]
    The applicant submits that the Member failed to give consideration to her submissions regarding reasonableness under s 11(1)(c) of the AD Act, referring to the submissions made at [171]-[178]. The applicant made the following submissions: the relevant test is less demanding than one of necessity but more demanding than a test of convenience; the test is objective which requires the court or tribunal to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other; the term had no utility because of the applicant’s gender identity which means she is a woman; the effect of the term on the applicant; alternate courses open to the respondents; and that the term was inconsistent with the COPD at the time. In particular, adopting an alternate course that accommodated the reality that transgender prisoners are accommodated at the SQCC from time to time, and which resulted in the applicant’s gender identity being acknowledged, would have cost nothing, had no discernible adverse consequence and would have had the constructive consequence of respecting the applicant’s gender identity. The conduct of the respondents was also not constructive of any positive outcome identified or identifiable.
  7. [143]
    The Member outlines at [184] of the Reasons the relevant test of reasonableness referred to by the applicant and summarises the submissions made by the applicant at [185]-[186].
  8. [144]
    The Member then deals with the issue of reasonableness under s 11 of the AD Act together with reasonableness under s 319H of the CS Act at [191] – [193] of the Reasons, as follows:

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

I do not accept the submissions of the applicant directed to the elements of s 319H of the CS Act which go to the administration and operation of SQCC. Mr Walters is best placed to give evidence on those matters and I accept his evidence. I do not think issues of cost are relevant to the question at hand.

I accept that the use of male personal pronouns caused the applicant distress. However, in weighing that against what I find to be the genuinely held reasons for doing so, and the broader implications for the safe operation of the prison, I find that it was reasonable to address the applicant by reference to her gender not gender identity and implicitly to require the applicant to ignore her gender identity when being addressed.[83]

  1. [145]
    Section 11 of the AD Act provides:

Meaning of indirect discrimination

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

(a) with which a person with an attribute does not or is not able to comply; and

(b) with which a higher proportion of people without the attribute comply or are able to comply; and

(c) that is not reasonable.

(2) Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example

(a) the consequences of failure to comply with the term; and

(b) the cost of alternative terms; and

(c) the financial circumstances of the person who imposes, or proposes to impose, the term.

(3) It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.

(4) In this section "term" includes condition, requirement or practice, whether or not written.

Example 1

An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.

Example 2

An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress.

  1. [146]
    Section 319H of the CS Act provides as follows:

319H When term imposed on offender by protected defendant is not indirect discrimination

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

(a) with which an offender with an attribute does not or is not able to comply; and

(b) with which a higher proportion of offenders without the attribute comply or are able to comply.

(2) In considering whether for the Anti-Discrimination Act, section 11 (1) (c) the term is reasonable, the tribunal must consider any relevant submissions made about any of the following

(a) the security and good order of any corrective services facility in which the offender was detained when the protected defendant imposed, or proposed to impose, the term;

(b) the cost to the protected defendant of imposing an alternative term;

(c) the administrative and operational burden that imposing an alternative term might place on the protected defendant;

(d) the disruption to the protected defendant that imposing an alternative term might cause;

(e) the budget constraints of the protected defendant;

(f) the resources constraints of the protected defendant;

(g) whether the imposing of, or proposal to impose, the term adequately meets the needs of the offender, notwithstanding the availability of an alternative term that more ideally meets the needs of the offender;

(h) the need to respect offenders’ dignity;

(i) whether the imposing of, or proposal to impose, the term unfairly prejudices other offenders;

(j) any other matter the tribunal considers relevant.

(3) In this section

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

  1. [147]
    In relation to the Member’s consideration of s 319H(2) of the CS Act, the applicant referred to her submissions in relation to s 319G(3).
  2. [148]
    The Member found the term, that the applicant ignore her gender identity when being addressed, was reasonable because it:
  • was undertaken by the second and third respondents in compliance with the COPD (as they understood it);
  • for the security and good order of the prison; and
  • for the safety of the applicant.
  1. [149]
    The Member did not accept the submissions of the applicant, directed to the elements of s 319H(2), were directed to “the administration and operation of SQCC” and did not consider issues of cost relevant. In our view the Member was entitled to reject the submissions of the applicant regarding matters relating to the administration and operation of the corrective services facility. The Member preferred the evidence of the respondents in this regard, and there is no error in doing so. However, in our view, submissions relating to the issue of cost are relevant. If there is no cost in implementing the alternative treatment, then the absence of cost is a relevant factor. The legislature, in setting out a range of factors relevant to the question of ‘reasonableness’, have attempted, in our view, to ensure that the approach to the question of ‘reasonableness’ is a balanced one. 
  2. [150]
    Further, as we have considered above in relation to s 319G(3), there is no consideration of the fact that the current COPD requires transgender prisoners to be referred to in a manner consistent with their gender identity. We consider this relevant under s 319H(2)(j). Finally, as the applicant submitted, repeated written requests were made by Ms Tafao to the third respondent to be called by her name, Leilani, if she could not be called “she”. Ms Tafao emphasised that she found being called “he” or “him” highly distressing and offensive. We note that this suggestion to call Ms Tafao by her name, which was an option under the terms of the COPD, was not implemented. This is also relevant, in our view, under s 319H(2)(j), in considering whether the respondents’ treatment in continuing to refer to her by male pronouns was reasonable.
  3. [151]
    Although the Member did consider relevant submissions made about the good order and security of the prison together with its administration and operation, she did not, in our view, consider the submissions made by the applicant which were relevant to other factors in s 319H(2) and under s 11(2) of the AD Act. We consider that the Member erred in failing to consider those submissions.
  4. [152]
    For the reasons discussed earlier in considering reasonableness in relation to grounds of appeal 4(C) and (D), we again find after a fine balancing act that the conduct was not reasonable.
  5. [153]
    We therefore set aside the Member’s findings that there was no indirect discrimination because there was no term imposed and, if there was, that the treatment was reasonable. We find that the treatment in referring to Ms Tafao by male pronouns was indirect discrimination and that the treatment, for the reasons above, was not reasonable within the meaning of s 11(1)(c) of the AD Act and s 319H(2) of the CS Act.
  6. [154]
    Accordingly, in respect of grounds 5(A), (B) and (C) we find the appeal grounds made out. The ground in 5(D) is considered below.

Ground 4(E), 4(K) and 5(D): Bad Faith

  1. [155]
    The applicant submits that the Member erred in finding that the second and third respondents did not act in bad faith within the meaning of s 319I of the CS Act.
  2. [156]
    The respondents submit that, as the term ‘bad faith’ is not defined in the CS Act, the Member was correct in referring herself to appropriate authorities in order to ascribe meaning to the term. It was submitted that the exercise of assessing whether the second or third respondents acted in bad faith is akin to an assessment of credit and that appeals against such assessments are significantly restricted to only the most limited circumstances. The respondents submit that no such circumstances exist here and the Member carefully evaluated the evidence of the third respondent, including the way in which he gave his evidence, in concluding he did not act in bad faith. That the applicant does not agree with the assessment, is not, in itself an indication of error.
  3. [157]
    We would find no error in the Member’s approach with respect to whether there was ‘bad faith’ by the respondents within the meaning of s 319I of the CS Act.
  4. [158]
    The issue was a question of fact for the Member. The exercise of assessing whether a person has acted in bad faith is akin to an assessment of credit. Appeals of such assessments are significantly restricted to only the most limited of circumstances.[84] The Member relied upon her assessment of the evidence of key witnesses in arriving at her conclusion. This involved assessments as to the credit of those witnesses. It has been held that an appeal is no occasion for the retrial or second guessing of questions of fact (when the findings were open on the evidence) or credit that are the province of the primary decision maker.[85]
  5. [159]
    Whether the COPD was misinterpreted does not alter the position that the purported compliance with the COPD was the real reason for the treatment. The COPD relevantly provided:

Staff will address transgender prisoners:

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

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

  1. [160]
    Whether the COPD was correctly interpreted is not the point provided the interpretation was a reasonable one and the respondents believed they were acting in accordance with it. The argument in effect is that the Member should not have concluded they were following the COPD because their interpretation did not align with the interpretation adopted by the applicant. Accordingly, we find no error in the Member’s approach.
  2. [161]
    We would accept, as did the Member, the unique security concerns and challenges that may arise when a transgender male to female prisoner is incarcerated in, and presents herself as a female in, a male prison. The reality of prison administration, including the need for prison officials to take reasonable measures to guarantee the safety of the inmates and to maintain good order and security, is clearly relevant to whether officials acted in bad faith (as it was also relevant and weighed heavily for us in considering reasonableness as discussed earlier). We accept that the respondents were motivated by concern for Ms Tafao’s personal safety and that the imposition of the IMPs were measures aimed at reducing the risk of her being the target of sexual assault or victimisation. We find no error in the Member’s finding with respect to bad faith in relation to the imposition of the IMPs.
  3. [162]
    The applicant also submitted that the Member erred in finding that when Officer Ash said: “what lady, there’s no lady here, only a man, this is a man’s prison” that he was making a factual comment. Again, this argument depends upon whether when the officer referred to ‘man’ he was referring to the applicant’s sex or her gender identity. We would accept that if the officer was referring to her biological sex then the comment was factual. However, with respect, that analysis misses the point. That the comment may have been factually correct in that sense does not mean it was not disrespectful of the applicant’s gender identity and her need to have her dignity respected.
  4. [163]
    Having said that, even if we were to accept that the comment was on the balance of probabilities made in bad faith and offensive to the applicant, we would not consider that the comment in these circumstances was such as to demonstrate bad faith on the part of the respondents. The comment was made by way of a quick retort by the officer in response to a comment by another inmate. It was made spontaneously and without sufficient consideration, in our view, for the officer to have formed the necessary state of mind.
  5. [164]
    While we would disagree with the Member’s approach to the statement by the officer, we would find that it was not evidence of bad faith on the part of the respondents. 

Conclusion

  1. [165]
    In light of the important issues raised in the proceeding and our conclusions, we grant leave to appeal.
  2. [166]
    In summary, in respect of the complaint of direct discrimination, we find that there was error in relation to the treatment by the respondents in using male pronouns to address or refer to the applicant by omitting to consider the submissions made by the applicant in relation to the factors in s 319G(3) of the CS Act and in finding the treatment was reasonable within the meaning of s 319(G)(2) of the CS Act. We do not agree that this treatment was reasonable when submissions in relation to all the factors in s 319G(3) are considered. Having said that, we find that the use of male pronouns was indirect discrimination, not direct discrimination. The treatment was the same for all the prisoners; it was the impact of that treatment that was different. In our view, that is indirect discrimination. We do not find therefore that the Member’s error with respect to her consideration of whether the treatment was ‘reasonable’ within the meaning of s 319G was material because, in our view, the use of male pronouns was not direct discrimination.
  3. [167]
    We find that the Member did not err in finding that the imposition of the IMPs did not constitute direct discrimination. The Member found the IMPs were not imposed on the basis of Ms Tafao’s gender identity; and, that if they were, the imposition of the IMPs was reasonable within the meaning of s 319G(3). For that reason, the error made in failing to consider all the factors in s 319G(3) (ground 4(J)) in considering whether the conduct was reasonable, was not determinative of the appeal.
  4. [168]
    In relation to indirect discrimination and the use of male pronouns, we find that the Member erred in finding that a term to be a man, or to ignore her gender identity while being addressed, could not have been imposed because she was a man and that the Member erred in finding no term was imposed. With great respect, we also find that the Member erred in omitting to consider all submissions in relation to the factors in s 319H(2) of the CS Act in considering whether for s 11(1)(c) of the AD Act, the term was reasonable. We therefore set aside the Member’s finding that there was no indirect discrimination by use of male pronouns.
  5. [169]
    We find that there was indirect discrimination by application of the COPD which resulted in the imposition of a term or practice whereby the applicant was required to ‘be a man’ or ‘to identify as a man’. This term could not be complied with by the applicant because in order to do so she needed to compromise her ‘gender identity’.[86] A higher proportion of prisoners without the attribute could comply with it. Finally, in our view, having taken into account relevant submissions about factors in s 319H(2) of the CS Act, the term was not reasonable under s 11(1)(c) of the AD Act.
  6. [170]
    The term was not reasonable for the following reasons:
    1. (i)
      First, the use of the word ‘she’ would have been consistent with the need to respect Ms Tafao’s dignity.
    2. (ii)
      The use of the word ‘she’ could have occurred with little or no resource implications.
    3. (iii)
      Nor would the use of the word ‘she’ have imposed any significant administrative or operational burden on the respondents.
    4. (iv)
      We also do not consider that the evidence showed it would have exposed Ms Tafao to any undue safety risks or would have been disruptive to the good order of the prison.
    5. (v)
      Finally, we note that since Ms Tafao’s complaint, the COPD has been amended so that now any transgender prisoners are to be referred to in a manner consistent with the gender with which they identify.
  7. [171]
    Although we find that there was indirect discrimination by the use of male pronouns in addressing and referring to Ms Tafao, we do not find any reason to disturb the findings of the Member that there was no bad faith on the part of the respondents. For that reason, it follows that a remedy of compensation is not available, by the terms of the CS Act, to Ms Tafao.[87]
  8. [172]
    Under s 319I of the CS Act the tribunal may make a compensation order only if it finds that the contravention happened because of an act or omission done or made in bad faith and it considers that no non-compensatory order effectively redresses the offender for the contravention. A non-compensatory order is defined in s 319I(5) to mean an order under s 209(1) of the AD Act other than a compensation order under s 209(1)(b).
  9. [173]
    There were no submissions on appeal regarding the appropriate relief should we find a contravention of the AD Act. The applicant in the hearing below sought the following orders:
    1. (a)
      Under s 209(1)(b) requiring the respondents to pay her an amount as compensation for loss or damage caused by the contraventions being an amount for the stress, hurt and humiliation and psychological distress suffered;
    2. (b)
      Under s 209(1)(d) requiring the respondents to make a private apology to her;
    3. (c)
      Under s 209(1)(f) requiring the first respondent to implement policies for the non-discriminatory treatment of transgender prisoners.[88]
  10. [174]
    Although the Member below found no contravention had occurred and that, if it had, there was no bad faith on the part of the respondents, she did go on to consider the question of what an appropriate award of compensation would have been. The learned Member arrived at an amount of $20 000 but based on a hypothetical finding that both the use of male pronouns and the imposition of the IMPs constituted unlawful discrimination.
  11. [175]
    The Member below held as follows:

[211] The applicant’s evidence in chief is that during her imprisonment and for a month or two afterwards she felt depressed and experienced suicidal thoughts. She attributes these feelings to her treatment in prison. The applicant gave evidence that by the time of the second IMP she ‘became a shell of who I was and who I had been up until that point’.

[212] The applicant was not cross examined in relation to how she felt.

[213] The applicant did not call any medical evidence to support her claims.

[214] The first respondent submits that the applicant gave no evidence as to how she felt in respect of the two claims actually agitated before the Tribunal. The applicant’s affidavit was affirmed before the further amended contentions were filed in October 2017 which limited the claim to the Pronoun and IMP issues. The point is made that it is possible the applicant’s feelings related to the other matters previously raised by her in the proceeding. The second and third respondents make similar submissions.

[215] The first respondent says that the onus is on the applicant to prove a clear causal link between a contravention of the Act and any injury.43 It is submitted that the Tribunal has no clear link between the alleged contraventions and the impact on the applicant.

[216] The applicant seeks an award of damages in the range of $30,000.00-$50,000.00, consistent with the approach taken in Richardson v Oracle.

[217] I am very reluctant to make an award of damages for what is a medical condition which encompasses depression and suicidal thoughts without medical evidence as to the nature and extent of the injury and its cause. I do not think a statement from an applicant as to her psychological condition achieves an appropriate level of proof.

[218] I am prepared to accept that the applicant was offended and distressed by the use of male pronouns and wording in the IMPs. On the state of the evidence I cannot find that these matters caused an injury resulting in a medical condition.

[219] If it were appropriate to make an award in favour of the applicant I would do so on the basis that she had suffered hurt and humiliation. It is appropriate to make an award consistent with the Tribunal’s own previous decisions.45 I accept the first respondent’s submission that the only comparable case is that of Sinden v State of Queensland where an award of $20,000.00 was made.

[220] Had contraventions of the Act been made out I would have awarded $20,000.00 inclusive of interest

  1. [176]
    In addition to an award of compensation Ms Tafao sought an order that the respondents make a private apology to her and that the first respondent be required to implement policies for the non-discriminatory treatment of transgender prisoners. We are prepared to make an order that a private apology be made to Ms Tafao in respect of the use of male pronouns. We have set out the circumstances of the contravention above. There was, as we have said, a contravention with respect to the use of male pronouns, albeit without bad faith. Accordingly, the statutory requirements for the making of a compensatory order are not satisfied. Weighing up all the circumstances of the contravention, it seems appropriate to us, in these circumstances, that a private apology be made. Given the revised COPD which requires that transgender prisoners be addressed in a manner consistent with their gender identity in all communications with the prisoner, verbal and written, and with third parties, we do not make an order for the implementation of policies in the broad terms proposed by the applicant.
  2. [177]
    For the reasons above, there is no power in the Tribunal to make a compensation order. Had we been required to make an order for compensation we turn to consider the issue of the appropriate amount of such compensation. We have set out the Member’s reasoning above. We find no basis on which to disturb the Member’s conclusions regarding the appropriate level of compensation. However, given we have found only one basis for finding unlawful discrimination, namely the use of male pronouns, it is necessary for us to determine how much of that amount is attributable to the use of male pronouns as opposed to the imposition of the IMPs.
  3. [178]
    Doing the best we can, and recognising the absence of submissions on the point, we regard the imposition of the IMPs as potentially a more serious contravention and, doing the best we can, we would attribute $12 500 for the imposition of the IMPs, had that constituted unlawful discrimination, and $7 500 for the use of the male pronouns.
  4. [179]
    The learned Member found that had a contravention of the AD Act by the second and third respondents been established, then s 133 of the AD Act would operate to render the first respondent liable. There is no basis upon which we would find otherwise. We adopt that finding and find that the first respondent is vicariously liable for the established contravention.

Orders  

  1. [180]
    Accordingly, we make orders to the following effect:
    1. (i)
      Leave to appeal is granted;
    2. (ii)
      The appeal is allowed.
    3. (iii)
      The Tribunal’s decision is set aside.
    4. (iv)
      It is declared that, in respect of the use of male pronouns to refer to the applicant, the first respondent, second respondent and third respondent are jointly and severally liable for unlawful indirect discrimination against the applicant in contravention of s 101 of the Anti-Discrimination Act 1991 (Qld). 
    5. (v)
      The complaint in relation to the imposition of internal management plans is dismissed.
    6. (vi)
      The respondents must make a private apology pursuant to s 209(1)(d) of the Anti-Discrimination Act 1991 (Qld) in relation to the use of male pronouns in addressing or referring to the applicant.
  2. [181]
    We also make directions for the parties to file any submissions as to costs and for the other parties to file any submissions in response. Unless otherwise ordered, a decision on costs will be made on the papers without a further oral hearing.

Footnotes

[1]  We will refer to the applicant as Ms Tafao and by female pronouns. By doing this we do not pre-judge any issue relevant to this matter.

[2]  AD Act, s 6(2).

[3]  Ibid, s 101.

[4]  Ibid, Schedule.

[5] Births, Deaths and Marriages Registration Act 2003 (Qld), s 23.

[6]  Ibid, s 24.

[7]  CS Act, s 319C.

[8]  Second Reading Speech, Minister for Police, Corrective Services and Sport, JC Spence, MP, Corrective Services and other Legislation Amendment Bill, 1 May 2008.

[9]  Ibid.

[10]  Ibid.

[11]  CS Act, s 319G(4), s 319H(4).

[12]  Explanatory Memorandum to the Corrective Services and Other Legislation Amendment Act 2008 (Qld), at 15-16.

[13] Human Rights Act 2019 (Qld), s 108(2)(b).

[14]  QCAT Act, s 147.

[15] House v The King (1936) 55 CLR 499 at 505; Coal & Allied Operations Pty Ltd v Australian Industrial Relations Committee (2000) 203 CLR 194 at 203-204.

[16] Tafao v State of Queensland [2018] QCAT 409.

[17]  Ibid, [73].

[18]  Ibid.

[19]  Ibid, [175].

[20]  Applicant’s submissions at [31].

[21] Tafao v State of Queensland [2018] QCAT 409, [178].

[22] Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697 at [59]-[63].

[23] Tafao v State of Queensland [2018] QCAT 409, [7].

[24]  Ibid, [179].

[25]  Ibid, [180].

[26]  Ibid, [178].

[27] Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165.

[28]  Applicant’s submissions at [46].

[29]  Ibid at [82].

[30]  Ibid at [57].

[31]  T 2-12.

[32] Tafao v State of Queensland [2018] QCAT 409, [82].

[33]  [2003] HCA 62; 217 CLR 92 at [185]

[34] Tafao v State of Queensland [2018] QCAT 409, [86].

[35]  Ibid, [79]-[88].

[36] Tung v State of Queensland [2013] QCAT 251 at [32]-[48].

[37]  (1991) 173 CLR 349.

[38]  [2003] HCA 62

[39]  [1998] QCA 228.

[40]  Ibid at 8; at 21, per Pincus JA.

[41] IW v City of Perth (1997) 191 CLR 1 at 52.

[42] Wotton v State of Queensland (No 5) [2016] FCA 1457 at [551].

[43]  AD Act, s 10(2).

[44]  Ibid, s 10(3).

[45]  [2019] FCA 1092.

[46]  (1998) 159 ALR 108.

[47]  Ibid at [28].

[48]  Ibid, [63].

[49] Devries v Australian National Railways Commission (1993) 177 CLR 472.

[50] Tafao v State of Queensland [2018] QCAT 409, [86].

[51]  Ibid, [80].

[52]  Transcript of hearing, day 1, in ADL075-16, dated 7 February 2018, at 76 (T1).

[53] JM v QFG & GK [1998] QCA 228.

[54] Tafao v State of Queensland [2018] QCAT 409, [89].

[55]  T 1-60.

[56]  T 1-61.

[57]  T 1-61.

[58]  T 1-61.

[59]  T 1-61.

[60]  T 1-77.

[61]  T 1-82.

[62]  T 1-77.

[63] Tafao v State of Queensland [2018] QCAT 409, [90].

[64]  See for example Turner v Safley, 482 US 78, 84-85 (US 1987).

[65]  543 US 499.

[66]  [2010] 2 All ER 151.

[67]  Ibid at [77].

[68]  Affidavit of Leilani Tafao filed 25 August 2017, exhibit LT-8

[69]  Deputy Commissioner Instruction on Transgender Prisoner Management issued 5 July 2016; Deputy Commissioner Instruction on Transgender Prisoner Management issued 20 January 2017.

[70]  Affidavit of Peter Shaddock dated 4 October 2017, Exhibits PS-03, PS-04, PS-05.

[71] Tafao v State of Queensland & Ors [2018] QCAT 409, [91].

[72]  Ibid, [155].

[73]  Ibid at [146]-[147].

[74]  Ibid, [162].

[75]  Ibid, [164].

[76]  Ibid, [147].

[77]  [2010] 2 All ER 151

[78]  Ibid at 161.

[79]  T 1-75, L19-28.

[80] Waters v Public Transport Corporation (1991) 173 CLR 349 at 394.

[81] New South Wales v Amery (2006) 230 CLR 174, [208] per Callinan J.

[82]  Ibid.

[83] Tafao v State of Queensland [2018] QCAT 409 at [191]-[193].

[84] Vos v Hawkswell [2010] QCA 92 at [20]-[21] citing Fox v Percy [2003] HCA 22; 214 CLR 118.

[85] Payne v APN News & Media [2016] QCATA 140 at [37].

[86] Mandla v Dowell Lee [1983] 2 AC 548 at 565-566.

[87]  CS Act, s 319I.

[88]  Applicant’s outline of submissions filed 22 March 2018 at [215].

Close

Editorial Notes

  • Published Case Name:

    Tafao v State of Queensland

  • Shortened Case Name:

    Tafao v State of Queensland

  • MNC:

    [2020] QCATA 76

  • Court:

    QCATA

  • Judge(s):

    Senior Member Howard, Member Traves

  • Date:

    22 May 2020

Litigation History

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

Appeal Status

Appeal Pending

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