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[2021] QCA 56
This case involved an application for leave to appeal a decision of the appeal division of QCAT. At first instance QCAT had found that not referring to a transgender female prisoner by female pronouns did not constitute indirect discrimination, because that practice was reasonable in light of the need for security and good order in the facility. The appeal division of QCAT overturned that conclusion, on the basis of three alleged errors. The Court of Appeal found that the alleged errors were not errors at all, and therefore set aside the appeal division’s orders.
Sofronoff P and Philippides and Mullins JJA
26 March 2021
Background
Ms Tafao is a transgender woman who was born as a biological male. [3]. During the relevant period she was imprisoned at a facility for male prisoners. [3]. She commenced a proceeding in the Queensland Civil and Administrative Tribunal (“QCAT”) alleging direct and indirect discrimination on the basis of her gender identity against the prison operator, the director of the prison, and the State of Queensland. [3].
Ms Tafao was initially unsuccessful in QCAT. [3]. However, on appeal to the appeal division of QCAT, she succeeded. The appeal division declared that, in using male pronouns to refer to Ms Tafao, there had been unlawful indirect discrimination, contrary to s 101 of the Anti-Discrimination Act 1991. [4].
The State of Queensland, Serco and the director of the prison (“the applicants”), applied for leave to appeal the appeal tribunal’s decision. [5]. In the result, the appeal was successful. The reasons of the court were given by Mullins JA, with whom Sofronoff P and Philippides JA agreed. [1]–[2].
The statutory context and decisions of QCAT
Section 11 of the Anti-Discrimination Act 1991 defines indirect discrimination as the imposition (or proposed imposition) of a term “with which a person with an attribute does not or is not able to comply” and “with which a higher proportion of people without the attribute comply or are able to comply” and “that is not reasonable”. [10]. Whether a term is reasonable “depends on all the relevant circumstances”. [10]. In its application to the applicants, s 319B(1) of the Corrective Services and Other Legislation Amendment Act 2008 modifies the effect of the Anti-Discrimination Act 1991 prohibition by requiring that, in considering whether a term is reasonable, the Tribunal must consider “any relevant submissions” about a range of matters, including “the security and good order of the corrective services facility in which the offender was detained”. [12].
At first instance QCAT accepted the submission that the “security and good order of the prison” were a paramount consideration and that “Ms Tafao’s own safety in an over-crowded male prison was a good reason … not to focus on her gender identity” by using her preferred pronoun/s. In other words, her “treatment was reasonable in the circumstances” and hence not unlawful contrary to the Anti-Discrimination Act 1991. [16], [21].
The appeal division of QCAT found that the first instance decision should be set aside for three key reasons. Namely (at [26], [29]):
1) There had been no consideration of the issue of the cost of implementing alternative treatment, which was a relevant factor;
2) There had been no consideration of the fact that the current prison policy (introduced since Ms Tafao left prison) “requires” transgender prisoners to be referred to in a manner consistent with their gender identity; and
3) There had been no consideration of Ms Tafao’s submission that she had made written requests to be called by the name “Leilani”, if she could not be referred to using female pronouns.
The appeal division considered that, after undertaking a “fine balancing act”, the conduct was “not reasonable” and was contrary to the Anti-Discrimination Act 1991. [26].
The appeal against the decision of the appeal division of QCAT
The applicants argued that the three key reasons given by the appeal division of QCAT were mistaken, and hence, that it had erred in setting aside the initial QCAT decision. [28]–[29]. Mullins JA agreed that the appeal division were mistaken in relation to each of the three reasons.
In relation to the first reason, relating to alleged non-consideration of the cost of implementing alternative treatment, Mullins JA found that the appeal division had misconstrued the original reasons. Those reasons indicated that the issue of costs had been considered, but that the Tribunal had simply concluded that this “did not detract” from the weight of other matters. [33].
In relation to the second reason, relating to non-consideration of the current prison policy, Mullins JA found that the proper construction of s 319H(2) of the Corrective Services and Other Legislation Amendment Act 2008 – which permitted consideration of what is reasonable by reference to “any relevant submissions” – “restricts any other matters which the tribunal considers relevant to those on which relevant submissions are made”. [42]. In this case, “no relevant submission was made” by any party in relation to the current policy. [47]. Accordingly, the appeal division of QCAT had erred in concluding that the original decision-maker had erred in failing to consider this issue. [47].
In relation to the third reason, relating to non-consideration of Ms Tafao’s request to be called “Leilani” if she could not be referred to using female pronouns, Mullins JA also found that a submission to this effect “had not been made” by Ms Tafao in relation to her indirect discrimination claim. [53]–[54]. Accordingly, the appeal tribunal was in error in attributing a failure to consider this issue to the original decision-maker. [54].
In conclusion, the “three errors” relied upon by the appeal division of QCAT to set aside the initial decision “were not errors”. Accordingly, there was “no basis in law for the appeal tribunal” to disturb the original decision. [55]. The orders of the appeal division of QCAT were set aside. [67].
W Isdale