Saeed Dezfouli (the Applicant) is a forensic patient under the long-term care of the Justice Health and Forensic Mental Health Network (JHFMHN and/or the Respondent)
On 4 November 2022 the Applicant lodged a complaint with the President of Anti-Discrimination NSW (the President), alleging that he had been discriminated against on the ground of sex in the provision of goods and services by the Respondent. The Applicant's complaint stated:
The NSW Justice Health discriminates us, the male patients in the Clovelly Ward, the subacute ward because of our gender and treats us less favourable than the female patients in the Forensic Hospital who have 2 massage chairs and more group activities while we get none.
We are required to sit down, put up and shut up in front of the TV (the idiot box) from 7.00am to 10.00pm 7 days a week otherwise it has serious consequences while the female patients get massage on the massage chairs. I believe this conduct of Justice Health is discriminatory and in violation of ADA and would like to request your attention and investigation of the unlawful conduct of Justice Health.
The President accepted the complaint for investigation for events alleged to have occurred between 4 November 2021 and 4 November 2022.
In the course of that investigation, the Respondent stated in response to the Applicant's complaint:
Our services, like many others, has been curtailed by restrictions related to the COVID 19 pandemic and has resulted in the curtailment of several programs provided for patients. Whilst the resurgence of COVID 19 is still causing problems for us, we are gradually re-establishing our group programs.
The massage chairs Mr Dezfouli refers to form a small part of sensory modulation, which is a treatment modality that uses specific assessment tools, sensorimotor activities, and environmental modifications to assist patients with self-regulation and acute behavioural disturbance.
The hospital currently has three massage chairs across the acute areas of the hospital: Austinmer Adolescent mixed gender unit, Austinmer Women's Unit and the Bronte Male acute unit. These Units were prioritised due to the high degree of acuity and behavioural disturbance in these units.
The hospital is in the process of installing dedicated sensory rooms, inclusive of massage chairs, to all remaining Units across the Forensic Hospital from early 2023.
In reply, the Applicant stated:
Forensic Hospital has 5 wards, and each ward has 2 to 3 units (except Eloura Ward). All the patients in the Forensic Hospital have the right to the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given under s 68(a) of the NSW Mental Health Act (MHA) 2007, any kind of privilege or services they provide to the patients in a unit in a ward, they are required by the LAW to provide it to the patients in all the units of all the wards.
Justice Health cannot and should not treat some patients more favouritely than the other patients based on their age, gender, or psychiatric disability, because that is unlawful unfair and discriminatory.
Wendy Hoey has blamed the outbreak of COVID-19 for not purchasing enough massage chairs for all the patients in all the Units in all the Wards of the Forensic Hospital. This is also preposterous, because the massage chairs were purchased prior to COVID outbreak in NSW and they should have purchased enough for all the Units in all the Wards in order not to discriminate and neglect other patients.
Ordering massage chairs for all the wards is not perplex, they just do it online or by phone and the company will deliver them, without having to do anything with the COVID.
The Ward that I am in is the Clovelly Ward which is the subacute ward and has a High Dependency (HDU) Unit attached to it. I believe that all the patients in this ward could have been benefitted of these massage chairs if they were supplied to them a few years ago when they were purchased for other wards at the same time.
We have a sensory room in here without a massage chair, that is why it is not being used. I don't believe Wendy Hoey that she is planning to include massage chairs in all the remaining Units from early 2023 otherwise they would tell us in advance.
In January 2023 the President decided to decline the complaint under s 92(1)(a)(i) of the Anti-Discrimination Act 1977 (the Act), on the ground that the complaint was lacking in substance, for the following reason:
The Respondent has provided information that the 3 massage chairs currently available to patients are located in a mixed gender ward, a female only ward, and a male only ward. This does not support the complainant's allegations of less favourable treatment by the respondent towards males in the Forensic Hospital in relation to the provision of sensory equipment.
At the Applicant's request, on 1 February 2023 the President referred the complaint to this Tribunal as required by s 93A of the Act.
The Tribunal has power to grant, or to refuse to grant, leave for the complaint accepted for investigation by the President and referred to the Tribunal under s 93A of the Act: s 96(1) of the Act.
For the reasons that follow, I have decided to refuse leave for the complaint to proceed.
[2]
Legal Principles
A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.
Where the President decides to accept a complaint under s 89B, she must investigate that complaint: s 90(1) of the Act. If the President is satisfied at any time of the investigation that the complaint is lacking in substance, she may decline the complaint in whole or in part: s 92(1)(a)(i). A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if she has received a written request from the complainant to do so: s 93A of the Act. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.
Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].
The onus is on the Applicant to satisfy the Tribunal that leave should be granted: Bacirongo v ACL Pty Ltd [2011] NSWADT 12 at [2]; Pribicevic v State of New South Wales (Department of Family and Community Services) [2014] NSWCATAD 94 at [3]. The applicant's evidence must be taken at its highest, that is, everything the applicant has put in evidence is accepted as true and then the Tribunal determines whether he could possibly succeed in his complaint of discrimination: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35].
[3]
Discrimination on the ground of sex in the provision of goods and services
Section 33 of the Act provides:
33 PROVISION OF GOODS AND SERVICES
(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of sex--
(a) by refusing to provide the person with those goods or services, or
(b) in the terms on which he or she provides the person with those goods or services.
(2) Where a skill is commonly exercised in a different way in relation to men and women, a person does not contravene subsection (1) by exercising the skill in relation to men only, or women only, in accordance with the person's normal practice.
Discrimination can be direct or indirect. Section 24(1) of the Act provides for what constitutes discrimination on the ground of sex:
24 WHAT CONSTITUTES DISCRIMINATION ON THE GROUND OF SEX
(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of sex if the perpetrator--
(a) on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
…
The applicant would need to establish that the Respondent provides goods and services and that they were discriminated against (as defined by s 24) in a manner which was unlawful under s 33. The conduct which is unlawful under s 33 is limited to either refusing to provide the services, or in the terms on which the services are provided. Terms are the conditions on which the service is or will be performed; they are not part of the manner of actual performance: Spence v Roberts (No 2) [2006] NSWADT 361 at [58-60]; Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156 at [28-30]. Section 33 does not allow a complaint of discrimination to be brought in relation to the manner in which goods or services are provided.
[4]
"Services"
Where a respondent is performing a governmental function or statutory duty, depending upon the way in which the relevant "services" are identified, the persons affected may have no ability to decide whether to accept or reject what is done or the outcome, and the Respondent may therefore not be providing "services": State of New South Wales v Whiteoak [2014] NSWCATAP 99 at [158]. In Robinson v Commissioner of Police, NSW Police Force [2013] FCA 770 it was held that "services" to a person covers activities which are helpful and beneficial to that person; therefore dealing with a person's bail application did not involve the provision of "services". This Tribunal has previously considered whether the Respondent was providing the Applicant with "services" whilst he was detained in a forensic hospital: see Dezfouli v Justice Health and Forensic Mental Health Network [2018] NSWCATAD 83 at [27] to [34], and stated at [32]:
In either case, it may be, that because Mr Dezfouli is detained in the facility against his will, he has no ability to decide whether to accept or reject what is done, and the activities are not "services" within the AD Act.
[5]
Consideration
At hearing on 17 May 2023 I explained to the Applicant the nature of a leave hearing and what was required of an application under s 96 of the Act. I explained that he would need to demonstrate to the Tribunal that it was just and fair for leave to be granted in his particular circumstances, in line with the authorities in Jones v Ekermawi [2009] NSWCA 388 (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 (Ekermawi). I explained that the Tribunal would accept any evidence he provided to the Tribunal at its highest for the purpose of determining whether leave ought to be granted.
Both the Applicant and Respondent relied on the responses they had given ADNSW in the course of their investigation. The Applicant further stated that at the time of ADNSW's investigation he had not had the chance to check whether, in fact, the Bronte Mens Acute Unit did have access to a massage chair as contended for by the Respondent. He had since made inquiries with other patients and was informed by some (unnamed) persons who had transferred, from the Bronte Unit to his Unit at Clovelly, that they did not have a massage chair at Bronte. The Applicant stated that the massage chairs had nothing to do with the high degree of acuity and behavioural disturbance in those units, that providing only 3 massage chairs was unfair and discriminatory, and that Justice Health should have purchased 8 of the massage chairs to be fair. He said words to the effect that having massage chairs in the female unit was to "blackmail the female patients because they had a small ward, which created friction between patients". Similarly, having a massage chair available in the mixed ward was for the same reasons, because "there were male and female in the same ward and this caused friction".
When I said to the Applicant "even if I accept that you are being treated less favourably (than women patients), what is your evidence that this less favourable treatment is because of your sex", the Applicant stated that "the core of the conduct is treating males less favourably".
The Respondent maintained that the Bronte Mens Unit had a massage chair, that the Respondent prioritised the units which received massage chairs according to their acuity and behavioural disturbance, and that other massage chairs would be purchased and rolled out "in due course". The fact that two of the three chairs were accessible to men, one of which was accessible to men and women in the mixed unit, demonstrated that there was no less favourable treatment.
To prove direct disability discrimination, if the complaint were to proceed, the Applicant would have to prove that:
1. the respondent is a person who provides goods or services;
2. the respondent refused to provide him with goods or services or provided him with goods or services on unfavourable terms;
3. by doing so, the respondent treated him less favourably than it treated or would have treated a person of a different sex in the same or similar circumstances (differential treatment);
4. one of the reasons for that treatment was his sex.
The onus is on the Applicant to demonstrate how it would be "fair and just" for his complaint to proceed, in circumstances where ADNSW has determined it was lacking in substance.
There was no evidence provided by the Applicant and no submissions made about the organisation of group activities, as expressed in the complaint to ADNSW.
The issues of whether the Respondent was providing the Applicant with "goods" or "services" within the meaning of the Act, and whether the provision of massage chairs to patients fell within that meaning, were not the subject of submissions by either party. Nor did the Applicant make any submissions as to whether the failure to provide him in the Clovelly Unit of the Forensic Hospital with access to a massage chair was a refusal of such goods or services, or the provision of goods or services on less favourable terms.
The Tribunal does not accept that the Applicant's assertion that unnamed person told him that "they did not have a massage chair at Bronte" amounts to evidence in circumstances where it is unsupported hearsay. However, even if the Tribunal accepted that there was no massage chair in the Bronte Mens Unit, and accepted without evidence or submissions:
1. that the provision of massage chairs to patients in the Forensic Hospital was a "provision of goods" or "provision of services", and
2. the failure to provide a massage chair to the Clovelly Unit in which the Applicant was a patient was a "refusal" of goods or services, or the provision of goods or services on unfavourable terms - ie, differential treatment,
there is no direct evidentiary basis upon which the Tribunal could find causation, ie that the failure to provide a massage chair to him, and the other patients at the Clovelly unit (or the Bronte Mens Unit) was because he was male.
As there is no direct evidence of causation on the ground of sex, a causal link between the Applicant's sex and the alleged treatment would have to be established by inference from the available facts. Any such inference must be logical and reasonable and must show that a connection is probable. The inference cannot be made when more probable and innocent explanations are available on the evidence: Seltsam Pty Ltd v McGuiness and Another [2000] NSWCA 29 and Dutt v Central Coast Area Health Service [2002] NSWADT 133 at 70.
The Respondent has put forward explanations for its conduct in providing a massage chair to 3 of the 8 Units in the Forensic Hospital, being the allocation to those units on the basis of acuity and behavioural disturbance, which is more probable than the explanation contended for by the Applicant, being on the grounds of sex. The Applicant's submissions affirm the Respondent's explanation - that the massage chairs have been allocated to the Women's Unit and a mixed gender unit because these units have "more friction". In my view, it is therefore not probable that the Applicant could establish a causative connection between the conduct of the respondent and his sex.
It is highly unlikely that the Applicant would be able to demonstrate differential treatment or causation if his complaint were to proceed. I therefore agree with ADNSW's ground for declinature that the Applicant's complaint is lacking in substance. The Applicant has not satisfied me that it would be fair and just for leave to be granted in relation to the complaint made 4 November 2022 regarding the provision of massage chairs and group activities in the Clovelly Ward of the Forensic Hospital.
[6]
Order
1. Leave is refused for the Applicant's complaint to proceed pursuant to s 96(1) of the Anti-Discrimination Act 1977 (NSW).
[7]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 08 June 2023