Egan v State of Victoria, Department of Justice (Corrections Victoria) (Anti-Discrimination) [2011] VCAT 1364

For the Respondent: Ms M Richards of counsel instructed by Victorian

1. Mr Frank Egan, the complainant in this proceeding, is serving a term of imprisonment. Until 15 January 2010 he had been accommodated at Loddon Prison. He is an indigenous man and says that shortly before 15 January 2010 he had started wearing an emu feather head band because of its spiritual connection to his culture.
2. On 15 January 2010 he was removed from his cell at Loddon Prison, placed in a separation unit at Loddon Prison and then transferred to Port Phillip Prison. On 25 January he was transferred from Port Phillip Prison to Fulham Correctional Centre. He is now at Beechworth open camp.
3. Mr Egan believes that the reason he was transferred was because of his race and because he practised his Aboriginal culture. He says his spiritual wellbeing and spiritual journey have been desecrated and he cannot begin to heal until this wrong has been righted.
4. On 29 March 2010 he lodged a complaint of discrimination with the Victorian Human Rights & Equal Opportunity Commission, alleging discrimination on the basis of race in the area of provision of goods and services contrary to s 42 of the Equal Opportunity Act 1995 (EO Act). The complaint did not resolve at the Commission and at Mr Egan's request, it was referred to VCAT.
5. On 25 November 2010, the following directions were made, listing the matter for hearing :
   1. Listed for hearing on 17 March 2011 at 10:00am at 55 King Street, Melbourne. The Complainant is to attend the hearing by telephone and is to present at the hearing all the evidence and material on which he intends to rely.
   2. If the Complainant wishes to call a witness who will not provide a statement, the Complainant may summons that witness to attend and must file with the Tribunal and serve on the Respondent on or before 4 March 2011 a statement setting out the evidence he says that witness will give at the hearing.
   3. The Respondent has liberty to apply at the conclusion of the Complainant's evidence for an adjournment to prepare a response if the justice of the case requires.
   4. In the alternative, at the conclusion of the Complainant's case, the Respondent shall be at liberty to call its own evidence or to make a submission that the complaint should be dismissed. Such an application can be made without the Respondent being put to its election and shall be determined as if it was a final submission on the balance of probability.
6. Whilst the respondent says that the reason for Mr Egan's transfer was because of his bad behaviour and not related in any way to his race, after Mr Egan had given his evidence and been cross-examined, Ms Richards, counsel for the respondent, elected to make submissions that the complaint should be struck out or dismissed under s 75 of the Victorian Civil and Administrative Tribunal Act 1998, on the basis that the complaint was misconceived. Counsel chose, at that stage, not to call any witnesses to give evidence as to the substantial reason for the transfer. Should the respondent's submissions to have the complaint dismissed be unsuccessful, the hearing would resume and the respondent would then be able to call its evidence.
7. Ms Richards produced written submissions on the day in support of the application to dismiss the complaint. She spoke to those submissions.
8. As Mr Egan heard those submissions for the first time at the hearing, I gave him the opportunity to consider them properly and time to respond to them. I ordered that he file submissions in response by 15 April 2011. When no response was received from Mr Egan, I extended the time to 13 May 2011. I made orders that unless his submissions were received by 13 May 2011, I would proceed to determine the application to have his complaint dismissed, in the absence of submissions from him. No submissions were received.

1. I agree with the respondent that Mr Egan's complaint can fairly be characterised as follows :
   • (a) The Complainant is a prisoner who until 15 January 2010 was accommodated at Loddon Prison;
   • (b) The Complainant's race is indigenous Australian;
   • (c) On 15 January 2010 the Complainant was removed from his cell at Loddon Prison, placed in the separation unit at Loddon Prison and then transferred to Port Phillip Prison;
   • (d) The Complainant believes that the reason he was transferred from Loddon Prison was because he practised his Aboriginal culture and because of the racism of the supervisor of his unit;
   • (e) On 25 January 2010 the Complainant was transferred from Port Phillip Prison to Fulham Correctional Centre;
   • (f) His transfer from Loddon Prison has delayed his transfer to an open camp prison and his parole;
   • (g) He was upset by the transfer from Loddon Prison to Port Phillip Prison and then to Fulham Correctional Centre.
2. Further that the legal basis of the complaint is that :
   • (a) The Respondent provides services for the purposes of s 42 of the Equal Opportunity Act 1995;
   • (b) By transferring him from Loddon Prison, the Respondent subjected the Complainant to the detriments of delaying his transfer to an open camp prison and delaying his parole;
   • (c) By transferring him from Loddon Prison, the Respondent directly discriminated against the Complainant on the basis of his race, in contravention of s 42 of the Equal Opportunity Act.

1. At the hearing, Mr Egan gave evidence and was cross-examined. He agreed he had been allowed to wear the headband whenever he wanted and that no one told him to take it off. He also agreed he was able to practise other private sacred ceremonies without any interference. It was clear from his evidence that he took great pride in a number of programmes and initiatives he had been instrumental in establishing in the prison for those of Aboriginal heritage.
2. When asked about a meeting on 7 January 2010 when a group of indigenous prisoners met with staff, whilst Mr Egan did not concede he was the spokesman, he did say that he did the "speaking". The meeting was about those prisoners' unhappiness with the billets, which they said were filthy. Mr Egan explained that at that time management were "on their last chance"; and he and this group of prisoners wanted the billets replaced. He explained that they asked Mr Steen for the job themselves and he refused. He agreed that he had an issue with the quality of the cleaning; that Mr Steen had said to him he could not just replace people, but that one could apply when a vacancy arose; and that Mr Steen told him he would not dismiss an existing billet and give one of Mr Egan's group the job. When it was put to him that he then became aggressive, he replied that he had called Mr Steen 'racist'. He said that at that point, he got up and said "well boys what's this - I'm not going to talk to officers if they are going to treat us like this" and walked out. He agreed that later, he may have said to one of his case workers something like he had "had enough of Loddon", explaining this was because he wanted to go to an open camp.
3. Other matters were also put to him. Relevantly, he agreed that on 15 January 2010, he was taken to "the slot" and then moved to Port Phillip for 10 days. As I understand it, this meant he was placed in a separation unit at Loddon Prison before being reclassified to Port Phillip Prison. His security rating at this time was "B".
4. It is common ground that his security rating was lowered to "C1" on 15 April 2010 and that he has since been relocated to Beechworth. The Sentence Management Reports and Review and Assessment Reports put to Mr Egan and tendered in evidence show this.

1. In any application to strike out a complaint, the Tribunal follows the principles set out in the Victorian Court of Appeal's decision in Rabel v State Electricity Commission [1998] 1 VR 12. The power in s 75 is a power to summarily terminate a proceeding. The Tribunal is cautious before it makes such an order which deprives the complainant of a chance for their case to be heard. The Tribunal will only make such an order where it is satisfied that the case is manifestly hopeless, untenable, doomed to fail, discloses no reasonable cause of action or on no reasonable ground can justify relief.
2. With those principles in mind, I approach this application.
3. Ms Richards put the application on three bases :
   • (i) that in classifying Mr Egan and separating him on 15 January 2010, the respondent was not providing him with "services" under s 42 of the EO Act, but was managing him in prison and that therefore it was not possible to contravene s 42;
   • (ii) that having heard his evidence, I could be satisfied that there was no evidence that the reason for his transfer was his race. She submitted it was patently clear from his evidence that the reason for the transfer was his behaviour and that anyone doing the same would have been treated in the same way;
   • (iii) that he had not suffered any detriment. Despite his claims in his complaint that his parole date would be affected and so would his transfer to an open camp, counsel pointed out that in fact his parole date has not been affected and he had been transferred to an open camp two months earlier than originally planned.

1. For Mr Egan's complaint to have any prospect of success, I have to be satisfied that the respondent is providing "services" for the purposes of s 42 of the Act. He has not identified in his complaint the "services" on which his complaint is based.
2. The respondent contends that it did not provide services to Mr Egan for the purposes of s 42 of the Act.
3. From the evidence adduced at hearing, it is clear that what Mr Egan complains about, relates to his classification and decisions about his security rating, placement and sentence plan. He also complains about being separated from other prisoners on 15 January 2010 when he was placed in "the slot" before being transported from Loddon to Port Phillip Prison.
4. In its submissions, the respondent set out a framework of relevant functions, duties and powers conferred by the Corrections Act 1986 and the Corrections Regulations 2009 on officers of the respondent. They include the following :
   • (a) An officer in charge of a prison or a part of a prison must take all reasonable steps for the security of the prison or part of the prison and the safe custody and welfare of the prisoners - s 20, Corrections Act;
   • (b) The Governor of a prison is responsible for the management, security and good order of the prison and the safe custody and welfare of the prisoners - s 21, Corrections Act;
   • (c) Sentence Management Panels have the functions of prisoner classification, developing a sentence plan for each prisoner, and determining the placement of each prisoner - reg 23(1), Corrections Regulations;
   • (d) Review and Assessment Committees have functions including overseeing the case management of prisoners and reviewing prisoners' classification, and may vary the classification of a prisoner or make recommendations to a Sentence Management Panel regarding the classification of a prisoner - reg 23, Corrections Regulations;
   • (e) The Secretary may order the separation of a prisoner if reasonable for the safety or protection of the prisoner or other persons, or the security, good order or management of the prison - reg 27(1), Corrections Regulations;
   • (f) The Secretary may transfer a prisoner from one prison to another - s 56, Corrections Act;
5. The respondent submits that in classifying Mr Egan - i.e. in developing and reviewing his sentence plan, in determining his security rating and placement from time to time and in transferring him from one prison to another, it was not providing "services" to Mr Egan. Nor was it providing him with a "service" when he was separated from other prisoners for the good order of Loddon Prison. The respondent submits these matters were rather inherent parts of Mr Egan's incarceration.
6. "Services" is defined inclusively in s 4 of the Act to mean :
   • (a) access to and use of any place that members of the public are permitted to enter;
   • (b) banking services, the provision of loans or finance, financial accommodation, credit guarantees and insurance;
   • (c) provision of entertainment, recreation or refreshment;
   • (d) services connected with transportation or travel;
   • (e) services of any profession, trade or business, including those of an employment agent;
   • (f) services provided by a government department, public authority, State owned enterprise or municipal council

but does not include education or training in an educational institution.

1. The classification of a prisoner and management of a prison does not fall within any paragraph of the definition of "services" in s 4, unless they can be characterised as "services" provided by government, in paragraph (f) of the definition.
2. The scope of the word "services" used in similar contexts, has been given a wide meaning[1]. There has been an emphasis on looking at whether the services are an "act of helpful activity" or there is some "action of supplying, helping or benefiting conduct tending to the welfare or advantage of another".[2]
3. I agree with the respondent's submission that in classifying Mr Egan and in separating him from other prisoners, the respondent was not carrying out an activity of help or benefit to Mr Egan. Rather, its officers were carrying out their functions of maintaining the management, security and good order of Loddon prison and of administering Mr Egan's sentence of imprisonment. These activities were inherent parts of his incarceration, and were not services provided to him as contemplated by s 42 of the Act.
4. It follows then that his complaint must fail. In the circumstances, I do not need to address the other two bases advanced by Ms Richards as grounds for dismissing the complaint.

1. I grant the respondent's application to dismiss the complaint and dismiss it.

[1] See generally IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1

[2] See AB v Registrar of Births, Deaths and Marriages [2006] FCA 1071; (2006) 235 ALR 147 - held that altering the Birth Register was a service because it was an activity of benefit to the applicant.