Knight v CORE [2002] VCAT 731

4. Where a complaint has been declined by the Commission under s.108(1), s.108(2) provides that within 60 days after receiving the Commission's notice declining to entertain a complaint, the complainant, by written notice, may require the Commission to refer the complaint to this Tribunal for hearing.

5. Mr Knight did so request the Commission to refer the complaint to this Tribunal and it was received on 7 February 2001.

6. Following Directions made by the Tribunal, Mr Knight filed and served his Particulars of Complaint and the Respondents filed and served their Particulars of Defence.

7. When filing their Particulars of Defence, the Respondents also made an application expressed to be pursuant to s.109 of the EO Act and s.75 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act), seeking to have the complaint struck out or dismissed on the grounds that it is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process.

8. Directions were made for the filing and service of submissions. The hearing of the application was before me on 4 July 2002. Mr Maher of counsel appeared on behalf of the Respondents and Mr Knight participated by conference telephone.

9. The background to the complaint is uncontentious, and is set out in Mr Knight's particulars of complaint which essentially repeat his letter of complaint to the Commission.

10. Mr Knight is a prisoner serving a life sentence in HM Prison Barwon.

11. On 1 May 2001, he occupied a cell in the Banksia Unit. On that day, he was transferred to the prison's punishment unit pending investigation into Mr Knight giving two computer disks to a prisoner who was being released.

12. Whilst on transfer, his cell in Banksia Unit and personal property were searched. On 2 May 2001, an Incident Report Form was completed. In the "Summary of Incident" section of the form was written -

"During routine cell search of Knights (sic) cell several items of unauthorised nature were found (see attached list)".

13. The list, printed on CORE letterhead, and which appears as an attachment to the affidavit of Mr Wise filed in this matter, was as follows :

"THE FOLLOWING ITEMS WERE REMOVED FROM KNIGHT'S CELL 02/05/01

5. Numerous articles associated with the Ku Klux Klan/Nazi Party/White Power/Racists Party

6. Inappropriate articles on weapons/war magazines/books

7. Medical centre medication bottle with an adhesive of some sort

15. Large quantity of computer discs - many containing information to (sic) prison security/staffing

20. Quantity of unauthorised stationery (masking tape/date stamp/post-it labels etc)

22. Very large quantity of prison security related items, including :

Prisoner Johnson CRN 73878 phone pin I.D. and phone names and numbers

Telephone hints for prisoners - Information on how to divert phones."

14. Mr Knight was transferred back to Banksia Unit on 4 June 2001. In mid June, he queried the disappearance of various items, including those referred to in the list as item 5, and was informed that they had been confiscated.

15. The confiscated items, described as item 5 on the list, were exhibited as an attachment to Mr Wise's affidavit. They comprised a collection of 14 business type cards, a pamphlet and 4 sheets of A4 paper. One sheet of the A4 had a large picture of Hitler in uniform. A second had a picture of Hitler again with Nazi insignia and skull and cross-bones and the others only the insignia. The cards had slogans saying, for example, "stop the Asian invasion", "we just hate all queers", "white power" and "dial-a-racist" etc with contact details.

16. Mr Knight in his Particulars of Complaint described them as "of a political nature" and "legitimate political material - even if some people may find it offensive". None of that material has been returned to Mr Knight, although copies of it had been provided to him for the purposes of this hearing only.

17. In his particulars, in paragraph 11, Mr Knight says that the material that was confiscated was

"used by him in promoting the aims, objectives and policies of the parties or organisations concerned, and to attract members or adherents to those groups, amongst other prisoners. [those serving sentences of less than 5 years are still entitled to vote] and friends and associates of the Complainant outside the prison. The material also assisted the Complainant in suggesting to these people which party they should vote for, and which political issues they should lobby State or Federal government to address, and how those issues should be addressed".

"The activity described in paragraph 11 above has no bearing on the operation or management of the prison, and there have been no incidences of such activity threatening the management, security or good order of any prison or the safe custody or welfare of any prisoner.

There is no statutory prohibition of, or any restriction on, such political belief, material or activity in the Victorian Corrections Act 1986 or the Victorian Corrections Regulations 1998. Prisoners are not restricted in what political beliefs that they may hold, nor is there any statutory restriction on them engaging in legitimate political activity.

Section 47(2) of the Corrections Act 1986 states that 'A prisoner's rights under this section are additional to, and do not affect any other rights which a prisoner has under an Act other than this Act or at common law'. This provision encompasses the right of a prisoner to hold any lawful political belief and to engage in lawful political activity. The Complainant's political beliefs and activities are lawful and are, therefore, within the scope of this provision.

None of the confiscated material advocates racial or religious intolerance.

None of the confiscated material has fostered tensions between prisoners or impacted negatively on the good order of the prison, nor does it have the potential to do so.

The 2nd Respondent authorised the search of the Complainant's cell and either ordered or approved the confiscation of the material in question. As the General Manager of the prison at the relevant time he was, at common law and pursuant to section 21(2) of the Corrections Act 1986, vicariously responsible for the actions of his subordinates. Section 21(2) states, in part, that: 'The Governor of a prison must take reasonable steps to ensure that officers assigned to the prison know what their powers and duties are '.

The 2nd Respondent has known the Complainant since his reception into the Victorian prison system in August 1987. He has dealt with the Complainant in his capacity, at various times, of Assistant Supervisor of Classification, Supervisor of Classification, Grade 3 Governor in HM Metropolitan Reception Prison, General Manager of HM Prison Barwon, and Director of Prison Services in CORE ('the 1st Respondent'). The Complainant believes that the 2nd Respondent has been aware of the right-wing nature of the Complainant's political beliefs since, or soon after, his reception into the prison system.

The Complainant feels that the 2nd Respondent has been motivated by his own political beliefs rather than a genuine interpretation of his duties and responsibilities under section 21 of the Corrections Act 1986".

19. Section 75(1) of the VCAT Act provides for the summary dismissal of unjustified proceedings. It states :

"75. Summary dismissal of unjustified proceedings

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

20. In a number of cases, the Tribunal has applied to this section propositions set out by the Victorian Court of Appeal in Rabel v State Electricity Commission [1998] 1 VR 102. That case dealt with s.44 of the repealed Equal Opportunity Act 1989, a provision similar to s.75. The Tribunal has applied the same principles to s.75 applications. Essentially, the Tribunal should not, at this preliminary stage, deprive a complainant of the chance to have their complaint heard in the ordinary course, unless the respondent satisfies the Tribunal that the complaint is manifestly hopeless or obviously unsustainable in fact or law or on no reasonable basis can justify relief.

21. The Respondents in their submissions, set out a number of grounds of objection and claim that the statutory exception in s.69 of the EO Act applies. The submissions were as follows :

3. The particulars of Complaint do not set out what section of the EO Act the Complainant is alleging that the Respondents are said to have breached nor is any relief sought. The claim has not specified, either formally or informally how discrimination has been alleged to occur. On this basis the claim ought to be struck out. Even if the claim is interpreted in a non technical way, the material which would establish a breach of the EO Act is not suggested.

4. If it is assumed for the purposes of this application that the Complainant is relying on the attribute of political activity under s.6(g) of the EO Act to found an allegation under s.8 of the EO Act, there is no basis set out in the complaint to establish discrimination. Section 8(1) of the EO Act provides :

'Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute in the same and similar circumstances'.

5. It is not set out in the Complaint that the material has been seized because of the Complainant's political beliefs or activity. There is nothing in the complaint which would suggest that the material would not be seized from any prisoner who held such material. In the circumstances the Complainant has failed to establish on his own material that any discrimination within the meaning of the EO Act has occurred.

6. It is the Respondents' submission that any prisoner in possession of literature of the kind seized would have such material taken from them regardless of their political belief of (sic) activity and regardless of whether such beliefs were known. That seizure would occur pursuant to the powers given pursuant to s.21(1) of the Corrections Act 1986. That section provides that :

'21(1) The Governor of a prison is responsible for the management, security, and good order of the prison and safe custody and welfare of the prisoners'.

7. It is the opinion of the Respondents that the existence of materials associated with the Ku Klux Klan, the Nazi Party, the White Power/Racist Party threatens the good order of the prison and the safe custody and welfare of prisoners. The basis of that submission is set out in the Affidavit of Mr Wise which has been filed in support of the application. The presence of blatantly racist material is not conducive to establish (sic) an environment which might reduce the risk of offending or encourage rehabilitation.

8. It is noted that the Complainant has not disputed the description of the material seized which is referred to in paragraph 5 of the Complaint. Further the Complainant has, by his own complaint, conceded that some people may find the material offensive and he has also conceded that the material is used by him in promoting the aims and objectives and policies of parties or organisations concerned in the material amongst other prisoners. This is notwithstanding his statement in paragraph 9 of his complaint that the material was not on display amongst his personal effects.

9. Section 69 of the EO Act 1995 provides as follows :

(1) A person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of -

(ii) an enactment other than an enactment under this Act.

(2) For the purposes of sub-section (1), it is not necessary that the provision refer to discrimination, as long as it authorises or necessitates the relevant conduct that would otherwise constitute discrimination.'

10. As referred to above, s.21 of the Corrections Act 1986 provides that it is part of the duties of the Governor of a prison to be responsible for the management, security and good order of the prison, and, safe custody and welfare of the prisoners.

11. Pursuant to that section, the Governor of a prison is entitled to take, indeed is responsible for taking, such steps as to give effect to those duties.

12. In the opinion of the Governor of the prison the material held by the Complainant was contrary to the safe custody and good order of the prison and the welfare of prisoners. Given that the Corrections Act has given responsibility for those matters to the Governor of the prison, if it is determined by him that the steps taken are reasonably suitable, necessary or appropriate to comply with those duties or alternatively those steps are authorised by the Act, then it is submitted that the exemption applies".

22. During the hearing, Mr Maher submitted that the Respondents' application was based on two inter-related propositions.

23. First, on the face of the complaints, being the letter to the Commission and the Particulars of Complaint, it does not purport to be a complaint of discrimination under the EO Act. Rather, he submitted, it sets out Mr Knight's complaint about the confiscation of material, and the exercise of the decision-making power under the Corrections Act 1986.

24. Secondly, he submitted that no matter how Mr Knight seeks to cast his complaint, it is incurable because of its very nature. It cannot be transformed into something quite different to bring it within the provisions of the EO Act.

25. Mr Maher submitted that when one looked at what Mr Knight says, there is no hint of discriminatory conduct under the EO Act. What he is really complaining about, he submitted, is that what happened is not supported by any authority under the Corrections Act 1986. He submitted that Mr Knight is asking the Tribunal to take up that complaint and deal with what he says are his legally enforceable rights.

26. Counsel submitted that the complaint was therefore completely misconceived as formulated and is absolutely hopeless and should be summarily terminated.

27. Further, Counsel submitted that a careful examination of paragraphs 8, 9 and 10 of the complaint, revealed that Mr Knight was in fact attempting to seek review of the lawfulness of the Respondents' actions in confiscating and failing to return the particular items, which was a process not open to him in this jurisdiction, but one which he could make through court proceedings. On that basis, counsel submitted the complaint was misconceived.

28. Mr Maher submitted that even if Mr Knight were able to, or did connect his complaint to provisions of the EO Act, on the facts as Mr Knight alleges, there is simply no suggestion that anything done could amount to discriminatory conduct in breach of the EO Act. He pointed out that nowhere in the complaint does Mr Knight even suggest that he has been treated differently in the exercise of the prison's statutory authority, nor is there any suggestion that what has happened could be characterised as discrimination under the EO Act.

29. Counsel referred to the affidavit of Mr Wise in which Mr Wise sets out his legislative responsibilities and the reasons for the search, the confiscation and retention of the material. He pointed out that Mr Wise's reasons reveal that it had nothing to do with treating Mr Knight differently from anyone else and moreover, that he has been treated in the same way anyone else would be in the same or similar circumstances.

30. He submitted that, on any view, those actions could not be characterised as involving a discriminatory act let alone an unlawful one.

31. Counsel also submitted that the Respondents relied on the exception set out in s.69 of the EO Act. The effect of that section is to make certain conduct which otherwise would be discriminatory, non-discriminatory if the relevant conduct is authorised or made necessary by a provision of another Act. He referred to s.20 and s.21 of the Corrections Act 1986 concerning the duties of officers in charge of prisons and prisoners and the duties of a Governor.

32. Mr Knight said he relied on his written submissions. The first part of those submissions take issue with a number of matters Mr Wise referred to in his affidavit. He clarifies that he is alleging that the Respondents have discriminated against him on the grounds of political belief or activity and he relies on sections 6, 8 and 42 of the EO Act. The relief he seeks is the return of the material described in "item 5". He asserts material of a left wing nature would not have been seized and contends that the Respondents have not explained how the material threatens the management, security or good order of the prison or welfare of prisoners. He submitted he should not be deprived of the opportunity to have his case heard in the ordinary course and relied on the principles in Rabel's case.

33. In the hearing, he explained that he saw his complaint as one where the confiscation and failure to return the material in question infringed on his rights to engage in legitimate political activity. He referred to s.21 of the Corrections Act 1996 and said that he wanted to prove through a full examination at a hearing that, in all the circumstances, the confiscation and retention of the material was not reasonable. He clarified that he was not contending that the actions were unlawful but that the decision was wrong and should be reversed.

34. He said he did not concede that his written material contained the whole of his case. However, when pressed about what evidence he would be calling at a full hearing, he confirmed that everything he could give evidence about was already contained in the submissions he had made. He said that there was no further relevant evidence he could give about any of the actions about which he complained but he submitted he should be provided with an opportunity to examine the Respondents' witnesses at a hearing because he would wish to test their assertions.

35. Mr Knight claims discrimination on the ground of "political belief or activity". To succeed in this claim at a full hearing, he must prove that the Respondents have contravened the EO Act - that is that they have discriminated against him on the basis of an attribute recognised by that Act and in an area of activity covered by that Act. "Political belief or activity" is an attribute covered by s.6 of the EO Act. The area of activity in which he alleges discrimination has occurred is described under s.42 of the EO Act, as being in "the provision of goods and services".

36. There is no suggestion in the claim that Mr Knight relies on indirect discrimination. In his submissions he refers to s.8 of the EO Act. Section 8 covers direct discrimination and I treat his claim then as one of direct discrimination.

37. Direct discrimination occurs if one person treats someone with an attribute less favourably than the person treats or would treat someone else without that attribute or with a different attribute, in the same or similar circumstances (s.8(1)). The attribute need not be the sole or dominant reason for the less favourable treatment, but it must be a substantial reason (s.8(2)).

38. Even accepting that Mr Knight could satisfy a Tribunal at a full hearing that he has the necessary attribute of "political belief or activity" as defined in s.6, and that the events relied upon occurred in "the provision of goods and services", neither of which is without doubt, it is difficult to see how his claim could succeed.

39. Despite careful questioning during the hearing, Mr Knight confirmed that he could not say anything whatsoever was said directly to him by Mr Wise or anyone else which would indicate that the material was confiscated and not returned because of Mr Knight's political beliefs or activity. He confirmed during the hearing that there was no other evidence, apart from what he himself asserted in his submissions, that he could call at a hearing to establish any link between the confiscation and retention of the material and any political belief or activity he might have or engage in.

40. I agree with the Respondents' submissions that there is nothing in the complaint or submissions indicating that the material was seized because of Mr Knight's political beliefs or activities. I also agree that there is nothing that would suggest that the material would not be seized from any other prisoner who held such material, another element which would need to be established

to prove a complaint of discrimination, apart from Mr Knight's assertions about persons who may have had left wing material.

41. The fact that Mr Knight may believe the material was confiscated and retained for the reasons he asserts does not cloak those actions as discriminatory.

42. His claim is one of inference. Where a more probable explanation has been given, his claim of discrimination cannot be sustained.

43. A more probable explanation has been given by Mr Wise. He gave evidence under oath adopting the truth of the contents of his affidavit filed. His reasons for the confiscation and retention of the material were set out comprehensively in that affidavit.

44. In Mr Wise's opinion, people from a background that was non Anglo-Saxon would find the material offensive and possibly intimidatory. The prison population at Barwon is of a diverse racial background; 5% are aboriginal and there are a considerable number of people from Asian backgrounds. On occasions, there are levels of racial tension in the prison and care must be taken to ensure that racially based conflict does not arise.

45. Mr Wise stated that the material was seized not because it was of a political nature, but because it expressed views which promoted racial hatred, racial vilification and violence. He stated that the use of that material in promoting those views is disruptive of good order in the prison system generally and it would have been irresponsible of him to allow that to occur.

46. On that basis, he took the view that pursuant to s.21 of the Corrections Act 1986, it was necessary for the prison officers to seize the material in order to secure the security, good order and safe custody and welfare of the prisoners under his control. He went on to say that material of the kind seized would be confiscated from any prisoner, regardless of their political beliefs because the presence of such material in a prison is liable to be detrimental to the good order of a prison.

47. Mr Knight cross-examined Mr Wise. He did not dispute that Mr Wise's actions were lawful. He was concerned that the decision was wrong and should be reversed. He sought to take issue with Mr Wise about the basis for the opinions Mr Wise held about the material and how it could affect the good order of the prison. Merely to establish that Mr Wise's stated opinion was incorrect would not in itself prove that Mr Wise had discriminated against Mr Knight on any basis prohibited by the EO Act.

48. Mr Knight himself said that his complaint was really about the reasonableness of the decision to confiscate and retain the material and he is aware that there are other avenues through which he could contest the reasonableness of those actions.

49. Where that is the case, where on the face of the complaint and in the submissions there is nothing linking the conduct to the attribute claimed, where the complainant's claim is one of assertion only, where the complainant admits there is no other evidence he can call and where a more probable explanation has been given for the conduct (as I am satisfied has been given in this case), the complaint is misconceived and lacking in substance and has no prospect of success. In all of those circumstances it should be dismissed in its entirety and I so do.

50. By way of completeness, it should be noted that I have refrained from making any findings in relation to the attribute or area of activity claimed, nor has it been necessary for me to consider the application of the exception claimed by the Respondents under s.69 of the EO Act.