Mizner v State of Queensland

SUPREME COURT OF QUEENSLAND

CITATION: Mizner v State of Queensland (Corrective Services) [2025] QCA 169

PARTIES: JASON MIZNER / (applicant/appellant) / v / STATE OF QUEENSLAND (CORRECTIVE SERVICES) / (first respondent) / JOEL SMITH / (second respondent)

FILE NO/S: Appeal No 12149 of 2024 / QCAT No 4 of 2022

DIVISION: Court of Appeal

PROCEEDING: Application for Leave Queensland Civil and Administrative Tribunal Act/Appeal Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT: Queensland Civil and Administrative Tribunal – [2024] QCAT 468 (Judicial Member Forrest, Senior Member Traves)

DELIVERED ON: 12 September 2025

DELIVERED AT: Brisbane

HEARING DATE: 13 March 2025

JUDGES: Bond JA and Gotterson AJA and Crowley J

ORDERS: Leave to appeal be granted in respect of Grounds 7, 9, 11, 13 and 15. The appeal is dismissed. Unless the respondents seek a contrary order, there be no order as to costs. In the event that the respondents do seek a contrary order on the question of costs: Within 7 days of delivery of judgment, the respondents are to file and serve written submissions as to the order sought with respect to costs. Within 7 days of receipt of the respondents’ submissions, the appellant is to file and serve written submissions as to the order sought with respect to costs. The Court will decide the appropriate order to be made on the papers. The Court makes non-publication orders in the terms of the draft proposed orders, which were marked for identification “A” at the hearing on 13 March 2025.

CATCHWORDS: HUMAN RIGHTS – DISCRIMINATION LEGISLATION – INDIRECT DISCRIMINATION – where the appellant is a prisoner in a correctional centre – where the prisoners in that correctional centre may be required to share their cells unless placed on a “do not double up” list – where the appellant has been diagnosed with mental conditions of post-traumatic stress disorder and borderline personality disorder – where the appellant has physical impairments to his leg and foot – where the appellant claims that his mental and physical impairments cause him to suffer “appreciable or more than minimal disadvantage” when required to comply with the policy that does not allow him to be placed on the do not double up list – whether suffering “appreciable or more than minimal disadvantage” in complying with a requirement is sufficient to infringe s 11(1)(a) of the Anti-Discrimination Act 1991 (Qld) / ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the appellant relied on a psychiatrist report at first instance – where there were a number of psychological reports before the Tribunal – where the material evidence provided by the psychiatrist was that the appellant suffered from an impairment – where the respondent conceded and the Tribunal accepted that the appellant suffered from an impairment – where the Tribunal did not explicitly refer to the psychiatrist report relied on by the appellant or the evidence of the psychiatrist given at the hearing – where the Tribunal considered the source material which the psychiatrist report effectively reproduced – whether the Tribunal erred by failing to explicitly refer to the psychiatrist’s report or her evidence in its reasons for decision / APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDING OF FACT – OTHER FINDINGS – where the appellant was a prisoner who claimed that he suffered indirect discrimination under the Anti-Discrimination Act 1991 (Qld) in being required to comply with a prison policy – where at first instance, he claimed the discrimination arose because of mental and physical impairments he had that caused him to suffer “serious disadvantage” when complying with the policy – where the Tribunal found that he did not suffer “serious disadvantage” compared to the rest of the prison population – where on appeal, the appellant claimed that the Tribunal’s finding was not reasonably open to it on the evidence – whether the applicable standard of error was established by the appellant such that appellate review could occur / APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – POINTS AND OBJECTIONS NOT TAKEN BELOW – WHEN NOT ALLOWED TO BE RAISED ON APPEAL – QUESTIONS NOT RAISED ON PLEADINGS OR IN ARGUMENT – PARTICULAR CASES – QUESTION OF LAW – where at the primary hearing, the appellant sought to prove that he satisfied the legal test under s 11(1)(a) of the Anti-Discrimination Act 1991 (Qld) by demonstrating that he would suffer “serious disadvantage” – where the appellant failed to prove that he would suffer “serious disadvantage” – where on appeal, the appellant sought to prove that he satisfied the legal test under s 11(1)(a) by demonstrating that he would suffer “appreciable or more than minimal disadvantage” – where the point raised on appeal relates to the proper construction of a statutory provision – where the Court may substitute its decision for that of the lower decision-maker – where the respondents did not suggest they would have run their case differently at first instance – where the respondents did not claim that they were prejudiced by having to deal with the point on appeal – whether the question can be raised on appeal / HUMAN RIGHTS – DISCRIMINATION LEGISLATION – INDIRECT DISCRIMINATION – where the appellant is a prisoner in a correctional centre – where the appellant was subject to a policy which meant that he may be required to share a cell with another prisoner – where the appellant claimed that he suffered indirect discrimination in accordance with s 11 of the Anti-Discrimination Act 1991 (Qld) when required to share a cell – where the appellant claimed that the Tribunal failed to consider all of the elements under s 319H(2) Corrective Services Act 2006 (Qld) to determine whether the terms imposed were “reasonable” under s 11(1)(c) of the Anti-Discrimination Act 1991 (Qld) – where at first instance, the appellant made submissions about matters that were not contained in s 319H(2) – whether the Tribunal was required to consider the appellant’s submissions about matters not contained in s 319H(2) / HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the appellant claims that his rights under ss 15(2) and 15(4) of the Human Rights Act 2019 (Qld) were infringed by the respondents’ decisions – where on appeal the appellant claims any degree of infringement on those rights under that Act is a contravention of the Act, even if a discrimination claim under the Anti-Discrimination Act 1991 (Qld) cannot be made out – where at first instance, the appellant only claimed that his rights under ss 15(2) and 15(4) were infringed for the reasons that he claimed s 11 of the Anti-Discrimination Act 1991 (Qld) was infringed – whether the Tribunal decided that there was no breach of those rights solely because there was no indirect discrimination under s 11 of the Anti-Discrimination Act 1991 (Qld) / ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the appellant claims that his rights under ss 15(2) and 15(4) of the Human Rights Act 2019 (Qld) were infringed by the respondents’ decisions – where the appellant claims that the Tribunal misconstrued the scope of the rights under those provisions – where the appellant claims that the Tribunal’s reasons regarding his rights under ss 15(2) and 15(4) were simply conclusionary and did not reveal the reasoning process about the scope of those rights – whether the Tribunal failed to give reasons / HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the appellant claims his right to privacy under s 25 of the Human Rights Act 2019 (Qld) was infringed by the respondents’ decisions – where the appellant claims the Tribunal misconstrued the scope of the right and gave inadequate reasons in respect of his right to privacy claim by not considering whether the right to privacy includes freedom from interference with his physical and mental integrity – whether the Tribunal properly considered the issues and gave adequate reasons / HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the appellant claims his right to privacy under s 25 of the Human Rights Act 2019 (Qld) was infringed by the respondents’ decisions – where at first instance, the appellant claimed that the interference with his privacy under s 25 was arbitrary – where on appeal, the appellant submits that the Tribunal failed to recognise the difference and properly consider the issue as to whether the interference was proportionate in the sense that it was not arbitrary, compared with whether the limit imposed was proportionate pursuant to s 13 of the Human Rights Act 2019 (Qld) – whether the Tribunal correctly understood the difference between the proportionality of the interference in the sense of arbitrariness and the proportionality of the limit imposed, and whether it properly considered the issue / HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the appellant is a prisoner in a correctional centre – where the appellant was subject to a policy which meant that he may be required to share a cell with another prisoner – where the appellant claims that his right to receive humane treatment when deprived of liberty under s 30 of the Human Rights Act 2019 (Qld) was infringed by the respondents’ decisions – where the Tribunal had regard to s 5A of the Corrective Services Act 2006 (Qld) in determining whether the limits on the appellant’s right under s 30 were justified – where the appellant claimed that the Tribunal misconstrued s 5A by treating the factors in that section as a definitive answer to whether the limitation was justified, as opposed to merely taking those factors into account – whether the Tribunal treated the factors in s 5A as the definitive answer to whether the appellant’s right under s 30 was justifiably limited / ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the appellant claims that the respondents’ decisions failed to properly consider his human rights in accordance with s 58(1)(b) of the Human Rights Act 2019 (Qld) – where the appellant appeals the Tribunal’s decision that the respondents did consider his human rights on the basis that such a decision was not reasonably open to it on the evidence adduced – whether the Tribunal’s decision was reasonably open to it on the evidence adduced / Anti-Discrimination Act 1991 (Qld), s 9, s 11 / Corrective Services Act 2006 (Qld), s 18, s 5A, s 319H / Human Rights Act 2019 (Qld), s 13, s 15(2), s 15(4), s 16, s 17, s 25, s 29, s 30, s 48, s 58(1) / Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 149, s 153, s 154 / Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, applied / Hurst v Queensland (2006) 151 FCR 562; [2006] FCAFC 100, considered / Mandla v Dowell Lee [1983] 2 AC 548; [1982] UKHL 7, considered / Owen-D’Arcy v Chief Executive, Queensland Corrective Services (2021) 9 QR 250; [2021] QSC 273, cited / Sklavos v Australasian College of Dermatologists [2016] FCA 179, cited / State of Queensland v Tafao (2021) 7 QR 474; [2021] QCA 56, followed / Thompson v Minogue (2021) 67 VR 301; [2021] VSCA 358, cited

COUNSEL: P Morreau KC, with E J Lewsey, for the appellant / C J Murdoch KC, with A B Fraser KC, for the respondents

SOLICITORS: Legal Aid Queensland for the appellant / C E Christensen, Crown Solicitor for the respondents

1. BOND JA: I agree with the reasons for judgment of Crowley J and with the orders proposed by his Honour.

2. GOTTERSON AJA: I agree with the orders proposed by Crowley J and with his Honour’s reasons for them.

3. CROWLEY J: The appellant is a convicted child sex offender, currently serving a lengthy period of imprisonment. He has been in custody in Queensland since 2017. Before that, he served almost 11 years’ imprisonment in a jail in Thailand for similar offending. He is not eligible to apply for parole until 2032.

4. The appellant is required to serve the custodial term of his sentence in a correctional centre. Despite his crimes and his status as a prisoner, the appellant is a human being. Subject to necessary modifications and exceptions due to his incarceration within a custodial environment, by law he retains fundamental human rights and is entitled to be treated with dignity and without discrimination.

5. This appeal concerns whether prison authorities indirectly discriminated against the appellant and infringed his human rights when making decisions about the circumstances in which he is to be accommodated within the Queensland prison system.

6. Queensland Corrective Services (QCS) is the entity of the first respondent responsible for prisoner sentence management and administration and the operation of all correctional centres in this State in accordance with applicable legislation, primarily under the Corrective Services Act 2006 (Qld) (CSA). The second respondent is an Assistant Commissioner of the QCS and the former Chief Superintendent and General Manager of the Wolston Correctional Centre (WCC).

7. In respect of his present sentence of imprisonment, the appellant was received into custody and held on remand at the Arthur Gorrie Correctional Centre (AGCC). In more recent times, he has been housed at the WCC. When at the AGCC the appellant was, for the most part, accommodated in a single cell. That arrangement changed when he went to the WCC. Since then, he has at times been required to “double-up” and share a cell with another inmate. Such an arrangement is not unique to the WCC. It occurs elsewhere at other correctional facilities in Queensland and has become necessary in order to accommodate a burgeoning prison population.

8. Although overcrowding at the WCC means that most inmates will be required to double-up, exceptions can be made where it is necessary for the good order and security of the prison or for the safety and welfare of inmates or where personal circumstances require a prisoner to have their own cell. Inmates who do not wish to share a cell may apply to be included on the “Do Not Double Up List” ( maintained by QCS. QCS policies and the operational requirements of individual correctional centres dictate the criteria for a prisoner’s inclusion on the DNDU List. Inmates who are assessed as meeting the relevant criteria are included on the DNDU List and are not required to share a cell.

Appeals to the Court from QCAT

12. The appeal is brought under s 149 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Under s 149(2), a party to a proceeding may appeal to this Court against a decision of the Tribunal if a judicial member constituted the Tribunal in the proceeding. That was the case here. However, under s 149(3), an appeal on a question of fact, or a question of mixed law and fact, may only be made if the party first obtains the Court’s leave to appeal.

13. In this case, some of the grounds of appeal concern questions of fact or mixed questions of law and fact. The appellant therefore requires leave to argue those grounds.

14. For an appeal against a Tribunal decision on a question of law only, s 153(2) of the QCAT Act provides that, in deciding the appeal, the Court may confirm or amend the decision, set aside the decision and substitute its own decision, set aside the decision and return the matter to the Tribunal for reconsideration, or make any other order it considers appropriate. Section 153(3) further provides that if the Court returns the matter to the Tribunal for reconsideration, the Court must give directions about whether or not the Tribunal must be constituted by the same persons who constituted the Tribunal when the decision was made.

15. Where leave to appeal is granted in respect of a decision of the Tribunal on a question of fact or a mixed question of law and fact, s 154(2) provides that the appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the Court. In deciding such appeals, s 154(3) permits the Court to confirm or amend the decision or to set aside the decision and substitute its own decision.

16. As with other appeals to this Court by way of rehearing, on an appeal by way of rehearing from a decision of the Tribunal the appellant must satisfy the Court that the order that is the subject of appeal is the result of some legal, factual or discretionary error.² The Court is required to conduct a “real review” of the evidence given at first instance, and of the Tribunal’s reasons for judgment, to determine whether the Tribunal has erred in fact or law.³ The present case does not involve a decision that was the product of the exercise of the Tribunal’s discretion. Accordingly, for each of the grounds of appeal advanced by the appellant the applicable standard for appellate review is the “correctness standard”.⁴ As to which, the majority in Warren v Coombes explained:⁵

“The duty of the appellate court is to decide the case – the facts as well as the law – for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.”

17. If the Court concludes that the Tribunal has erred in fact, it is required to make its own findings of fact and formulate its own reasoning based on those findings.⁶ Factual error may readily be demonstrated by “incontrovertible facts or uncontested testimony”.⁷ In such cases, the Court’s task is relatively straightforward. Where the Tribunal was in no better position than the Court to assess the evidence, the Court must give effect to its own findings and judgment. However, that will not always be so, and the Court must make due allowance for any advantages enjoyed by the Tribunal. In that respect, it must be borne in mind here that the Tribunal had the advantage of seeing and hearing the witnesses give their evidence and had also conducted a view of the WCC. Accordingly, where any of the impugned factual findings in this case are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the Tribunal or because its assessment of the evidence was assisted by the view it conducted, the Court should not interfere with the Tribunal’s factual findings unless it can be shown that the Tribunal has “failed to use or palpably misused its advantage”, or the factual findings are demonstrated to be “glaringly improbable” or “contrary to compelling inferences” in the case. Factual findings of this kind will include secondary facts which are based on a combination of such impressions and other inferences from primary facts.⁸

18. In his original Notice of Appeal, the appellant sought to advance eighteen separate grounds of appeal. Both before the hearing of the appeal and during its running, the appellant amended some of his grounds of appeal and abandoned others. By a Further Amended Notice of Appeal, he now relies upon eleven grounds of appeal. Each of the grounds is detailed. Many assert a range of separate errors of fact or law purportedly committed by the Tribunal. In my assessment, some of the grounds of appeal said to be on a question of law appear to be on mixed questions of law and fact, while others which are said to be on a question of fact, for which leave to appeal would be required, are actually on a question of law only. The proper characterisation of the question posed by each ground of appeal is obscured by the way in which they are drafted. Many of the grounds allege that the Tribunal erred in making a particular factual finding but then set out particulars of what are contended to be individual errors of law that led to the erroneous factual finding. Consequently, it will be necessary to set out the precise terms of each of the grounds that are maintained in order to fully comprehend and address the appellant’s case and to determine whether leave to appeal is required in each instance.

The respondents’ decisions and the appellant’s application to the Tribunal

21. Evidence adduced at the hearing before the Tribunal established the following matters.

22. The WCC is a high security prison for adult males. Accommodation at the WCC is divided between residential and secure accommodation. It accommodates protection prisoners. It is known as a “shared cell occupancy centre”, where single cells are the exception. The facility initially had 600 individual cells but over time as the number of inmates to be accommodated grew, bunk beds were placed in most of the cells to house more prisoners. As at 30 May 2022, there were 1049 beds across the 600 cells, however, there were also 871 complex protection prisoners that had to be appropriately and safely accommodated across those cells. As at 25 May 2022, there were 81 prisoners on the DNDU List at the WCC.

23. Operations at the WCC are to be conducted in accordance with all applicable state laws, including in particular the CSA, together with supporting QCS policies and procedures, stipulated in Custodial Operations Practice Directives (COPDs). Of particular importance is s 18 of the CSA, which provides that “whenever practicable” each prisoner in a corrective services facility must be provided with a room that is not shared with any other prisoner. Due to the overcrowding at the WCC it is not practicable for every inmate to have their own cell. Indeed, doubling up has become the norm and prisoners are required to share a cell unless they are included on the DNDU List. Prisoners are only placed on the DNDU List in exceptional circumstances.

24. Decisions concerning shared accommodation allocation and eligibility for inclusion the DNDU List are made in accordance with the “COPD – Prisoner Accommodation Management – Cell Allocation” (Cell Allocation COPD). Although the Cell Allocation COPD had undergone several revisions over time, insofar as the appellant’s case is concerned the shared cell accommodation placement considerations contained within it (COPD Criteria) remained largely unchanged at all material times. According to Version 6.0 of the Cell Allocation COPD, implemented 16 December 2021, considerations that may impact on whether prisoners are suitable to share a cell included but were not limited to:if the prisoner has been previously victimised within a corrective services facility;if the prisoner has previously perpetrated violence against other prisoners;the prisoner’s history of self-harm and/or suicide attempts;the prisoner’s offence and correctional history;the prisoner’s relationships and known associations;the prisoner’s religious and cultural background;intelligence information;the prisoner’s known physical and/or mental health, medical issues, disability and/or cognitive impairment (including liaison with PMHS and/or QHealth if the prisoner is a known open client of these services);current warnings including escape risk, self-harm episode, enhanced security offender, identified risk, maximum security offender and sex offender flags;individualised risk assessment for sexual offender placements;if the prisoner is identified as a prisoner of concern;if the prisoner is identified as Elevated Base Line Risk (EBLR);if the prisoner is transgender or identifies as LGBTIQA+;any other significant issues of concern; orif the prisoner is on remand.

“…the process appears to have become one in which prisoners who did not immediately qualify for the DNDU list but who nevertheless did not wish to ‘double up’ made request or application, in various permissible ways, to be assessed and considered for inclusion on the DNDU list. Through this process, the overcrowded accommodation demands at the WCC seem to have caused the cell allocation decision making at that facility, in practice, to move from one of decisions being made about who might be allocated to a shared cell to one of decisions being made as to who should not be required to share a cell.”

30. The appellant has been in QCS custody since 30 January 2017 and has been housed at the WCC since 29 November 2018. He has been a long-standing client of the PMHS during his incarceration. Upon intake at the AGCC he was referred for diagnostic clarification of his mental health issues after reporting a history of borderline personality disorder (BPD), Post-Traumatic Stress Disorder (PTSD), depression and anxiety and past suicide attempts. On 31 May 2017, a PMHS psychiatrist assessed the appellant and formed the impression that he suffered from bipolar affective disorder (BPAD), with emerging hypomanic symptoms. On 22 November 2017 another PMHS psychiatrist assessed the appellant and formed the impression that he had a Cluster B personality with possible bipolar spectrum illness, significant anxiety and some traumatic symptoms. On 29 August 2018, another PMHS psychiatrist considered the appellant had an anxiety disorder with anxious mood in the background of a BPD. On 7 November 2018, the appellant was seen by yet another PMHS psychiatrist, who recorded a diagnosis of BPD and differential diagnoses of PTSD, BPAD and an anxiety disorder – unspecified.

31. Later, on 8 November 2019, the appellant was seen by PMHS psychiatrist, Dr Ian Kemp, who formed the impression that the appellant suffered from complex PTSD, which he noted the appellant was managing with coping strategies he had developed over time, and a possible BPAD. Dr Kemp’s treatment plan at that time was to provide the appellant with supportive psychotherapy.

32. By 16 September 2020, the appellant was under the care of Dr Anthony Tie, a consultant psychiatrist with the PMHS. Thereafter, according to the PMHS records before the Tribunal, until at least May 2022, Dr Tie remained the appellant’s treating psychiatrist.

33. Not long after the appellant arrived at the WCC, the appellant was placed on a safety order and for a time was put into single cell secure accommodation for his own protection. On or around 22 February 2019 the safety order was cancelled and the appellant was moved to the residential compound. He was initially placed in a single cell. At that time the number of single cells available exceeded the number of prisoners on the DNDU List. In June/July 2020, a renovation process was undertaken at the WCC to install bunk beds in many of the cells in units within the residential compound. Prisoners were told that many of them would be required to double-up. It was around this time that the appellant first requested that he be placed on the DNDU List. It is not clear whether a formal decision about his request was made at that time but it appears he was told that he did not currently meet the criteria for inclusion on the DNDU List. In about October 2020, the appellant was accommodated in a shared cell with another prisoner. In November 2020, he again asked to be considered for the DNDU List. In support of his request, he provided a short letter from Dr Tie, who stated that he would support the appellant’s request not to share a cell. The appellant was subsequently told that based on the documentation he had provided it was unlikely his request would be approved.

accepted that a higher proportion of prisoners not suffering from impairments of the kind ascribed to the appellant would be able to comply with the terms;¹⁷ however

concluded the terms imposed by the respondents were reasonable in all the circumstances; and

accordingly, the Tribunal determined that the appellant had not been indirectly discriminated against by the respondents through the imposition of the terms by which they decide which prisoners might have to share a cell at the WCC and which ones do not.¹⁸

46. With respect to his human rights complaint, the Tribunal noted:the appellant’s complaint was that by placing him in shared accommodation and then assessing him as ineligible for inclusion on the DNDU List, the respondent, as a public entity, had acted unlawfully because:

the decisions were not compatible with human rights, contrary to s 58(1)(a) of the HRA; and

in making the decisions, the respondents failed to give proper consideration to the appellant’s human rights relevant to the decisions, contrary to s 58(1)(b) of the HRA;¹⁹

the appellant identified his relevant human rights as those recognised under and protected by s 15 (recognition and equality before the law), s 16 (right to life), s 17 (protection from torture and cruel, inhuman or degrading treatment), s 25 (privacy and reputation), s 29 (right to liberty and security of person) and s 30 (humane treatment when deprived of liberty) of the HRA;²⁰

the contentions made in respect of contraventions of ss 15, 16, 17, 25 and 29 were “particularly weak”. The contention made in respect of a breach of s 30 was “arguable”;²¹

the respondents’ decisions did not breach the appellant’s human rights under s 15 of the HRA (recognition and equality before the law) because no indirect discrimination under the ADA had occurred and the decisions did not limit his ability to enjoy his human rights on a discriminatory basis;²²

the appellant’s human rights under s 16 of the HRA (right to life) were not engaged as there was no real and immediate risk of serious physical harm or death to the appellant as a result of sharing a cell with another prisoner with whom he was compatible;²³

the respondents’ decisions did not contravene the appellant’s human rights under s 29 of the HRA (right to liberty and security of person) because his privacy and home had not been unlawfully or arbitrarily interfered with by being required to share a cell, and much less so merely by not being placed on the DNDU List;²⁴

the respondents’ decisions did not breach the appellant’s human rights under s 17 of the HRA (protection from torture and cruel, inhumane or degrading treatment) because he had not established that the decisions would place him at risk of serious deterioration of his mental health such as to result in bodily injury or physical or mental suffering;²⁵

the respondents’ decisions did not breach the appellant’s human rights under s 30 of the HRA (right to humane treatment when deprived of liberty) because:

the appellant had not provided sufficient information to indicate that he satisfied the criteria for inclusion on the DNDU List at the time he was placed in a shared cell or when he was considered ineligible for inclusion on the DNDU List; and

the decisions were also made for the security and good management of the prison and for the safe custody and welfare of all prisoners and thus, by virtue of s 5A of the CSA, which qualifies the operation of s 18 of the CSA and s 30 of the HRA for decisions made by the Chief Executive of QCS or by a QCS correctional officer, no contravention of s 30 of the HRA occurred;²⁶ but

in any event, in the context of relevant circumstances pertaining to the WCC and the appellant at the time the decisions were made, the Tribunal was not satisfied the decisions amounted to treatment other than the hardship or constraint that results from being incarcerated in a prison where some inmates were required to share a cell. The appellant had not demonstrated that he would suffer any prejudice that would amount to treating him inhumanely were he required to share a cell, and the making of the decisions did not mean that he was treated inhumanely or in a way that failed to respect his inherent dignity;²⁷

even if any of the appellant’s identified human rights had been limited by the respondents’ decisions, such limitations were reasonable and demonstrably justifiable in accordance with s 13 of the HRA;²⁸ and

on the whole of the evidence, the Tribunal was satisfied that the respondents’ decision made on 27 July 2022, that the appellant did not meet the criteria warranting single cell placement, and the earlier decisions to the same effect made in May 2022 and June 2021, gave proper consideration to the appellant’s human rights relevant to the decision.²⁹

Ground 1:

The Tribunal erred, in reaching the following findings, by failing to refer to, or take into account, material evidence, namely, the evidence of Dr Lenardon:

at [38] and [51], and [58], that the appellant was able to comply with the terms imposed on him, under s 11(1)(a) of the Anti-Discrimination Act 1991 (Qld) (ADA): and

at [78]-[79], [92]-[93] and [112]-[119], that the appellant’s human rights protected by ss 15, 25 and 30 of the Human Rights Act 2019 (Qld) (HRA) were not engaged and/or limited.

47. Dr Anna Lenardon, is a consultant psychiatrist who was engaged by the appellant’s lawyer to assess the appellant and provide a psychiatric report for use in the QCAT proceedings. She assessed the appellant on 3 November 2022 and subsequently provided two written reports and gave oral evidence for the appellant at the hearing before the Tribunal. In her reports, amongst other things, Dr Lenardon set out relevant background information concerning the appellant and his complaint, reviewed relevant records and documents, identified the appellant’s impairments and stated her opinions with respect to the potential for adverse mental health impacts for the appellant if he were required to share a cell.

48. In her first report, Dr Lenardon noted the following matters under her summary of assessment and formulation:

“Mr Mizner had been placed in both single and shared cells during this custodial episode. Based on file review, it appeared that, when possible, Mr Mizner had been placed in a single cell. There was evidence to indicate that when sharing or facing the prospect of sharing a cell, Mr Mizner had experienced an increase in anxiety, suicidality, and mood instability.

During this custodial episode, Mr Mizner has had formal assessments in relation to his suitability to be placed on a “Do not double up” (DNDU) list in 2021 and 2022 (please refer to Section 4.0). One of the assessors noted that the assessment for single cell approval was ultimately subjective and that the field of psychology was the established authority. Furthermore, it was noted that Mr Mizner expressed concerns in relation to the level of distress he had experienced when sharing a cell and reported fear of becoming suicidal and requiring to be placed under a safety order (i.e., in solitary confinement) due to his traumatic experiences in the Thai prisons. It was suggested if there was a need to place Mr Mizner in a double-up accommodation to contact Psychological Services prior to any changes. Mr Mizner’s treating psychiatrist, Dr Tie was supportive of his request not to share a cell due to ongoing PTSD symptoms.”

49. The mention of Dr Tie in the above excerpt, referred to the letter of support, dated 28 October 2020 which relevantly stated:

“I write as requested by Mr Mizner, as his current treating psychiatrist from the Prison Mental Health Service at the Wolston Correctional Centre.

I would support his request not to share a cell.

Mr Mizner describes persistent emotional hyperarousal, hypervigilance and intrusive recollections consistent with post traumatic stress disorder, attributable to a myriad of adverse experiences over more than a decade in a Thai prison.

Mr Mizner has been informed that custodial placement is under the sole purview of Queensland Corrective Services, involving consideration of a range of both clinical and non-clinical factors.”

50. Dr Tie did not give evidence at the hearing, however his letter and his progress notes were amongst the PMHS records before the Tribunal. It is pertinent to note here that, in its reasons, the Tribunal observed that the appellant “relied heavily” on Dr Tie’s letter and further stated:³⁰

“Dr Tie wrote simply that he ‘would support [the Applicant’s] request not to share a cell.’ Dr Tie supported this by reference to the symptoms that the Applicant described to him of ‘persistent emotional hyperarousal, hypervigilance and intrusive recollections.’ Dr Tie expressed the view that such symptoms were consistent with post traumatic disorder attributed to the Applicant’s time in the Thai prison system. The records reflect that Dr Tie first saw the Applicant on 16 September, 2020 and again on the date of the signing of the letter bearing the date of 28 October, 2020. He saw him again on 26 November, 2020, 25 January, 2021 and onwards into 2021. Dr Tie did not give evidence before us and his handwritten notes that are in evidence are almost impossible to read. One reference to the issue before us that can be read is recorded on 26 November, 2020 as ‘expressed frustration at not being placed on single cell register.’ Another, on 17 August, 2021 appears to read ‘came in the nick of time... a lifeline… a single cell.’ Without more, little can be discerned as to the basis for the Doctor’s written support for the Applicant’s desire to be included on the DNDU list.”

51. Dr Lenardon further outlined in her first report that the appellant’s presentation was in line with a diagnosis of PTSD and, given the severity of the trauma he had experienced and the chronicity of symptoms, his condition was consistent with the concept of complex PTSD. She considered that was the main, and most relevant, diagnosis when considering the appellant’s need for a single cell.

52. In response to a specific question about whether any of the appellant’s symptoms or the characteristics of any diagnosed condition might be exacerbated by the requirement to share a cell with another prisoner, Dr Lenardon stated:

“Given that Mr Mizner relies upon adhering [sic. to] a strict daily routine in order to manage his anxiety and to avoid traumatic triggers, sharing a cell could expose Mr Mizner to further triggers such as lights being turned on during the night, noises in general, and interruption of his sleep. Mr Mizner remains fearful of other prisoners due to past assaults whilst detained in the Thai prisons. Mr Mizner’s mental state at baseline is fragile, hence any of the above destabilisers could cause a further deterioration in his mental state.”

53. In response to a further question about how long the appellant might be able to tolerate such factors exacerbating his symptoms before experiencing deterioration of his mental health, Dr Lenardon answered:

“It is important to note that it is difficult to quantify exactly for how long Mr Mizner would be able to tolerate exposure to the factors outline [sic. outlined] under Question 7.2 as there are other factors that could influence the outcome at the time of the exposure to a destabiliser (i.e., medication compliance, mental state at that time).

To provide an estimate, any major psychiatric condition could deteriorate after only [sic. a] few days of exposure to factors such as sleep deprivation, acute anxiety and or mood instability.

Given that Mr Mizner has been able to tolerate sharing a cell at times, although this has resulted in an increase in symptoms, I would estimate that Mr Mizner would not be able to tolerate more than two weeks of exposure to destabilising factors.

Given the previous history of bipolar affective disorder, Mr Mizner would be particularly sensitive to sleep deprivation (increased risk of triggering a manic episode).

Furthermore, the risk would increase if the other inmate presented as noisy, not adhering to any routine (i.e., being awake until late) or argumentative.”

54. As to the potential risks to the appellant or to others if his symptoms exacerbated or his mental health declined, Dr Lenardon opined:

“In case of exposure to triggers, Mr Mizner could suffer a deterioration in mental state, including a manic episode, in the context of a previous diagnosis of bipolar affective disorder.

Mr Mizner presents with a chronic risk of suicide as evidenced by a history of suicide ideations since a young age, and a previous history of serious suicidal attempts. If Mr Mizner’s mental health deteriorated, his risk of self-harm/suicide would most likely increase. Given the lethality of previous suicide attempts (large overdose of diazepam, attempted hanging), a suicide attempt could result in serious harm to Mr Mizner.

Although Mr Mizner has reported an increase in instability, especially towards other inmates whilst sharing a cell, given the lack of previous violence, it is less likely that Mr Mizner would engage in violence.”

55. Finally, in terms of recommendations for treatment or adjustments of the appellant’s custodial accommodation arrangements, Dr Lenardon stated:

“Mr Mizner has received previous treatment with medications such as mood stabilisers, antidepressants, and antipsychotics with benefit. He is currently not on any medications as per his preference. Given the nature of Mr Mizner’s diagnosis (complex PTSD) it is vital to avoid a sustained exposure to triggers and destabilisers as outlined above. Even if compliant with medications, Mr Mizner would continue to suffer from the psychiatric condition and the medications would only attenuate the symptoms.

If Mr Mizner had to share a cell for short periods of time, the risk of a deterioration in mental state would be mitigated if the other inmate was older and was known to Mr Mizner. Furthermore, Mr Mizner would benefit from being alerted of a change in circumstances as soon as possible (i.e., having to share a cell or having to change location), in order to give him time to adjust to the change.”

56. When cross-examined, Dr Lenardon said that she had spoken to the appellant for about an hour and a half when she assessed him. She agreed that some of the things he had said may have caused her to query whether he was an accurate historian, however she stressed that it was not her role to find out whether he was lying. His presentation during assessment did not strike her as someone who was fabricating or trying to manipulate. She pointed out that in none of the medical records she had reviewed did any of the psychiatrists raise a problem with the appellant’s reliability.

57. Dr Lenardon confirmed her diagnosis that the appellant had complex PTSD. She agreed that PTSD was a disorder under the anxiety classification. She further agreed that the condition could fluctuate at times in terms of severity, depending on a range of factors, including stressors or triggers, but that it was a more enduring disorder and even with treatment a person would continue to experience quite emotional symptoms. She accepted that in prison it would be hard for the appellant to avoid triggers and that it would be difficult even for a person in life generally to avoid triggers. She accepted a person with PTSD could apply mitigating strategies to avoid such triggers.

58. Dr Lenardon agreed what she had recorded in her report about the particular difficulties the appellant experienced when sharing a cell were all matters that the appellant had told her. When asked if they were the only examples the appellant had given of being in a shared cell, Dr Lenardon said that she thought the appellant’s concern was the increase in anxiety, not being able to sleep and feeling highly anxious throughout the day, which in turn related to PTSD symptoms of hypervigilance and potentially being in a situation of danger. Dr Lenardon said the things the appellant had described related to his inability to control his environment. She said he had been subjected to extreme trauma in the Thai prison and he presented as extremely fearful and quite hypervigilant. She said that his need to control his environment was something that often happened with a victim of trauma.

59. Dr Lenardon agreed that sudden noises would be inevitable and unavoidable in prison but reiterated that the appellant being in his cell, and having a small environment that he could control, could be an effective way of controlling those triggers. When asked whether the appellant would still be subjected to triggers if he were to be in a single cell, Dr Lenardon said:

“Well, it’s also a question of - of feeling safe, you know. For someone who’s been deeply traumatised as Mr Mizner has, including his history of - of childhood abuse, having someone in the cell simply will impact that, so having a cell where you can be by yourself is actually a - I would say, accepted for survival of the - of trauma - accepted measure to mitigate that. Now, we’re not seeking to resolve that. Mr Mizner has to remain in a prison environment. We’re not seeking a transfer to hospital, but certainly, having the space that he doesn’t have to share with someone else would mitigate because the - the - well, the - the - the retrigger and reexperiencing. You know, Mr Mizner not only has PTSD but for a period of time, he was treated for bipolar affective disorder, which is a really serious condition. Now, I didn’t see symptoms of bipolar affective disorder at the time of my review, but medical records consistently indicate that he was diagnosed, and he was treated for bipolar affective disorder, which again, it is quite - well, is actually a serious mental disorder.”

60. With respect to her opinion about how long the appellant could tolerate exposure to destabilising factors, Dr Lenardon agreed that the exact period could be influenced by a number of factors. She accepted that one such factor would be if the appellant was able to utilise grounding techniques. She added however that would require the appellant to be ready and able to undergo psychological treatment and to be taught those techniques and said as far as she was aware he had not previously received any such treatment.

61. Dr Lenardon said she was aware that the appellant had been in a shared cell from July 2020 to September 2021. When it was put to her that the appellant could tolerate more than two weeks of exposure to destabilising mental health factors, Dr Lenardon said that she thought the prison records correlating with that period showed times when the appellant was more anxious. She added that her opinion about inability to tolerate more than two weeks of exposure did not mean that the appellant would become acutely unwell and require hospitalisation. Rather, what might be observed would be an increase in distress, which she believed had been recorded in the appellant’s case. She agreed that the matters she had mentioned in her report, that if the appellant had to share a cell for a short period of time his risk of deterioration in mental health would be mitigated if the other inmate was older and known to the appellant and if he was alerted to any such change in circumstances as soon as possible so he had time to adjust, were mitigating matters that would potentially extend the period he could tolerate exposure to destabilising factors.

62. Although the Tribunal referred to Dr Tie’s letter and to other evidence concerning the appellant’s mental health issues in its reasons for its decision, it did not make any specific reference to the evidence of Dr Lenardon in reaching the impugned findings, or at all.

Submissions

63. The appellant submits that Dr Lenardon’s evidence was cogent, reliable and compelling and that it was relevant to the Tribunal’s consideration of whether, for the purposes of his discrimination complaint, he was able to comply with the terms as contemplated by s 11(1)(a) of the ADA, as well as whether, for the purposes of his human rights complaints, the respondents’ actions limited his human rights as a person with impairment.

64. The appellant says he relied on Dr Lenardon’s evidence to establish his psychiatric diagnoses and their impact on his ability to cope with shared cell accommodation; as well as the risk to his mental and physical wellbeing if he was required to share a cell. He submits the evidence was thus material to the issues for decision, or to resolving the parties’ competing positions.

65. Despite its apparent importance, the appellant points out that the Tribunal did not refer to Dr Lenardon’s evidence, either expressly or by implication. He says such an omission indicates it was overlooked or not considered and amounts to an error of law, similar in kind to a failure to give reasons.

66. In support of his argument, the appellant contends that it is evident from its reasons for concluding that he could comply with the terms imposed that the Tribunal found that there was no “sound support in the expert psychiatric evidence” to support his evidence that sharing a cell had a significant deleterious impact on his mental health. The appellant says the Tribunal could not have reached that conclusion unless it ignored Dr Lenardon’s evidence, as her evidence clearly supported his evidence with respect to risks to his mental and physical wellbeing if he was required to share a cell. He further says that for the Tribunal to conclude that the respondents’ decisions did not impact upon him to the extent required to establish indirect discrimination under s 11(1) of the ADA, it must necessarily have rejected Dr Lenardon’s evidence.

67. The appellant makes a similar argument with respect to the Tribunal’s consideration of his human rights complaints and its conclusions that none of the identified human rights were contravened by the respondents’ actions. In that respect, the appellant says that it is apparent that the Tribunal considered his evidence and the evidence of other mental health professionals and corrective services officers but failed to take into account Dr Lenardon’s evidence, particularly insofar as it answered the Tribunal’s concerns about the lack of foundation for Dr Tie’s recommendation.

68. Although they concede that the Tribunal did not expressly refer to Dr Lenardon’s evidence, the respondents submit that when considered as a whole it is apparent that the Tribunal had not overlooked her evidence and did not err by failing to refer to it. The respondents say that the reasons given by the Tribunal were adequate in all the circumstances and no error of law is demonstrated.

Consideration

70. It is true that the Tribunal did not specifically refer to Dr Lenardon’s evidence. However, that omission does not of itself necessarily establish any error of law. Properly understood, the appellant’s contention under this ground is that it was an error of law for the Tribunal to make the particularised factual findings without taking into account the relevant evidence of Dr Lenardon. That conclusion is the inference the appellant invites the Court to draw from the absence of any reference to her evidence in the Tribunal’s reasons.

71. The Tribunal is a court of record from which an appeal to this court lies.³¹ It was obliged to give reasons for its decision.³² It is well-established that where there is a duty to give reasons, a failure to give adequate reasons may amount to an error of law.³³ Whether reasons are adequate will ultimately depend upon the circumstances of the particular case, including the nature and significance of the issues in question and the matters for determination.

72. In Beale v Government Insurance Office of NSW, Meagher JA stated the following relevant principles with respect to the adequacy of reasons, which are applicable here:³⁴

“… No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it… Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.

Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached…where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear…Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance...

Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.”

73. The appellant’s case here is premised on the first principle identified by Meagher JA in Beale.

74. In order to assess whether the inference the appellant contends follows from the Tribunal’s failure to refer to the evidence of Dr Lenardon ought to be drawn, it is necessary to put the appellant’s contention into its full context and to consider whether some other reason might logically explain its omission.

75. The impugned findings of the Tribunal at paragraphs [38], [51] and [58] of its reasons form part of the reasons the Tribunal gave for concluding that the appellant had failed to prove that he was not able to comply with the terms imposed by the respondents. At the commencement of this part of its reasons, the Tribunal stated:³⁵

“After considering the evidence, including the affidavit evidence and oral evidence of the Applicant under cross-examination, we are not persuaded that he is not able to comply with the terms. Most particularly, whilst the prospect of having to ‘double up’ might trouble him and is not his preference, we are not persuaded that he will suffer serious disadvantage in being required to comply with the terms just like other prisoners in the WCC’s residential section are.”

76. It may well be that by its general statement that it had considered “the evidence” the Tribunal implicitly included the evidence of Dr Lenardon. Regardless, it would have been preferable for the Tribunal make some specific reference to Dr Lenardon’s evidence in its reasons so that the position was clear. Nevertheless, I am not prepared to draw the inference that such an omission means that the Tribunal overlooked the evidence or did not consider it in making the impugned findings. Having regard to the nature of Dr Lenardon’s evidence, the nature and circumstances of the case and the issues for determination, and the entirety of the Tribunal’s reasons, I consider specific reference to Dr Lenardon’s evidence was not necessary and its absence is rationally explicable.

77. It must be borne in mind that Dr Lenardon was an expert witness giving opinion evidence. She did not purport to give evidence of matters she had herself witnessed. To the extent that she spoke of the appellant’s “presentation” in her reports and oral evidence at trial, it is apparent that her evidence was based upon the history she had obtained from a file review of the documentation provided to her and the information she had obtained from the appellant during her interview with him.

78. It must also be borne in mind that for the purposes of the appellant’s discrimination complaint the relevant period with which the Tribunal was concerned was from mid-2020 through until late August 2021, when he made his complaint to the QHRC that led to his application to the Tribunal; and that for the purposes of his human rights complaint, the relevant period was from about 12 July 2020 through until 27 July 2022, during which time the respondents made various decisions about his accommodation and assessed him as ineligible for inclusion on the DNDU List.

79. Much of Dr Lenardon’s evidence concerned the appellant’s diagnoses and was directed at establishing the fact of impairment. However, as was accepted by the appellant in closing submissions before the Tribunal, given that the respondents ultimately conceded he did have an impairment, that matter was no longer a disputed issue for the Tribunal to resolve. As noted above, the Tribunal found that the appellant did have mental health impairments, that included “some form” of PTSD. That finding was consistent with Dr Lenardon’s evidence. In the circumstances, there was no need for the Tribunal to further refer to Dr Lenardon’s evidence on that issue.

80. As to Dr Lenardon’s evidence of the actual mental health impacts and the reported symptoms experienced by the appellant as a result of fearing the prospect of doubling up, or being required to do so, during the relevant periods, Dr Lenardon’s evidence was again based on information provided to her. She relied upon what she had read in records or documents prepared by others and what she had been told by the appellant. Dr Lenardon did not purport to provide any expert opinion evidence in interpreting the records. Her repetition of what she had read and been told did not produce independent evidence of the facts recited. It was essentially hearsay. The Tribunal had the primary evidence, including the relevant records from the WCC, QHealth and the PMHS, and the evidence of the appellant and other witnesses, which it referred to and considered in its reasons. Thus, in my view, the Tribunal did not need to refer to Dr Lenardon’s evidence about those matters.

“…after considering all of the evidence, not just the evidence of the Applicant himself, we are satisfied that the Applicant has not suffered and does not suffer any serious disadvantage in complying with the Respondents’ terms. Records demonstrate that he is frequently assessed and monitored, would be again before any proposed change in his circumstances, and if his impairments begin to cause him objectively observable difficulties of sufficient seriousness, particularly during any period of doubling up, we are satisfied that he could legitimately expect to be included on the DNDU list. So, in short, we are satisfied that the Applicant has not established that he is not able to comply with the terms imposed by the Respondent as required to establish his case.”

94. Thereafter, the Tribunal simply reiterated its further findings on this issue when notionally considering, contrary to its primary findings, whether the terms the appellant complained of were nevertheless reasonable within the context of s 11(1)(c) of the ADA, stating:⁴⁸

“We have already determined that the Applicant’s needs are adequately met with the imposition of the terms and that he does not suffer serious disadvantage as a result of their imposition, such that he can comply. Simply making an exception for him because of his preference or because he has some impairments that he says make it harder for him to share a cell might be an easy solution to his complaint. Changing the terms so that prisoners who have been diagnosed with any form of mental impairment, regardless of its practical effect on them, might meet its requirements, could be another. Those courses might more ideally meet the Applicant’s preferences and stated needs, but adequacy is the measure prescribed here for meeting the reasonableness requirement and we consider the Applicant’s needs are adequately met by the system that has been created by the terms imposed.”

95. It is plain, in my view, that the Tribunal did not accept the appellant’s evidence about the nature and extent of the mental health symptoms and disturbances he claimed he experienced, or would experience, when sharing a cell. The Tribunal found his evidence to be contrary to other evidence which it did accept and prefer, including the contemporaneous records made by counsellors, psychologists and other staff at the WCC.

96. Having reviewed the entirety of the record of the evidence before the Tribunal, I see no basis to conclude that the Tribunal erred in its assessment and findings.

97. Given the Tribunal’s acceptance of this other evidence, and its rejection of the appellant’s evidence, the foundation for Dr Lenardon’s evidence fell away. Consequently, it was not necessary to make any finding about whether Dr Lenardon’s evidence was accepted or not. Whilst it would have better if the Tribunal had simply stated that was so, I do not think it was required in the circumstances. The reasons clearly exposed the basis for the Tribunal’s rejection of the appellant’s evidence and, by extension, the relevant evidence of Dr Lenardon.

98. Dr Lenardon’s further opinion evidence as to the potential negative mental health impacts and risks the appellant might experience if he were required to share a cell also relied to an extent upon what she had gleaned from the records and what the appellant had told her. Again, for the same reasons expressed above, her opinions were undermined by the primary evidence the Tribunal accepted and to which it referred. Further, as the Tribunal noted in its reasons, the evidence showed that, during the relevant period concerned, the appellant was able to manage his mental health issues.⁴⁹ Again, for these reasons, I do not consider it was necessary for the Tribunal to expressly refer to Dr Lenardon’s evidence on these points. Dr Lenardon’s opinion evidence as to what might happen in the future, beyond the scope of the relevant periods with which the Tribunal was concerned, could not supplant the evidence of what did happen.

99. A similar conclusion follows in respect of Dr Lenardon’s opinion evidence as to how long the appellant might be able to tolerate exposure to destabilising factors. The objective evidence clearly showed that the appellant had not decompensated in the way Dr Lenardon theorised he might. Again, it is important to bear in mind that the Tribunal was concerned with the appellant’s ability to comply with the terms during a defined period and was not considering future possibilities. In that regard, the Tribunal clearly considered and assessed the relevant evidence and adequately exposed its reasoning and findings. It was not necessary in the circumstances for the Tribunal to make any determination or finding about Dr Lenardon’s evidence concerning future possibilities and hence it was not necessary to expressly refer to it in its reasons.

“[83] We are not satisfied, on the evidence before us, that there is a real and immediate risk of serious physical harm or death to the Applicant as a result of sharing a cell with another prisoner with whom he is compatible. The Applicant has shared a cell in the past few years with no reports of self-harm or corroborated reports of suicidal ideation. We have already referred to the evidence and our findings about his reporting to and assessment by counsellors and psychologists at the prison. He was not once assessed at such risk of self-harm or suicide that he needed to be placed in the observation unit. We accept that with the available assistance the Applicant can manage any suicidal ideation or deterioration in his mental health. We are satisfied that the Applicant has also, repeatedly, when undergoing interviews with mental health professionals at the prison, satisfied them that he is capable of applying appropriate mitigation strategies to reduce the effects of any anxiety or depression he may experience.

…

[100] For the reasons we have given above, we do not agree that the Applicant has established that the decisions will place him at risk of serious deterioration of his mental health such as to result in bodily injury or physical or mental suffering. The evidence does not demonstrate that it would deteriorate to the extent asserted if he was placed in a shared cell or that the placement would necessarily be the cause of the deterioration. Further, we note that there was evidence to the effect, that on each of the two extended periods when the Applicant was required to share a cell, the Applicant and his ‘cellmate’ reported having ‘no difficulties’ on the occasions the shared cell arrangement was reviewed. The Applicant had also slept on the common area floor of his unit while it was being renovated with no adverse consequences; and had also shared a cell for periods of time at the Arthur Gorrie Correctional Centre, again without serious incident.”

102. Once again, these further conclusions and findings followed from the Tribunal’s consideration of “all the evidence”, but also from its rejection of the appellant’s evidence and its acceptance of other witnesses and what had been recorded in the contemporaneous records.

103. Having regard to the foregoing, I am not persuaded that the Tribunal did not consider the evidence of Dr Lenardon. In any event, even if that were so, I am not satisfied that the Tribunal erred in making the impugned findings by failing to refer to, or to consider, the evidence of Dr Lenardon.

104. Ground 1 is not made out.

Ground 2:

The Tribunal erred by misconstruing s 11(1)(a) ADA, in requiring a complainant to show a serious level of disadvantage, when a human rights compatible interpretation of that provision, required by s 48 HRA, requires only an appreciable or more than minimal level of disadvantage.

Ground 3:

(with leave) The Tribunal erred in finding, at [38], [45], [51] and [58], that the appellant was able to comply with the terms imposed.

105. Section 9 of the ADA prohibits direct and indirect discrimination. Section 11 of the ADA sets out the elements of indirect discrimination:

“11 Meaning of indirect discrimination

Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, 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.

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

the consequences of failure to comply with the term; and

the cost of alternative terms; and

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

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

In this section—

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

106. The premise of the appellant’s discrimination complaint was that by imposing or proposing terms for determining who was eligible for inclusion on the DNDU List at the WCC, in the form of the COPD Criteria and the Local Criteria, the respondents indirectly discriminated against him by reason of his attribute of impairment.

107. With respect to the first element of indirect discrimination in s 11(1)(a), the issue for the Tribunal’s determination was whether the appellant was a person with an attribute who “does not or is not able to comply” with the respondents’ terms. The appellant put his case below on the basis that he was a person who was “not able to comply”, both at the time he was required to double up, and when he was at risk of being required to double up, during the relevant period covered by his complaint.

108. After correctly identifying the issue for determination, the Tribunal observed that the phrase “does not or is not able to comply”, or similar variants, had been authoritatively considered many times, including in JM v QFG [2000] 1 Qd R 373 and in Australian Medical Council v Wilson [1996] FCA 591; (1996) 68 FCR 46.⁵⁰ Then, after setting out some relevant passages from those cases, the Tribunal noted that a further judgment “worthy of particular reference” was that of the Full Court of the Federal Court of Australia in Hurst v Queensland (2006) 151 FCR 562 (Hurst).⁵¹

109. In Hurst, the appellant, a profoundly deaf girl, claimed she had been indirectly discriminated against by the state in her education, by reason of her disability, under s 6(c) of the Disability Discrimination Act 1982 (Cth). The young girl was fluent in Auslan but was not able to use that language in the educational arrangements provided to her by the respondent. It was the respondent’s requirement that she be taught in English (including signed English) without the assistance of an Auslan teacher or interpreter. She claimed the state had discriminated against her by failing to provide her with Auslan instruction and, as a result, her education outcome had been diminished. The trial judge dismissed her claim at first instance, concluding that she had not established that she was “unable to comply” with the requirement. In doing so, the trial judge found that the appellant was able to “cope” with her work at school without Auslan.

110. In allowing the appeal, the Full Court said:⁵²

“Regrettably, in our view, his Honour allowed himself to be distracted by the somewhat unsatisfactory manner in which [the appellant’s] case was presented below. Ultimately, this led him to focus upon the wrong issues. In considering questions of parity between [the appellant] and her hearing peers, and whether she had the ability to ‘cope’, his Honour failed to address the real issue in [the appellant’s] case. That was whether, by reason of the requirement or condition that she be taught in English without Auslan assistance, she suffered serious disadvantage.”

…and later concluded:⁵³

“In our view, it is sufficient to satisfy that component of s 6(c) that a disabled person will suffer serious disadvantage in complying with a requirement or condition of the relevant kind, irrespective of whether that person can ‘cope’ with the requirement or condition. A disabled person’s inability to achieve his or her full potential, in educational terms, can amount to serious disadvantage.”

111. The Tribunal noted in its reasons that the case for the appellant was that he was not able to comply with the terms because:the knowledge that he could, at any time, be required to share a cell causes him to experience significantly increased anxiety and exacerbates his psychosocial impairments; being placed in a shared cell causes him to suffer serious disadvantage, in the form of:exacerbation of his psychosocial impairments and deterioration of his mental health; and

placing him in a situation of potential conflict with his cell-mate due to his strict routine, extreme discomfort when in close proximity to others, and need to minimise noise and light disturbances; and

in a shared cell, he is unable to access the top bunk without experiencing pain and a risk of falling because of his physical impairments.⁵⁴

112. The Tribunal ultimately found that the appellant had failed to prove his case that he was not able to comply with the terms. It was not persuaded that he would suffer “serious disadvantage” in being required to comply with the terms just like other prisoners in the WCC residential area.⁵⁵

Submissions

113. Under Ground 2, the appellant submits that the Tribunal misconstrued s 11(1)(a) of the ADA by following Hurst and applying a test that required the appellant to demonstrate that he had, or would, suffer a “serious disadvantage”. He submits that the phrase “not able to comply” does not require demonstration of an inability to comply in a strict sense. He says a person has an ability to comply with a term if they can do so without disadvantage, and submits that by using a requirement of “serious disadvantage”, derived from Hurst, the Tribunal applied the wrong test.

114. The appellant points out that in Hurst, the Court rejected submissions that had been made on behalf of the Human Rights and Equal Opportunity Commission (HREOC), calling for a human rights compatible interpretation of s 6(c) of the Disability Discrimination Act which would require demonstration of only an appreciable or more than trivial disadvantage or hardship, relative to those without the relevant attribute, in order to prove that a person was not able to comply with a requirement or condition. He says that given the operation of s 48 of the HRA, which requires that all statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights, the approach rejected by the Court in Hurst should now be applied to the interpretation of s 11(1)(a) of the ADA. Accordingly, he argues, he only needed to demonstrate he would suffer “appreciable or more than minimal disadvantage” to persuade the Tribunal that he was not able to comply with the terms. He says such an interpretation would be compatible with the right to equality, recognised and protected by s 15 of the HRA.

115. The appellant concedes that this point was not raised below. Nevertheless, he submits that if his argument is correct then, as a matter of law, a human rights compatible interpretation must be applied, and thus the Tribunal erred by not doing so.

116. As to Ground 3, the appellant says that even if it was necessary that he show he would suffer serious disadvantage, the Tribunal’s finding to the contrary was not reasonably open on all of the evidence. He points to the evidence he relied upon below to submit that the Tribunal erred in its conclusion.

117. The respondents submit the Tribunal did not err as the appellant contends. With respect to Ground 2, they note that in his written submissions the appellant himself cited the relevant passage from Hurst that was cited by the Tribunal, in support of his argument that he was not able to comply with the terms. The respondents further say that s 48 of the HRA does not compel the adoption of a construction of a statutory provision that is contrary to the express words of the provision, as would be the effect of adopting the construction of s 11(1)(a) of the ADA for which the appellant now contends.

Consideration

119. Although the matter was given fleeting attention at the hearing of this appeal, I find the fact that the appellant did not raise his construction argument before the Tribunal to be particularly problematic.

120. It is well established that a party is bound by the conduct of their case below and will only be permitted to raise a new argument on appeal in exceptional circumstances.⁵⁶ However, the rule is not absolute. In some cases, it is expedient and in the interests of justice that the question should be argued and decided.⁵⁷ Whether that be so very much depends on the nature of the case, how it was conducted below, the nature of the appeal, and the nature and merits of the point in question.

121. I accept that there are factors here that militate in favour of permitting the appellant to raise this argument now despite it not being put at first instance. First, is the fact that the point raised involves a question of law, concerning the proper construction of a statutory provision. Second, is the nature of the appeal to this Court and the powers the Court may exercise in deciding the appeal. I have previously referred to those matters, noting that, amongst other things, on an appeal involving a question of law only the Court may set aside the Tribunal’s decision and substitute its own decision or return the matter to the Tribunal for reconsideration. Third, there is no suggestion that had the point been taken below that the respondents might have sought to run their case differently or to adduce other evidence. Finally, the respondents did not object to the point being raised now and did not claim that they were prejudiced in any way by having to deal with the argument at this stage. They were content to address the argument on appeal.

122. Despite these factors, in my view there are compelling reasons why this Court should not entertain this ground of appeal.

123. Not only did the appellant not raise the present construction argument at the original hearing, but he positively asserted that the Tribunal should consider whether the appellant would suffer “serious disadvantage”. He appears to have first done that in an Amended Reply filed with the Tribunal, in which he pleaded:

“21. The Complainant denies paragraph 29 24(e) and maintains that he was not able to ‘comply’ with that term, in that he could not cope without suffering serious disadvantage, for the reasons set out in paragraphs 20(c) of the Statement of Facts and Contentions.”

124. The reasons set out in paragraph 20(c) of the Statement of Contentions were the alleged mental health impacts and physical difficulties that the appellant would experience, summarised above at [111].

125. It is apparent that the appellant’s case was therefore framed and advanced on the basis that he was not able to comply with the terms because, as a matter of fact, he would suffer serious disadvantage in terms of his mental health if he were required to comply.

126. The appellant maintained that position throughout the proceeding. In his written opening submissions to the Tribunal, he similarly stated that his case was that he was not able to comply with the terms because “being placed in shared cell accommodation causes him to suffer serious disadvantage” and that “he cannot cope in shared cell accommodation without experiencing serious disadvantage”. In each instance, the appellant provided a footnote reference, citing paragraph [134] of Hurst. The respondents, having joined issue, addressed the same question of “serious disadvantage” in their written opening submissions.

127. Thereafter, the entire hearing was conducted on the basis that the appellant would seek to establish the s 11(1)(a) element of indirect discrimination by proving, as a fact, that he would suffer “serious disadvantage” of the kind he claimed.

128. At the conclusion of the hearing, the appellant identified five issues in his written closing submissions that he submitted were contentious and which the Tribunal would need to resolve. Issue three was, “Whether the Applicant would suffer serious disadvantage in complying with the term”. When expanding on that issue, the submissions again referenced Hurst and other authorities⁵⁸ and stated:

“Inability to comply does not mean impossibility. It means ‘can in practice’ or ‘can consistently with customs and cultural conditions’ or whether to comply would cause ‘serious disadvantage’ or ‘great difficulty’.”

129. Two of the authorities cited by the appellant were specifically referred to by the Tribunal in its reasons, at paragraph [32], where the Tribunal noted:

“[32] As might be expected, the meaning of the phrase ‘does not or is not able to comply’ has been authoritatively considered many times. For example, Davies JA (with whom Pincus and Thomas JJA agreed) in JM v QFG said he would construe the words ‘does not…comply’ as ‘referring to the possession of a precluding objective attribute such as race or age or height’ and the words ‘is not able to comply’ ‘to include an attribute of choice such as religion or political belief or trade union activity or lawful sexual activity which precludes a person while he or she maintains it.’ However, Sackville J in Australian Medical Council v Wilson said the following about the words ‘does not comply’: -

‘It was submitted that the phrase “does not comply” refers to some immutable characteristic of the individual that prevents him or her ever complying with the relevant condition. I must confess that I find it difficult to see why the words …. should be given a restrictive gloss. …….

More particularly, a restrictive construction runs counter to the fundamental objective [the statutory provision] seeks to achieve. The point of provisions attacking indirect discrimination is to prevent individuals from the effect of apparently neutral conditions or requirements, which in fact operate in a manner that discriminates against particular groups the members of which have characteristics in common (such as race or national origin). A particular individual within a group subjected to discriminatory practices often will have some chance of complying with the offending condition or requirement. The chances of compliance may depend on how the condition is administered, or on whether the individual is able to overcome the practical obstacles placed in his or her path by the invidious condition or requirement.’”

130. The quoted extract from Sackville J’s judgment in Australian Medical Council v Wilson concerned his Honour’s consideration of the meaning of the phrase of “does not or cannot comply” within s 9(1A)(b) of the Racial Discrimination Act 1975 (Cth). Although not recited by the Tribunal, it is pertinent to note that immediately after that passage of the judgment, Sackville J went on to state:

“It seems to me that the primary purpose underlying s 9(1A)(b) is to ensure that the complainant (or someone on whose behalf a complainant acts) has sustained some disadvantage by reason of the condition or requirement under scrutiny. That purpose is satisfied if the relevant individual in fact does not comply with the condition or requirement, regardless of whether the non-compliance flows from some immutable characteristic or from a different cause. Certainly it should not be enough to exclude the operation of s 9(1A) that a complainant might ultimately be able to comply with a condition or requirement which discriminates against members of the group to which the complainant belongs.

I do not think it necessary in the present case to attempt a definition of the phrase ‘cannot comply’, as employed in s 9(1A)(b), beyond indicating that it is apt to include at least a case of inherent inability to comply with a condition or requirement. It is worthwhile noting, however, that the phrase ‘can comply’ has been construed by the House of Lords, in a case involving a rule preventing a Sikh student wearing a turban at school: Mandla v Dowell Lee [1983] 2 AC 548. Lord Fraser, with whom Lords Edmund-Davies, Roskill and Brandon agreed, interpreted (at 565-566) the phrase to mean ‘can in practice’ or ‘can consistently with the customs and cultural conditions of the racial group’. In my view, the principal significance of the case for present purposes is that it shows the importance of construing statutory language in accordance with the fundamental objectives of the legislation.”

131. The first point made by Sackville J in this further part of his Honour’s judgment is that the individual phrases “cannot comply” and “does not comply” within s 9(1A)(b) of the Racial Discrimination Act were not necessarily mutually exclusive concepts and that, depending on the relevant attribute of a person and the particular condition or requirement in issue, both may be satisfied. The second point made by his Honour is that the purpose of the provision was that the person claiming to have been indirectly discriminated against had sustained some disadvantage by reason of the condition or requirement in question. As Sackville J noted, such disadvantage could come about if a person, in fact, does not comply. But it could also come about if a person could comply, albeit only by sustaining some disadvantage. In either scenario, it is not the classification of the person’s attribute that is important. Rather, it is the practical effect upon them, as a person with a particular attribute, by reason of the imposition of the condition of requirement.

132. Such an approach is consistent with that taken by the House of Lords in Mandla v Dowell Lee,⁵⁹ to which Sackville J also referred and which was the further case cited by the appellant here in his written submissions to the Tribunal. That case involved a Sikh student who wished to enrol in an independent school that had a particular uniform policy. The student wore a turban for cultural reasons. The school refused to admit him to the school as the wearing of a turban would be contrary to the school’s uniform policy. The student claimed the school, by application of its policy, indirectly discriminated against him on the grounds of race under the Race Relations Act 1976. Section 1(1)(b) of the Act provided for indirect racial discrimination in terms which required, inter alia, consideration of whether persons of the same racial group as the complainant “can comply” with the subject requirement or condition. The principal matter in issue was whether the student, as a Sikh, was a member of a particular racial group defined by reference to ethnic origins. The House of Lords accepted that Sikhs were such a racial group and held that the student had been unlawfully discriminated against. The further issue that arose for consideration was the meaning of “can comply”. On that issue, Lord Fraser (with whom Lords Edmund-Davies, Roskill, Brandon and Templeman agreed) stated:⁶⁰

“It is obvious that Sikhs, like anyone else, ‘can’ refrain from wearing a turban, if ‘can’ is construed literally. But if the broad cultural/historic meaning of ethnic is the appropriate meaning of the word in the Act of 1976, then a literal reading of the word ‘can’ would deprive Sikhs and members of other groups defined by reference to their ethnic origins of much of the protection which Parliament evidently intended the Act to afford to them. They ‘can’ comply with almost any requirement or condition if they are willing to give up their distinctive customs and cultural rules. On the other hand, if ethnic means inherited or unalterable, as the Court of Appeal thought it did, then ‘can’ ought logically to be read literally. The word ‘can’ is used with many shades of meaning. In the context of section 1(1)(b)(i) of the Act of 1976 it must, in my opinion, have been intended by Parliament to be read not as meaning ‘can physically,’ so as to indicate a theoretical possibility, but as meaning ‘can in practice’ or ‘can consistently with the customs and cultural conditions of the racial group.’…Accordingly I am of opinion that the ‘No turban’ rule was not one with which the second appellant could, in the relevant sense, comply.”

133. Mandla, and the idea that the employment of phrases such as “can comply” in this context is not to be equated simply with physical or theoretical possibility of compliance, has been adopted and applied in Australia in construing phrases like that used in s 11(1)(a) of the ADA. In Sklavos v Australasian College of Dermatologists,⁶¹ Jagot J, when considering a claim of indirect discrimination under s 6 of the Disability Discrimination Act 1992 (Cth), which employed the phrase in s 6(1)(b) “…the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition” approved of and adopted the following passage from the text Australian Anti-Discrimination Law:⁶²

“The issue of whether a person is unable to comply with a requirement of [sic. or] condition is a question of fact. While the statutory language which is used to connote ‘inability to comply’ with the challenged requirement or condition is not uniform, there do not appear to be any differences of substance. Most of the statutes deal with this issue by use of the words ‘does not or is not able to comply’. The decision of the House of Lords in Mandla v Dowell Lee [[1983] 2 AC 548] is authority for the proposition that a person’s inability to comply with a particular requirement or condition is to be judged practically.

…

Australian courts have tended to follow this liberal approach to the question of whether the complainant is unable to comply with the requirement or condition in question.”

134. In my view, it is apparent that the Tribunal here approached the construction of s 11(1)(a) of the ADA in a similar way. However, it is also apparent that the appellant sought to demonstrate he could not practically comply with the respondents’ terms without suffering serious disadvantage.

135. When addressing the Tribunal in closing argument, the appellant’s counsel adopted the written closing submissions and informed the Tribunal that she did not intend to make any significant oral submissions. She nevertheless highlighted the issues for resolution, which she submitted included whether the appellant “does suffer serious disadvantage in complying with that term”. In later submissions on that point, she then said:

“And then when one looks at whether or not the applicant suffer [sic. suffers] serious disadvantage in complying with that term, the respondent contends in their submissions that the applicant has the ability to comply with the terms imposed if such a term indeed is imposed. It is, of course, contended that he [sic. the] applicant would and has suffered serious disadvantage in complying with those terms.”

136. In his closing submissions, counsel for the respondents made the following submission:

“In terms of the question of ability to comply in this case, the tribunal knows, of course, from the authorities that the question is whether there is a real and practical inability as opposed to a preference. And, of course, the ultimate question is whether the person is at a – is placed at a serious disadvantage if they are required to comply. And, of course, that’s a serious disadvantage compared to the situation that they would be in if the [sic. they] were not required to comply.”

137. The ultimate question to which counsel for the respondents referred was the factual proposition that the appellant had put in issue, derived from Hurst, namely, whether he would suffer serious disadvantage if he was required to comply with the terms.

138. The Tribunal ultimately found the appellant had not suffered, and did not suffer, any serious disadvantage in complying with the respondents’ terms.⁶³ In reaching that conclusion, the Tribunal was not asked, nor was it required, to construe s 11(1)(a). It simply applied the terms of the legislation but in circumstances where the appellant asserted that he could satisfy that element of his claim of unlawful indirect discrimination by proving that he had suffered, or would suffer, serious disadvantage if he was required to comply with the terms. He failed to prove his case.

139. In my opinion, by pursuing the present ground of appeal the appellant seeks to not only shift the goalposts, but to do so after the game. He failed to establish the factual proposition he set out to prove, so he now seeks to argue that as a matter of law the factual threshold he was required to meet was not so high. If he were to succeed on that argument, the corollary would be that he would seek an order returning the matter to a differently constituted Tribunal for reconsideration on the basis of the evidence already taken but with further evidence permitted. That would perhaps permit the Tribunal to reconsider whether the appellant was “not able to comply” with the terms because he had, or would, suffer a level of disadvantage less than “serious disadvantage”. But even so, I am not convinced it would be appropriate or wise for this Court to embark on the statutory construction process the appellant urges.

140. I reiterate that the fundamental problem I have with the present ground of appeal is that the appellant seeks to have this Court rule on a question of law that did not arise before the Tribunal. The Tribunal simply decided the case on the basis it was asked to consider, which involved a factual dispute. Although the Tribunal was urged to apply what had been said in Hurst, it must be borne in mind that what the Full Court said there was not intended to displace the relevant statutory text. The court in Hurst determined that it was sufficient to satisfy the requirement in s 6(c) of the Disability Discrimination Act, that a person was “not able to comply”, if a person would suffer serious disadvantage in complying with the relevant requirement or condition. The court did not purport to undertake an authoritative exercise in statutory construction and was not proposing that the phrase “not able to comply” was synonymous with “serious disadvantage”. Rather, the court was simply stating a conclusion that, on the facts of that case, proof of a serious disadvantage was sufficient to satisfy the statutory element of “not able to comply”. The court made plain that the case before it was, as with all cases of this type, highly fact specific and the outcome depended upon the circumstances unique to the case and upon the primary facts found by the primary judge. It was for these reasons the court determined that it was not necessary to rule upon the various construction arguments that had been put on behalf of the HREOC.

Ground 4:

The Tribunal erred in finding, at [58]-[60], that the terms imposed on the appellant were reasonable, by:

failing to take into account the submissions of the appellant below, contrary to s 319H(2) of the Corrective Services Act 2006 (Qld) (CSA);

at [57] failing to correctly apply the onus in s 205 ADA;

at [56]-[58], erroneously reading down/failing to correctly apply s 11(2) ADA: and

at [58], conflation of consideration of s 11(1)(a) with (1)(c) ADA; alternatively, conflation of the consideration in s 319H(2)(g) CSA with reasonableness under s 11 ADA.

Ground 5:

(with leave) The Tribunal erred in finding, at [58]-[60] that the terms imposed were reasonable.

148. It is convenient to consider these two grounds together.

149. Despite finding that the appellant had not proven that he is not able to comply with the terms, the Tribunal nonetheless went on to consider s 11(1)(c) of the ADA and the further indirect discrimination element of whether the terms were not reasonable. Pursuant to the version of s 205 of the ADA that applied at the time, the respondents bore the onus of proving that the terms were reasonable.

150. As part of its consideration of this issue, the Tribunal was required to consider s 319H of the CSA, which lists certain matters that may be relevant to whether a term imposed by a “protected defendant” is not reasonable for the purposes of s 11(1)(c) of the ADA. It was not in issue before the Tribunal that the respondents were protected defendants.

151. After considering the issue, the Tribunal held that the terms were reasonable and thus, irrespective of whether the appellant was not able to comply with them, his discrimination claim failed.

152. In reaching its conclusion, the Tribunal set out the terms of s 319H, then stated:⁶⁶

“[56] It is, no doubt, the wording of this section that explains the choice of language used by the Second Respondent in his evidence... The Respondents assert that the security and good order of the WCC, given the overcrowding that has existed there over the relevant time, has required the imposition of the terms the Applicant complains of. Despite the wording of s 18 of the CSA, we accept it is clear that if more prisoners are to be housed in a correctional facility than there are single cells, absent having another facility being ready to accommodate the overflow, reconfiguration of cell space to house more prisoners in the existing facility is necessary. Though not meeting the ideal, requiring prisoners to double up is one means of achieving that. That brings with it a need for determining which prisoners should be required to share cells and which prisoners should not. Some form of criteria or ‘term’ for doing so consistently and fairly whilst maintaining good order and security is plainly necessary.

[57] Though we can speculate on matters such as the cost of building a new prison or even new residential facilities within the WCC, no evidence about that was adduced in this matter. No evidence was adduced as to the budget and resources constraints of the Respondents. Additionally, there was no evidence adduced going to the cost to the Respondents of imposing alternative terms to the ones complained of by the Applicant. Similarly, there was no evidence adduced as to the administrative and operational burden that imposing an alternative term might place on the Respondents, nor as to the disruption to the Respondents that imposing an alternative term might cause. That does not prevent us from determining that the Respondents’ imposition of the terms was reasonable.

[58] We have already determined that the Applicant’s needs are adequately met with the imposition of the terms and that he does not suffer serious disadvantage as a result of their imposition, such that he can comply. Simply making an exception for him because of his preference or because he has some impairments that he says make it harder for him to share a cell might be an easy solution to his complaint. Changing the terms so that prisoners who have been diagnosed with any form of mental impairment, regardless of its practical effect on them, might meet its requirements, could be another. Those courses might more ideally meet the Applicant’s preferences and stated needs, but adequacy is the measure prescribed here for meeting the reasonableness requirement and we consider the Applicant’s needs are adequately met by the system that has been created by the terms imposed.

[59] We are also satisfied that the Applicant’s dignity is appropriately respected by the imposition of the terms and we are not persuaded that imposing the terms unfairly prejudices other offenders. We also observe that the Applicant was accommodated in a double up arrangement from July 2020 to September 2021 and was treated and assessed appropriately throughout that time without, as we have already found, suffering serious disadvantage.

[60] Finally, on this point of reasonableness, the written submissions filed by the Respondents, both in their original form and their closing form, included a number of submissions which, after having regard to all of the evidence, we accept and which, along with the matters we have already discussed, also help persuade us that the terms imposed by the Respondents were reasonable in all the circumstances. They included the following;-

decisions about the allocation of accommodation are made in accordance with the COPD and established local criteria which are modified from time to time to meet the demands of prison overcrowding;

[excluded from publication by order of the Court dated 12 September 2025 until further order];

in making decisions relating to accommodating prisoners, the Respondents must prioritise those who, because of the considerations outlined immediately above, are most at risk or would be a risk to the health and safety of others, or the security and good order of the correctional facility, if accommodated in a doubled-up cell;

the decision-making process relating to cell allocation is further complicated by the aging prison population, which brings added vulnerabilities that need to be considered. In many cases, the Respondents are obliged to care for aging prisoners whose needs would likely be best met by an aged care facility;

allocating prisoners to accommodation is a complex and multifaceted decision-making process in which the Respondents must have regard to numerous factors designed to achieve the best outcomes for each prisoner’s health, safety and wellbeing, noting that the prison population is not stagnate [sic. stagnant] and that the needs of prisoners can change quickly;

allocations to double up cells are carefully monitored, and reviewed on request for allocation to the DNDU list;

prisoners in double up cells have access to the assistance and support of psychologists and counsellors employed by the First Respondent, if required, before and during any double up arrangement;

the Applicant was also given the option to nominate another prisoner with whom he might be prepared to share a cell with, a factor which could significantly impact the Applicant’s experience in a double up situation;

many of the things that the Applicant identified as ‘triggers’ for adverse mental health reactions he said he experienced or would experience were things that he would encounter in the prison environment generally, even, more particularly, within his own residential unit block, whether he was in a double up cell or a single cell; and

not being on the DNDU list does not mean a prisoner will necessarily be allocated to a double up arrangement.”

Submissions

153. By Ground 4, the Appellant contends the above passage from the Tribunal’s reasons discloses various errors of law. First, the appellant says that, contrary to s 319H(2) of the CSA, the Tribunal failed to take into account his submissions about the statutory criteria in s 319H(2). Second, he says it is apparent that the Tribunal essentially determined the question of reasonableness on the basis of “adequacy”. In doing so, he contends, the Tribunal necessarily disregarded other relevant considerations under s 319H(2) and took an impermissibly narrow approach to the question. Third, he says that by relying upon its earlier finding that he was able to comply with the terms as a relevant consideration, the Tribunal unduly conflated the relevant tests under s 11(1)(a) and (c) of the ADA. Fourth, he says the proper application of s 205 of the ADA required the Tribunal to take into account the absence of evidence with respect to most of the matters in s 319H(2) of the CSA, as well as his relevant submissions, and that the Tribunal’s failure to do so indicated that it misapplied the onus.

154. By Ground 5, the appellant contends that it was not open for the Tribunal to find that the terms were reasonable. He submits no reasonable Tribunal could have so concluded.

155. The respondents submit that the Tribunal did not err as asserted by Ground 4. They say the reasons of the Tribunal disclose that it did consider the appellant’s submissions concerning the matters in s 319H(2) of the CSA; that it did not take an unduly narrow approach to the question of reasonableness by essentially deciding the matter on the basis of “adequacy”; that it did not conflate the tests in ss 11(1)(a) and (c) of the ADA; and that it did not misapply the onus of proof under s 205 of the ADA.

156. As to Ground 5, the respondents submit that the Tribunal’s conclusion that the terms were reasonable was plainly open on the evidence.

Consideration

157. Section 11(1)(c) of the ADA encapsulates the third statutory element for a claim of indirect discrimination under the ADA. It requires that the term imposed, or proposed, is “not reasonable”.

158. Subject to s 205 of the ADA, under s 204 of the ADA as it stood at the time of the appellant’s discrimination complaint, the appellant bore the onus of proving, on the balance of probabilities, that the respondents had indirectly discriminated against him.⁶⁷ Section 205 of the ADA then further provided that in a case involving an allegation of indirect discrimination, the respondent must prove, on the balance of probabilities, that a term complained of is reasonable. Thus, for the purposes of the s 11(1)(c) element of the appellant’s claim of indirect discrimination, the onus was reversed, and it was the respondents who were required to prove that the terms complained of were reasonable. The Tribunal specifically noted that position in its reasons.⁶⁸

159. Division 3 of Part 12A of the CSA contains several provisions that modify the application of the ADA to the treatment of prisoners by a “protected defendant”, including s 319H that applies to claims of indirect discrimination.

160. Section 319B of the CSA identifies the purpose of such modifications:

“319B Purpose of part and its achievement

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

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

the need to continue to respect offenders’ dignity.

The purpose is achieved primarily by—

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

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

161. Each of the respondents are protected defendants.

162. Section 319H of the CSA provides:

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

This section applies if a protected defendant imposes, or proposes to impose, a term—

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

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

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—

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;

the cost to the protected defendant of imposing an alternative term;

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

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

the budget constraints of the protected defendant;

the resources constraints of the protected defendant;

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;

the need to respect offenders’ dignity;

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

any other matter the tribunal considers relevant.

In this section—

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

163. Although s 11(2) of the ADA provides that whether a term is reasonable depends on “all the relevant circumstances of the case”, in State of Queensland v Tafao (2021) 7 QR 474 (Tafao) it was held that, in a custodial context, s 319H of the CSA qualified the operation of s 11(1)(c) and (2) of the ADA, such that the Tribunal’s consideration of whether a term proposed, or imposed, by a protected defendant was reasonable was confined to the factors listed in s 319H(2).⁶⁹

164. Where s 319H applies, the Tribunal is not necessarily required to consider each of the matters in s 319H(2). What the express language of the subsection makes plain is that the Tribunal must consider “any relevant submission” made about the matters listed in s 319H(2)(a) to (j). The Court in Tafao considered this statutory command was consistent with the burden of proof imposed upon a protected defendant by virtue of s 205 of the ADA, but confirmed that the Tribunal was only obliged to consider a matter falling within s 319H(2) if a submission was made about the matter. The Court further confirmed that the weight to be given to any such submission remained a matter for the Tribunal.⁷⁰

165. The appellant contends that, contrary to the requirements of s 319H(2) of the CSA, the Tribunal failed to consider the submissions he had made about the following matters:the respondents’ demonstrated ability to accommodate the appellant in a single cell without issue up to the time of hearing;the absence of any evidence indicating that these arrangements had any negative impact on the safety, security and good order of the facility, resulted in any increased administrative or operational burden on the respondents, or caused any disruption to the respondents;regardless of the limitations of the built environment at the prison, that it is possible for the respondents to alter the built environment or increase staffing levels if that is necessary to provide the appellant with his basic entitlements whilst maintaining prison security;the legislative framework established by the CSA, the ADA and the HRA;there already being several discretionary based assessment criteria recognising the prisoner’s subjective needs, there would appear to be no prejudice in adding, as a category, a mental health condition potentially falling outside those provided for; andthe medical recommendations of Dr Tie and Dr Lenardon which were in evidence.

166. In my view, the appellant’s complaints cannot be accepted.

167. The matters referred to in (a), (d), (e) and (f) above are not matters listed in s 319H(2) and there was no statutory obligation upon the Tribunal to consider submissions about them. In any event, with respect to (a), the appellant had been accommodated in a single cell up until the time of the hearing because the Tribunal had made an interim order prohibiting the respondents from placing him in a dual occupancy cell until his discrimination complaint was heard and determined; with respect to (d) it is obvious from the reasons as a whole that the Tribunal was well aware that it was determining the issue of reasonableness in the context of the ADA, the CSA and the HRA; with respect to (e), “The prisoner’s known physical and/or mental health, medical issues, disability and/or cognitive impairment” was already a consideration included within the COPD criteria; and with respect to (f), although the matter was not again referred to on the issue of reasonableness, the Tribunal had earlier noted Dr Tie’s letter and it cannot reasonably be inferred that the Tribunal simply failed to consider it, or Dr Lenardon’s evidence, simply because neither matter was referred to on this point.

Ground 7:

The Tribunal erred in finding, at [78]-[79], that the appellant’s right to equality (s 15 HRA) was not limited, by:

misconstruing the scope of the right to equality in that the right:

extends beyond discrimination under the ADA; and

includes a positive obligation upon prison authorities to accommodate a person’s impairment in acts or decisions made, so as to avoid any undue burden on the impairment;

determining the question of limitation of the right to equality solely on the basis of its determination of the ADA complaint; and

alternatively, failing to give adequate reasons for its determination of the appellant’s complaint regarding a breach of his right to equality.

175. The premises for the appellant’s human rights complaint were pleaded in his Statement of Contentions as follows:

“20A. The First and Second Respondents engaged in the following acts and/or made the following decisions:

the First and Second Respondents decided to, and did, require the Complainant to be accommodated in a shared cell from about 12 July 2020 until 19 March 28 September 2021; and

the First and Second Respondents assessed the Complainant as being suitable for shared cell accommodation and/or ineligible for inclusion on the DNDU list on various dates from 1 January 2020 to present including but not limited to: 17 July 2020, 6 October 2020, 27 October 2020, 24 December 2020, 14 January 2021, 6 May 2022 and 27 July 2022.

21. By reason of the conduct acts/decisions outlined in paragraph 20A above, the Respondents:

failed to act or make decisions in a way that was compatible with the Complainant’s human rights (in breach of s 58(1)(a) of the HRA); and/or

failed to give proper consideration to the Complainant’s human rights in making decisions (in breach of s 58(1)(b) of the HRA).”

176. In his written opening and closing submissions the appellant referred collectively to the alleged conduct, assessments and decisions by the respondents as “the decisions”. It is again convenient to adopt the same approach here.

177. Part of the appellant’s human rights complaint concerned the alleged infringement of his right to equality, a right recognised and protected by s 15 of the HRA which states:

“15 Recognition and equality before the law

Every person has the right to recognition as a person before the law.

Every person has the right to enjoy the person’s human rights without discrimination.

Every person is equal before the law and is entitled to the equal protection of the law without discrimination.

Every person has the right to equal and effective protection against discrimination.

Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.”

178. The appellant claimed that the respondents’ decisions contravened s 15(2) because they limited his ability to enjoy his human rights, recognised and protected under the HRA, of equal and effective protection against discrimination (under s 15(4)), the right to life (under s 16), the right to security of person (under s 29) and the right to humane treatment when deprived of liberty (under s 30); and that they separately contravened s 15(4) because they amounted to indirect discrimination.

179. In dealing with this aspect of the appellant’s human rights complaint, the Tribunal noted that for the purposes of s 15 of the HRA the term “discrimination” was defined in the HRA Dictionary as follows:⁷²

“discrimination, in relation to a person, includes direct discrimination or indirect discrimination, within the meaning of the Anti-Discrimination Act 1991, on the basis of an attribute stated in section 7 of that Act.”

180. Then, after briefly reciting the contentions of the parties⁷³ the Tribunal stated:⁷⁴

“[78] The definition of ‘discrimination’ is non-exhaustive and is not limited to that covered by the ADA. We have found above that no indirect discrimination has occurred and we find there has not been any direct discrimination. Further, we do not accept that the decisions limit his ability to enjoy his human rights on a discriminatory basis.

[79] Accordingly, there is no breach of s 15(2) or s 15(4).”

Submissions

181. The appellant submits that the Tribunal’s treatment of this aspect of his claim discloses various errors of law. He says the Tribunal did not undertake the necessary “step-by-step” process of identifying what human rights might be engaged by the respondents’ decisions, considering whether those rights were limited by the decisions, and then determining whether any such limits were justified. Rather, he says, the Tribunal wrongly moved straight to its conclusions that there was no breach of either ss 15(2) or (4) of the HRA. In doing so, the appellant submits that it is apparent that the Tribunal did not consider anything further about the concept of discrimination under s 15, beyond what it had already considered for the purposes of his discrimination claim. This, he submits, was an error of law. He says the Tribunal was obliged to consider the proper scope of the right to equality in s 15, which goes beyond the protections against unlawful discrimination under the ADA and involves not only formal equality before the law but also substantive equality in the content and operation of the law. He submits that the notion of substantive equality encompasses both a negative and a positive obligation to make reasonable adjustments and accommodations to ensure equal protection from discrimination at law or in fact.

182. The appellant further says that even if the decision in Hurst required him to demonstrate that he would suffer serious disadvantage for the purposes of his indirect discrimination claim under the ADA, that was not necessary for a contravention of s 15 of the HRA. He argues that his human right to equality before the law would be limited if there was any infringement on the scope of that right, regardless of its degree.

183. Finally, the appellant submits that the reasons of the Tribunal on this issue were simply conclusionary and do not reveal any reasoning process about how it had approached the scope of the right, and were thus inadequate, amounting to a failure to give reasons.

184. The respondents argue that the Tribunal did not misconstrue the scope of the right to equality under s 15 of the HRA. They say it is pertinent when considering this ground of appeal to examine the limited way in which the appellant had put his case before the Tribunal. In that context, they say the Tribunal gave adequate reasons, noting that it gave further reasons elsewhere on the points raised by the appellant’s complaint.

185. The respondents further submit that it is apparent from paragraph [78] of the Tribunal’s reasons that it did not determine this aspect of the appellant’s claim simply on the basis that there had been no contravention of the ADA.

Consideration

186. It seems to me that Ground 7 obviously involves a mixed question of law and fact. Accordingly, leave to appeal would be required.

187. That aside, I agree with the respondents’ submission that it is essential at the outset to examine the scope of the case put by the appellant to the Tribunal. It is only by doing so that the appellant’s various complaints can be properly understood and evaluated.

188. In that respect, it must be observed that the appellant’s written closing submissions to the Tribunal regarding the alleged contravention of s 15 of the HRA were brief. Relevantly, they contained the following, at paragraph 156:

“The Applicant contends that the Decisions of the Respondents have contravened his right to recognition and equality before the law under s 15 HRA, in particular:

subsection (2) – because the Decisions limit his ability to enjoy his human rights on a discriminatory basis; and

subsection (4) – because the Decisions amount to indirect discrimination for reasons set out above.”

189. The footnote to the submission made in paragraph 156(a) reads:

“Specifically the right to equal and effective protection against discrimination under s 15(4), the right to life under s 16, the right to security of person under s 29, and the right to humane treatment when deprived of liberty under s 30.”

190. Although the appellant’s written submissions further noted that discrimination under the HRA encompassed complementary concepts of direct discrimination and indirect discrimination, and was not limited to what was covered in the ADA, beyond citing s 11 of the ADA (which it will be recalled provides the meaning of indirect discrimination under the ADA) no further submission was made as to what the appellant contended would amount to indirect discrimination for a contravention of s 15 of the HRA. Further, the appellant made no allegation of direct discrimination.

191. As previously noted, the appellant’s counsel primarily relied upon the written closing submissions and made only limited oral submissions in closing argument. Although the appellant’s counsel told the Tribunal that whether the respondents had breached their human rights obligations was one of the issues that the Tribunal would need to resolve, no further oral submissions were made in respect of that matter.

192. With respect to the alleged contravention of s 15(2) of the HRA, the appellant’s case below was limited to the specific human rights noted in the footnote to paragraph 156(a) of his written closing submissions. It is pertinent to note that on this appeal the appellant does not pursue any complaints concerning the Tribunal’s reasons and rejection of two of those matters, being his claims that the respondents’ decisions contravened his right to life (under s 16 of the HRA) or his right to liberty and security (under s 29 of the HRA). Consequently, his complaint on appeal is necessarily restricted to the Tribunal’s consideration and reasons in respect of ss 15(4), 25 (right to privacy) and 30 of the HRA (humane treatment when deprived of liberty).

193. Elsewhere in its reasons, the Tribunal separately considered ss 25 and 30 of the HRA and rejected the appellant’s claims that his human rights under those provisions had been infringed.⁷⁵ The appellant’s Grounds 9 and 11 allege separate errors of law were committed by the Tribunal in respect of its findings on those aspects of his claim, including that the Tribunal had misconstrued the scope of the relevant rights. In those circumstances, I consider it is appropriate to deal with the appellant’s complaints about those matters in their full context when considering Grounds 9 and 11. I simply note here that as the Tribunal gave separate reasons dealing with the appellant’s s 25 and s 30 HRA complaints, which are not said to be inadequate, the appellant’s complaint about a failure to give reasons under the present ground of appeal cannot be sustained.

194. The only remaining aspect of the appellant’s s 15(2) case to consider therefore is his claim that the respondents’ decisions limited his ability to enjoy his human right to equal and effective protection against discrimination under s 15(4) of the HRA. There is overlap, and indeed some circularity, in the appellant’s case below and his arguments on appeal concerning ss 15(2) and (4).

Ground 9:

The Tribunal erred in finding, at [92]-[93], that the appellant’s right to privacy (s 25 HRA) was not limited, by:

misconstruing the scope of the right to privacy in that the right extends to protect against arbitrary interference with physical and mental integrity; and

failing to consider the arbitrariness of decisions which applied a blanket policy that did not accommodate the appellant’s impairment.

199. Section 25 of the HRA provides:

“25 Privacy and reputation

A person has the right—

not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and

not to have the person’s reputation unlawfully attacked.”

200. The appellant claimed that his right to privacy under s 25 of the HRA was infringed by the respondents’ decisions. His case was that his cell was his “home” and that the respondents’ decisions contravened his right to privacy as they amounted to unlawful and arbitrary interferences with his privacy and home life.

201. The Tribunal rejected the appellant’s claims, relevantly stating in its reasons:

“[90] The Applicant submits the decisions interfere with his right to privacy arbitrarily or unlawfully by placing the Applicant in conditions in his cell (which is the equivalent to his home) where:

he is required to tolerate being in close proximity to another prisoner when sharing a cell;

he is subjected to additional light and noise disturbances while trying to sleep; and

this causes him to experience ongoing interferences with his physical and mental integrity.

[91] The Respondents contend that, as there has been no contravention of the ADA, there is no basis to assert unlawfulness and further, that arbitrary interference with privacy is one which is capricious or has resulted from conduct which is unpredictable, or unjust or unreasonable in the sense of not being proportionate to the legitimate aim sought. The Respondents submit that any interference is not, in that sense, arbitrary and must be viewed in the context of the Applicant being a prisoner where his ability to control and/or autonomy in his ‘home’ is necessarily limited.

[92] We agree with the Respondents’ submissions. The interference as described by the Applicant was not arbitrary. It was dictated by the criteria and processes set out in the COPD, there were regular reviews, and counselling and support were available throughout the process. Even when sharing, the Applicant had a separate bunk, was free to come and go from the cell as he pleased and had access 24 hours a day to a common area and detached toileting and shower facilities. Further, even without sharing a cell, the Applicant would be subject to indiscriminate noise and light and would be housed in a Unit with around nine other prisoners.

[93] We find the Applicant’s privacy and home have not been ‘interfered with’ by being required to share a cell, and less so merely by not being placed on the DNDU List.”

Submissions

202. The appellant says the Tribunal’s reasons do not reveal that it properly comprehended or dealt with the fact that the scope of the right to privacy includes freedom from interference with his physical and mental integrity. He further says the Tribunal did not address whether the limit on his right to privacy was disproportionate, extending beyond what was reasonably necessary to achieve the purpose being pursued by the respondents. Thus, he submits, it should be inferred that the Tribunal misconstrued the scope of s 25 of the HRA.

203. The appellant further says that although the respondents’ decisions were made pursuant to its policies, the failure of those policies to accommodate his differences meant that he was discriminated against. He says the imposition of the decisions made under policies which failed to recognise the impacts upon him by virtue of his impairment were arbitrary.

204. The respondents submit that the Tribunal did not misconstrue the scope of s 25 of the HRA. They say the Tribunal’s reasons disclose that it considered the scope of the right in the way the appellant put it at the hearing.

205. The respondents further submit that the appellant’s argument on appeal on the issue of arbitrariness differs to that which he advanced below, in that he now complains that he was subjected to a “blanket policy” which was arbitrary and discriminatory in its effect, whereas before the Tribunal his case was that it was the decisions that were arbitrary. In any event, the respondents say the evidence before the Tribunal showed that the respondents gave detailed consideration to whether or not the appellant should be placed on the DNDU List and its decisions were not arbitrary in the relevant sense.

206. The respondents further say that the issue of whether any limit on the appellant’s right to privacy was “disproportionate” was a factor to be considered by the Tribunal in determining whether any interference with the appellant’s right to privacy was “arbitrary”, which is a different issue to the proportionality test under s 13 of the HRA. The respondents submit that the Tribunal’s reasons show that it correctly understood the difference and properly considered the issue.

Consideration

207. Putting aside the fact that the framing of the present ground of appeal seems once again to involve a mixed question of law and fact, and thus leave would be required to argue the ground, in my view there is no substance to any of the appellant’s complaints.

208. I am not persuaded that the Tribunal misconstrued the scope of the right in s 25 of the HRA. Although the appellant’s submissions at times failed to distinguish between the respondents’ policies and the respondents’ decisions, it does not seem to me that the appellant presented a different case on appeal to that which he pursued below. His complaint before the Tribunal concerned the respondents’ decisions and that remains the focus of his appeal. Again, as with Ground 7, it is pertinent to observe that the Tribunal dealt with and determined the case as put by the appellant. His case was, and remains, that his right to privacy was interfered with by reason of arbitrary decisions made by the respondents. The Tribunal clearly and correctly identified in its reasons, at [90], the nature and extent of his case. That included his assertion that the respondents’ decisions limited his right to privacy because their effect was that he experienced ongoing interference with his physical and mental integrity. I am not prepared to conclude that the Tribunal misconstrued the scope of the right simply because it did not provide more detailed reasons. The reasons given were adequate in the circumstances, particularly when read in the context of the entirety of the Tribunal’s reasons, which detailed the nature and circumstances of the custodial environment in which the appellant was accommodated at the WCC, the content of the respondents’ policies and the reasons for its decisions with respect to the appellant.

209. The appellant’s further argument, that the Tribunal failed to address whether the limit on his right to privacy was disproportionate, does however seem to depart from the way in which he put his case before the Tribunal.

210. Not every interference with a person’s privacy will amount to a contravention of s 25(1) of the HRA. The right to privacy recognised and protected under that section is internally limited in its scope to a person’s right not to have their privacy “unlawfully” or “arbitrarily” interfered with. As the Tribunal correctly concluded in its reasons, at [91], because it had dismissed the appellant’s ADA complaint there was no basis to assert that there had been any unlawful interference with his right to privacy. That left only the question of whether there had been arbitrary interference with the right.

211. On that point, the Tribunal accepted the respondents’ submission that “arbitrary interference with privacy is one which is capricious or has resulted from conduct which is unpredictable, or unjust or unreasonable in the sense of not being proportionate to the legitimate aim sought.” That submission was drawn from Thompson v Minogue, where the Victorian Court Appeal had considered the scope of the cognate provision, s 13 of the (Vic). That interpretation of the scope of the right has been applied in the Queensland context to the meaning of the word “arbitrary” within provisions of the HRA. The Tribunal correctly adopted it as applicable in this instance. The appellant embraced it in his written outline of argument on appeal. By doing so, his case seems to me to depart from the way it was articulated below.

“In the sense that they are unreasonable, unjust, and fail to meet the proportionality test under s 13 of the HRA. The Human Rights Bill 2018 Explanatory Note states at p 22 ‘The notion of arbitrary interference extends to those interferences which may be lawful, but are unreasonable, unnecessary and disproportionate.’”

213. It is evident from this submission that the appellant mistakenly equated the concept of “disproportionality”, for the purposes of determining arbitrariness under s 25, with the proportionality analysis that is undertaken pursuant to s 13 of the HRA when determining whether a human right is subjected to reasonable limits that can be demonstrably justified in a free and democratic society.

214. The concept of proportionality in the present context does not refer to the test under s 13 of the HRA. That point was made plain in the following passage from Thompson v Minogue, where the Court referred to the analogous test in s 7(2) of the Charter and concluded:⁷⁹

“However, the phrase ‘unreasonable in the sense of not being proportionate to the legitimate aim sought’ does not mean that, in determining whether an interference with privacy is arbitrary, direct and express consideration must be given to the matters set out in s 7(2) of the Charter. In other words, the phrase does not incorporate the proportionality analysis in s 7(2). Rather, the phrase requires a broad and general assessment of whether, in all the circumstances, the interference extends beyond what is reasonably necessary to achieve the statutory or other lawful purpose being pursued by the public authority.”

215. It is unsurprising that the appellant has revised his submissions on this point for the purpose of his appeal, to now correctly refer to the idea of proportionality as an aspect of assessing arbitrariness, in the way expressed in Thompson v Minogue. Nevertheless, he persisted with the argument that the Tribunal failed to address the issue of disproportionality at all. In my view, that argument cannot be sustained. The Tribunal correctly approached the issue in the way discussed above and did not err as asserted. The Tribunal’s reasons, at [91]-[93], demonstrate that it considered the point and that it was not satisfied that any interference with the appellant’s right to privacy was arbitrary. Furthermore, those paragraphs must be viewed in the context of the Tribunal’s reasons as a whole, in which the Tribunal had clearly identified the rationale and necessity for shared-cell accommodation and assessments and decisions about inclusion on the DNDU List.

216. I consider the Tribunal’s conclusions concerning the alleged contravention of s 25 of the HRA were correct. The respondents’ decisions were not arbitrary. They were made pursuant to policies and procedures that applied to all prisoners at the WCC. Any interference with his right to privacy resulting from the respondents’ decisions was proportionate to the legitimate aim of ensuring prisoners at the WCC were able to be accommodated in a way that would deal with overcrowding issues while also maintaining the welfare and safe custody of prisoners and the security and good order of the prison. Such an aim was consistent with the functions and powers conferred upon the Chief Executive of QCS, pursuant to s 263 of the CSA.

217. Ground 9 is not established.

Ground 11:

The Tribunal erred in finding at [112]-[119], that the appellant’s right to humane treatment in custody (s 30 HRA) was not limited, by:

at [111]-[112], conflating consideration of justification for any limit with the scope of the right;

at [112], wrongly construing and applying s 5A CSA;

at [113]-[117], misconstruing the scope of the right to humane treatment in custody in that:

the burden of a shared cell on the appellant’s impairment was not considered in determining the scope of the right;

in that light, the factors at [113] (l) - (n) were irrelevant; and

the right does not merely protect from ‘more severe’ treatment (at [117]).

Ground 13:

The Tribunal erred in finding at [131] that any limits to the appellant’s human rights were reasonable and demonstrably justified, and therefore in compliance with s 58(1)(a) HRA, by failing to correctly apply the onus in s 13 HRA.

Ground 14:

(with leave) The Tribunal erred in finding that any limits to the appellant’s human rights were reasonable and demonstrably justified in that:

at [127], it was not reasonably open to find there was no less restrictive reasonably available way of achieving [sic. the] same purpose; and

at [130]-[131], it was not reasonably open to find that any infringement was justified.

218. Because of the somewhat haphazard articulation and revision of the appellant’s grounds of appeal and the way in which the appeal was argued, it is not entirely clear to me whether Ground 14 was ultimately pressed by the appellant. Although senior counsel for the appellant said that none of the factual grounds apart from Grounds 3 and 5 were maintained, she also informed the Court that each of the grounds in the amended notice of appeal, which included Ground 14, were being pursued. While I note that no specific oral submissions were made about Ground 14 during the hearing of the appeal, as I remain uncertain as to the final position taken by the appellant, I will address Ground 14. Each of these three grounds are related and it is convenient to deal with them together.

219. Section 30 of the HRA provides:

“30 Humane treatment when deprived of liberty

All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

An accused person who is detained or a person detained without charge must be segregated from persons who have been convicted of offences, unless reasonably necessary.

An accused person who is detained or a person detained without charge must be treated in a way that is appropriate for a person who has not been convicted.”

220. The appellant’s claim in the Tribunal was that the respondents’ decisions contravened his human right to humane treatment as a prisoner, as recognised and protected by s 30(1) of the HRA. The appellant argued this was so because of the significant impacts on his health occasioned by being forced to share a cell; where the evidence showed that he had a history of attempting suicide; where he had been assessed to have a chronic risk of suicide; and where his mental health had deteriorated when he was required to share a cell, with a consequent increase in his risk for self-harm and suicide. In those circumstances, the appellant contended, there was a high likelihood of his mental health deteriorating to the point of suicidality, which was not consistent with the positive obligation upon the respondents to implement positive measures that addressed threats to his life. He argued that this limit upon his human rights constituted a severe infringement on his personal integrity, leading to him suffering mental harm.

221. Sections 5A and 18 of the CSA were relevant to the application of s 30 of the HRA in this case. Those sections provide:

“5A Relationship with Human Rights Act 2019

This section applies to the chief executive’s or a corrective services officer’s consideration of—

the Human Rights Act 2019, section 30(2) in relation to a prisoner admitted to a corrective services facility for detention on remand or a prisoner detained without charge; or

the Human Rights Act 2019, section 30 in relation to managing a prisoner in a corrective services facility where it is not practicable for the prisoner to be provided with the prisoner’s own room under section 18.

To remove any doubt, it is declared that the chief executive or officer does not contravene the Human Rights Act 2019, section 58(1) only because the chief executive’s or officer’s consideration takes into account—

the security and good management of corrective services facilities; or

the safe custody and welfare of all prisoners.

…

18 Accommodation

Whenever practicable, each prisoner in a corrective services facility must be provided with a room that is not shared with any other prisoner.”

222. In rejecting the appellant’s case that his rights under s 30 of the HRA had been infringed, the Tribunal reasoned:

“[112] We accept that overcrowding means it is not practical to accommodate each prisoner in a single cell; that this has required the formulation of criteria to assist in the objective and fair determination of which prisoners are to be placed on the DNDU List; and that the Applicant had not provided sufficient information to indicate he satisfied the criteria at the time the placement decisions were made or when he was considered ineligible for the DNDU List. We also accept that the decisions about accommodation at WCC were made for the security and good management of corrective services facilities and for the safe custody and welfare of all prisoners.

[113] For completeness, and in the event we were wrong to conclude that the decisions were made for the security and good management of the prison or prisoner safety, there was no contravention of the right to be treated humanely. In our view the making of the placement decisions and the DNDU assessment decisions need to be viewed in the context of all the circumstances relevant at the time those decisions were made, relevantly:

WCC is divided into two types of accommodation, residential and secure. The inmates housed at residential (as opposed to secure) have been assessed to be suitable for accommodation requiring a lower level of supervision. As we have observed earlier in these reasons, a prisoner, such as the Applicant, is considered suitable for residential accommodation where they:

require less stringent monitoring and lower levels of supervision to ensure appropriate behaviour;

are capable of responsibly managing their own well-being;

are positively engaged in their imprisonment and not involved in negative incidents or subject to breaches of discipline; and

are not considered a risk of escape.

The cells in residential are approximately 2.2m by 2.7m and generally contain a bed (or bunk bed), table, chair, television and storage for the prisoner’s personal belongings.

The cells have good natural light; views of green outdoor space; are well ventilated; clean and hygienic.

The cells each form one component of a larger Unit Block and are positioned around a large common area. The prisoners have free access to the common area which operates as a dayroom and is, in a sense, part of the cells and is used a bit like a family room/kitchen area. The prisoners in the Unit Block have access to the communal area twenty-four hours a day.

The Unit Block contains a communal laundry and separate communal toilets and showers. The individual cells do not have toilets or showers inside them.

The prisoners schedule while in residential shows they have freedom to move around the cell block and prison facilities during the day and are not confined to their individual cells. The prisoners are each provided a key to their cell. As stated by the Second Respondent in his affidavit:

During the day, prisoners in residential have access to approximately 11 hours (10.85 hours) of communal yard time with the other prisoners from other residential cell blocks. During this time, they are able to access their own cells and the communal areas of their cell block along with locations like open gardens, officers’ station, the library, and exercise areas including a gymnasium and a tennis court.

The doors to the cells contain a window so that the room can be viewed from the outside, and there is no soundproofing in the cells or in the Unit Block.

The Applicant could negotiate to sleep on the bottom bunk were he to share a cell which would expose him to less light disturbance should his cellmate wish to read.

The prisoners can request earplugs which would mitigate any noise disturbance.

The double up arrangements are reviewed fortnightly.

(k) Those asked to share a cell can nominate a fellow inmate they would prefer to share with.

(l) If a prisoner’s mental health condition deteriorates in prison, there are measures and processes in place for reviewing the accommodation arrangements and, if required, placing that person on a ‘safety order’ where they can be appropriately observed.

(m) There was medical evidence about PTSD to the effect that although reminders (or triggers) should be reduced if possible, if all reminders cannot be avoided, then treatment is around exposure to aspects of the original trauma and the development of skills to manage increases in anxiety or distress.

(n) The Applicant had appropriate grounding techniques which he was able to employ if he did experience an increase in his symptoms associated with his PTSD or other mental health conditions.

[114] Of the factors above, we consider the general prison environment, in particular that the prisoners are not kept in their cells during the day but have access to a common area in their freestanding Unit block and to a very large outdoor area, to be of particular importance. The Applicant also had access to other areas, such as the library that he could retreat to if he wanted quiet time to study or read. It is also possible that he could retreat to his cell at times when his cellmate was elsewhere.

[115] Also important, is that the system of placing prisoners with a cell mate had ameliorating features, in particular, that prisoners had the option of nominating a preferred cellmate; there was regular review of double-up arrangements, access to psychologists and counsellors if required, and the assessment process that takes place in considering whether to place a prisoner on the DNDU List is thorough and fluid, that is, a prisoner is not precluded from re-applying if previously unsuccessful.

[116] We are not satisfied that the decisions amount to treatment other than the hardship or constraint that results from being incarcerated in a prison where some are required to share a cell. While we accept that most, if not all, prisoners would aspire to be placed in a single cell, it is not to treat a person inhumanely to require them to share a cell in the circumstances we have outlined above. This equally applies, in our view, to the Applicant, who has not demonstrated he will suffer any prejudice were he to share a cell that would amount to treating him inhumanely.

[117] The right to be treated humanely does not equate to a freestanding right to be accommodated in a single cell, even in taking into account the Applicant’s circumstances. Cases where a comparable right has been limited are far more severe than the treatment currently under challenge in that they commonly involved actual bodily injury or the infliction of intense physical or mental suffering.

[118] The placement decisions made and the refusals to place the Applicant on the DNDU List does not, in our view, mean the Applicant was treated inhumanely or in a way that failed to respect his inherent dignity.

[119] The onus has not been satisfied.”

223. Thereafter, the Tribunal stated:

“[120] We have set out above why, in our view, there have been no breaches of the HRA. We regard the contentions in respect of ss 15,16,17, 25 and 29 as particularly weak. We regard the contentions in respect of s 30 as arguable. We propose, in those circumstances, and notwithstanding our findings, to consider whether any limitation on that right is justified.”

224. Accordingly, the Tribunal then went on to consider whether any limitation of the appellant’s human rights under s 30 was justified in accordance with ss 8(b) and 13 of the HRA, relevantly noting with respect to the matters in s 13(2) of the HRA⁸⁰

“Nature of the human right

[124] The right encapsulated by s 30, is the right of a person deprived of liberty to be treated with humanity and with respect for the inherent dignity of the person. The starting point for analysing the scope of this right has been held to be that persons detained must not be subject to hardship or constraint other than that which results from the deprivation of their liberty.

The nature of the purpose of the limitation

[125] The nature of the limitation is to require prisoners to share a cell with another prisoner unless a prisoner satisfies certain criteria, in which case he will be given a single occupancy cell. The purpose of the limitation is to enable the secure containment of prisoners at certain times within the residential area of WCC given the logistical challenges caused by the number of prisoners exceeding the number of cells. We do not accept the submissions of the Applicant that the purpose is ‘at its most abstract, to maintain prison order’, that is, that there is no necessity to have the applicant share a cell due to overcrowding. In this respect we accept the evidence of the Second Respondent that some prisoners were required to share a cell and that, in the case of the Applicant, there was no reason to give him preferential treatment over the general prison population by guaranteeing he would not have to share a cell.

The relationship between the limitation and its purpose including whether the limitation helps to achieve the purpose.

[126] There is, in our view, a rational connection between any limitation caused by not being guaranteed a single occupancy cell, and the purpose of safely accommodating prisoners in a prison environment where the number of prisoners exceeds the number of cells.

Whether there are less restrictive and reasonably available ways to achieve the purpose

[127] There is, in the present circumstances, no less restrictive or reasonable way of achieving the purpose. We do not accept that making the criteria for the DNDU List sufficiently inclusive so that it included the Applicant, is a reasonably available way to achieve the purpose. The Respondents, in making decisions to accommodate prisoners, must prioritise those who are most at risk or would be a risk to the health and safety of others, or the security of the prison.

The importance of the purpose of the limitation

[128] The purpose of the limitation is to enable prisoners to be safely housed in prison. We accept that this is important and necessary for the prison to be able to function effectively as a prison.

The importance of preserving the human right, taking into account the nature and extent of the limitation

[129] The Applicant submits that the human right infringed is the Applicant’s personal integrity, leading to suffering mental harm. We do not accept that infringing the Applicant’s personal integrity by not placing him on the DNDU List will mean he will suffer mental harm. Further, taking into account the purpose of the limitation and the fact the nature and extent of the limitation is managed and, we accept, reasonable in all of the circumstances, the importance of the purpose of the limitation outweighs the importance of preserving the human right.”

225. The Tribunal then concluded:

“[130] On balance, even if we accepted an infringement of human rights, it is only minimal and, in any event, is outweighed by the need to house a greater number of prisoners than there are cells. Further, the criteria used to select prisoners for the DNDU List are reasonable in all the circumstances and there is no evidence to warrant giving the Applicant preferential treatment, beyond the established criteria. We also note that whether a person is placed on the DNDU List is continually monitored and, if a decision is made for a prisoner to share a cell, the choice of a cell partner is carefully managed.

[131] In conclusion, were we to find human rights had been limited we would find that the limitations were justified for the reasons outlined above.”

Submissions

226. With respect to Ground 11, the appellant’s primary argument is that the Tribunal misconstrued s 5A of the CSA by treating the fact that the respondents had made the decisions for the security and good management of the WCC, or for the safe custody and welfare of all prisoners, as a definitive answer to the appellant’s complaint. He submits that s 5A of the CSA simply permitted such factors to be taken into account when considering the appellant’s human rights as a prisoner; whereas it is apparent from the Tribunal reasons, at paragraphs [112]-[113], that it wrongly considered the existence of such factors was the end of the inquiry and it was not necessary to further analyse any limits upon his right to humane treatment.

227. The appellant further argues that the Tribunal misconstrued the scope of his right to humane treatment by conflating considerations of justification for any limit on the right with the scope of the right; by failing to consider relevant matters; and by considering irrelevant factors. He says these errors are evident from the list of matters enumerated and identified by the Tribunal in its reasons. He reiterates his case that s 30 of the HRA placed a positive obligation upon the respondents to ensure that he would not suffer any greater hardship or constraint than that which was a consequence of imprisonment itself.

228. With respect to Ground 13, the appellant submits that the Tribunal overlooked the fact that under s 13(2) of the HRA, the burden on the respondents to justify a limitation of his human rights was high and that it ought to be strictly imposed in a case such as this where he was a particularly vulnerable individual. He says that, in the absence of evidence to justify the decisions, the Tribunal erred in concluding that the respondents had met their onus. He further submits that the Tribunal erroneously undertook a proportionality analysis at an abstract level that failed to consider his individual circumstances.

229. With respect to Ground 14, the appellant submits that, on a proper application of the onus under s 13(2) of the HRA, the Tribunal’s finding that any limit on his right to humane treatment was justified was unreasonable.

230. The respondents submit that none of the errors asserted by the appellant are established.

231. With respect to Ground 11, they say the Tribunal considered the matter comprehensively; correctly understood the nature and extent of the right under s 30 of the HRA; and did not misconstrue its scope.

232. Regarding the operation of s 5A of the CSA, the respondents appear to make inconsistent submissions. In their written outline of argument, they submit that the effect of s 5A of the CSA is that there will be no contravention of the HRA if the consideration in respect of not providing a prisoner with their own room is made on the basis of the security and good management of a corrective services facility or for the safe custody and welfare of all prisoners. They further submit that is precisely what occurred in this case; but irrespective, they submit the Tribunal went on to consider whether there had been any contravention of s 30 and correctly found that there had not been. In contrast, in oral submissions at the hearing of the appeal the respondents submitted that the Tribunal had not concluded that it was sufficient to find that there had been no limitation on the right if the decisions had taken into account the matters in s 5A, but in any event again stress that the Tribunal went on to consider other relevant factors to determine whether there had been any contravention of the s 30 right.

Consideration

234. The way in which Grounds 11 and 13 are framed again suggests that they involve mixed questions of fact and law and that leave to appeal would be required in respect of those grounds. Ground 14 is again styled as an alleged factual error but as it involves an assertion that findings made by the Tribunal were not reasonably open, in my view it involves a question of law. Irrespective of how the grounds are categorised, in my view none of the errors asserted by the appellant can be established and each of the grounds of appeal fail.

235. With respect to Ground 11, I am not persuaded that the Tribunal misconstrued the scope of the relevant right in s 30(1) of the HRA.

236. It is clear that the Tribunal properly identified the nature and extent of the right in its reasons, at paragraphs [103]-[107]. In doing so, the Tribunal referred to an excerpt from the Explanatory Note to the Bill for the HRA⁸¹ which confirms the underlying principle of s 30 is that “…a person’s rights should only be curtailed to the extent necessary due to the confinement, reflecting that the punishment is intended to be limited to the deprivation of liberty.” Then, at paragraph [105] of its reasons, the Tribunal cited several propositions drawn from the authorities about the scope of s 30(1), consistent with Martin J’s judgment (as his Honour then was) in Owen-D’Arcy v Chief Executive, Queensland Corrective Services,⁸² where his Honour said:

“In Castles,⁸³ it was accepted that the starting point for analysing the scope of this right should be that persons who are detained must not be subject to hardship or constraint other than that which results from the deprivation of their liberty. A necessary consequence of deprivation of liberty is that some rights enjoyed by other citizens will be unavailable or compromised.”

237. Each of these matters were contained in the appellant’s written closing submissions addressing the scope of the right in s 30 of the HRA. In the circumstances, I see no basis for criticism of the Tribunal’s approach. It may perhaps be that the appellant’s complaint is premised on the fact that the Tribunal did not cite all of the authorities and international human rights instruments which he had referred to in his written closing submissions as matters that may inform the application of s 30. In my view, it was not necessary for the Tribunal to do so and there is no merit in his complaint.

238. I also do not accept the appellant’s argument that the various other matters referred to by the Tribunal in its reasons show that it somehow misconstrued the scope of the right in s 30(1) of the HRA. In my view, the factors identified by the Tribunal in its reasons at paragraph [113] and further elaborated upon at paragraphs [114]-[115] were obviously relevant to its consideration of whether the appellant’s human right to be treated humanely when deprived of his liberty had been limited by the respondents’ decisions. They demonstrated that the decisions were made in circumstances of necessity due to the custodial environment and population at the WCC, but that the respondents had procedures and measures in place to reduce the negative consequences of being subjected to a shared cell arrangement. In short, they were all relevant to whether the appellant was treated humanely.

239. The Tribunal’s reference, at paragraph [117], to other cases involving “more severe” treatment than that experienced by the appellant was not integral to its reasoning. It was nothing more than a passing comment, made to illustrate its assessment of the comparatively minor nature of the hardships experienced by the appellant as a person deprived of his liberty subjected to the respondents’ decisions. It does not evidence a misconstruction of s 30 of the HRA.

240. There is also no basis for the suggestion that by referring to the matters canvassed in its reasons, at paragraphs [111]-[112], the Tribunal conflated considerations of justification for any limit on the s 30(1) HRA right with the scope of the right. The matters noted there by the Tribunal were relevant to the operation of ss 5A and 18 of the CSA and it is evident that was the context in which they were considered.

241. There is more substance to the appellant’s argument that the Tribunal misconstrued s 5A of the CSA. I accept that in its reasons, at paragraphs [112]-[113], the Tribunal interpreted and applied s 5A of the CSA in the way the appellant submits. That was an error of law. The effect of s 5A is to declare that there will be no contravention of s 58(1) of the HRA only because the Chief Executive of QCS or a corrective service’s officer takes into account the security and good management of corrective services facilities, or the safe custody and welfare of all prisoners, when considering a prisoner’s human rights under s 30. In the present case, the effect of s 5A of the CSA was that it was permissible for those matters to be considered and the respondents did not act contrary to s 58(1) of the HRA by taking them into account when making the relevant decisions of which the appellant complained. Where engaged, s 5A does not determine the issue of whether a person’s human rights under s 30 of the HRA have been limited. It remains necessary to consider other relevant matters, together with the matters taken into account under s 5A of the CSA, to ensure compliance with s 58(1) of the HRA.

Ground 15:

The Tribunal erred in finding that the respondents had given proper consideration to human rights, under s 58(1)(b) HRA, in that:

at [140] and [141], the Tribunal wrongly applied a Browne v Dunn inference against the appellant, from the failure to put the conclusionary question about proper consideration of human rights, in circumstances where:

the appellant’s contentions made clear that was his claim;

the onus rested upon the respondents to demonstrate compliance; and

other questions were put in cross-examination going to those individuals’ proper consideration of human rights; and

at [147], the Tribunal wrongly applied the onus upon the respondents to demonstrate compliance with s 58(1)(b) HRA; and

(with leave) it was not reasonably open to so find.

246. Section 58 of the HRA relevantly provides:

“58 Conduct of public entities

It is unlawful for a public entity—

to act or make a decision in a way that is not compatible with human rights; or

in making a decision, to fail to give proper consideration to a human right relevant to the decision.

…

For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to—

identifying the human rights that may be affected by the decision; and

considering whether the decision would be compatible with human rights.

…”

247. The appellant’s case before the Tribunal was that the respondents had contravened s 58(1)(b) of the HRA. He contended that apart from a general review and some criteria reflected in the relevant forms, in making its decisions not to place him on the DNDU List the respondents had simply applied the COPD Criteria and the Local Criteria, without in fact considering his relevant human rights, or the nature of those rights and the limits being placed upon them.

248. In support of his argument, in his written opening submissions to the Tribunal the appellant emphasised that the respondents had not filed any evidence that indicated that they had given any consideration, let alone “proper consideration” to his relevant human rights in making its decisions.

249. After summarising the positions of the parties, in its reasons for its decision the Tribunal went on to consider the relevant evidence in respect of the conduct of the respondents in undertaking its DNDU List assessments and associated accommodation decisions in respect of the appellant. In doing so, it noted that there had been three DNDU List assessments, conducted variously by Ms Ciera Stafford, Ms Trudy Sheffield and Mr Andrew Connellan.

250. With respect to Ms Stafford’s assessment, the Tribunal stated:

“[139] Ms Ciera Stafford gave evidence, in effect, that when conducting DNDU assessments, she would, amongst other things, have regard to the COPD and that she had received training in relation to human rights legislation that had come into force in January 2020 which did not change her assessments as she had ‘always been adhering to those rules’.

[140] It was not put to Ms Stafford in cross-examination that she did not consider the Applicant’s human rights when undertaking her assessment of him.”

251. Then, with respect to Ms Sheffield’s assessment, the Tribunal stated:

“[141] On 6 May 2022, Ms Trudy Sheffield undertook a DNDU Assessment for the applicant, in relation to which we accept that:

Ms Sheffield had received mandatory human rights training in around 2019/2020;

Ms Sheffield had regard to the COPD when undertaking DNDU assessments;

Generally a prisoner is not strictly assessed against the criteria listed in the assessment form, rather the form acts as a ‘kind of skeleton’ for guiding the assessment. The assessment involves examining the individual nuances of each individual and whether there are any compassionate grounds for a single cell placement; how doubling-up may affect their wellbeing, both physically and mentally and whether there are any other strategies that can be put in place to alleviate any concerns about being doubled-up.

as to what human rights considerations were made by her when applying the DNDU assessment criteria, her oral evidence was:

Always giving due consideration to the individual characteristics of the case, a thorough collateral check, ensuring that we’re going in and undertaking an informed assessment, considering the needs of the individual in front of you, allowing them to speak and be heard, and where possible, if the person who’s experiencing a level of distress or cannot be managed in Double Up accommodation, attempting to communicate with other staff to have them in single cell accommodation.

[142] It was not put to Ms Sheffield in cross-examination that she did not give consideration to the Applicant’s human rights when undertaking her assessment.”

252. Finally, with respect to Mr Connellan’s assessment, the Tribunal noted and concluded:

“[143] On 19 July 2022, Mr Andrew Connellan, Senior Psychologist undertook a DNDU Assessment of the Applicant in respect of which he gave evidence that:

he was aware of human rights legislation having been implemented and would have received training conducted at the prison in relation to that;

his usual practice was to, relevantly, assess a prisoner against the COPD, and, submit his work for review by Ms Sheffield;

his assessment had regard to the human rights of the Applicant.

[144] On 27 July 2022, Mr Connellan completed his report of the DNDU Assessment. We note that Mr Connellan was not seriously challenged on that evidence and that it was not put to Mr Connellan in cross-examination that he did not give consideration to the Applicant’s human rights when undertaking his assessment on 19 and 27 July 2022.

…

[147] The DNDU assessments and the decisions that followed not to place the Applicant on the DNDU List were decisions that needed to be made in accordance with s 58(1)(b). On the whole of the evidence we are satisfied that the assessment preceding the DNDU decision and the decision made on 27 July 2022 that the Applicant did not meet the criteria that warrants single cell placement, gave proper consideration to human rights relevant to the decision. The decision reached on that occasion was, in effect, the same as decisions earlier reached, including in May 2022 and June 2021.

[148] We have found that there has been no breach of the Applicant’s human rights. We have also found that the assessments and decision made in July 2022 not to place the Applicant on the DNDU List was made in accordance with s 58(1)(b).”

Submissions

253. The appellant submits the Tribunal committed various errors of law and ultimately reached a conclusion that was not reasonably open to it on the evidence adduced at the hearing.

254. He submits that there was no evidence presented by the respondents to show that the relevant prison psychologists or counsellors had actually given proper consideration to the appellant’s human rights, as required by s 58(1)(b) of the HRA. He stresses that in circumstances where that matter was clearly in issue, and where it was one upon which the respondents bore the onus of proof, the evidence relied upon by the respondents was inadequate and the Tribunal could not have been satisfied that they had given proper consideration to his relevant human rights. He further submits that by noting that the evidence given by Ms Stafford and Ms Sheffield was not challenged, it is implicit that the Tribunal wrongly reasoned the rule in Browne v Dunn⁸⁵ would allow it, without more, to accept the general evidence of those witnesses. The appellant contends the rule in Browne v Dunn had no application whatsoever. Furthermore, he says, bearing in mind that the respondents bore the onus of proof, the Tribunal was required to consider the sufficiency of the evidence on the point that had been adduced by the respondents and, had it done so, it could not reasonably have reached the conclusions it did.

255. As for Mr Connellan’s assessment, the appellant points out that it occurred after he had made his complaint and therefore it could not assist the Tribunal to determine whether the respondents had given proper consideration to his human rights when undertaking the assessments that are the subject of his complaint. In any event, he submits that whilst Mr Connellan may have identified his relevant human rights, his assessment was perfunctory and showed no understanding of those rights, nor how they would be impacted, and thus his assessment also did not comply with s 58(1)(b) of the HRA.

256. In their written outline of submissions for the appeal the respondents initially submitted that the Tribunal did not err in any of the ways the appellant contends. They submitted it was evident from the Tribunal’s reasons that it correctly identified the matters to be considered in respect of s 58(1) of the HRA; that there was sufficient evidence adduced concerning the assessments undertaken and their compliance with s 58(1)(b); and that it was open for the Tribunal to find that they had given proper consideration to the appellant’s relevant human rights when undertaking each of the DNDU List assessments.

257. Subsequently, in oral submissions at the hearing of the appeal, the respondents conceded that the evidence of the earlier assessments undertaken by Ms Stafford and Ms Sheffield may not have been sufficient to show that they had complied with s 58(1)(b) of the HRA. Nevertheless, they maintain that the evidence shows Mr Connellan later undertook a far more detailed assessment which did comply with s 58(1)(b), and that his assessment was relevant as it superseded the earlier assessments.

Consideration

258. Save for particular (c), which again asserts that the finding made by the Tribunal was “not reasonably open”, Ground 15 once again seems to involve a question of mixed law and fact, requiring leave to appeal.

259. In my view, the concessions made by the respondents during the hearing of the appeal concerning the inadequacy of the DNDU List assessments undertaken by Ms Stafford and Ms Sheffield were properly made. Having considered the content of the documented assessments and the evidence given about them by the relevant witnesses, I am satisfied the respondents failed to give proper consideration to the appellant’s human rights on those occasions and their conduct contravened s 58(1)(b) of the HRA. That being so, it is not necessary to further consider the appellant’s Browne v Dunn argument concerning the Tribunal’s approach to the evidence of those witnesses.

260. However, that is not the end of the matter. The relevance and substance of the further assessment undertaken by Mr Connellan remains to be considered.

261. On the point of relevance, I reject the appellant’s submission that Mr Connellan’s assessment was not relevant, as it was conducted post-complaint. The appellant made no submission to the Tribunal, either orally or in writing, that Mr Connellan’s assessment was irrelevant or unable to be considered by the Tribunal. On the contrary, it formed part of his own case.

262. The original complaint referral lodged with QCAT by the QHRC noted, “Any alleged breach of human rights may be considered by the tribunal pursuant to s 59 of the HR Act.” Whilst that was perhaps simply an acknowledgment that a human rights complaint was “piggybacked” on the discrimination complaint, the appellant later went on to detail the extent of his human rights complaint, which clearly extended to the assessment undertaken by Mr Connellan.

263. It is to be recalled that in his Statement of Contentions, the appellant identified the following relevant decisions that were the subject of his human rights complaint:

“20A. The First and Second Respondents engaged in the following acts and/or made the following decisions:

(a) the First and Second Respondents decided to, and did, require the Complainant to be accommodated in a shared cell from about 12 July 2020 until 19 March 28 September 2021; and

(b) the First and Second Respondents assessed the Complainant as being suitable for shared cell accommodation and/or ineligible for inclusion on the DNDU list on various dates from 1 January 2020 to present including but not limited to: 17 July 2020, 6 October 2020, 27 October 2020, 24 December 2020, 14 January 2021, 6 May 2022 and 27 July 2022.

21. By reason of the conduct acts/decisions outlined in paragraph 20A above, the Respondents:

failed to act or make decisions in a way that was compatible with the Complainant’s human rights (in breach of s 58(1)(a) of the HRA; and/or

failed to give proper consideration to the Complainant’s human rights in making decisions (in breach of s 58(1)(b) of the HRA).”

264. It is therefore apparent that it was the appellant’s case before the Tribunal that the respondents had contravened s 58(1)(b) of the HRA when carrying out each of the specified DNDU List assessments, which included the 27 July 2022 assessment undertaken by Mr Connellan. The appellant reiterated the relevant date span of the subject assessments, including the 27 July 2022 assessment, in his subsequent written opening and closing submissions.

265. For their part, amongst other things contained in their written closing submissions, the respondents relied upon the assessment undertaken by Mr Connellan in answer to this aspect of the appellant’s human rights complaint.

266. That being so, it seems to me that determination of the present ground ultimately turns upon consideration of the adequacy of Mr Connellan’s assessment and his evidence on the issue.

267. Before turning to the evidence, I will address the issue about what is required for a public entity to give “proper consideration” to a person’s human rights.

268. The use of the adjective “proper” in s 58(1)(b) requires a standard of consideration higher than that generally applicable at common law for taking into account relevant considerations.⁸⁶ It is an exercise that must be approached in a common sense and practical manner.⁸⁷ As s 58(5) of the HRA makes plain, it includes, but is not limited to, identifying the relevant human rights that may be affected by the decision in question and considering whether the decision would be compatible with human rights. It involves understanding, in general terms, which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. It will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person, and that countervailing interests or obligations were identified.⁸⁸ Compliance with s 58(1)(b) of the HRA need not involve a sophisticated legal exercise.⁸⁹

269. With those principles in mind, I now turn to the evidence of Mr Connellan’s assessment.

270. Mr Connellan provided an affidavit in which he deposed to the following matters. He was a senior psychologist employed by QCS at the WCC. He was familiar with the process of cell allocation and the DNDU List. When a request to be placed on the DNDU List was made by a prisoner, it was usual practice for a senior psychologist, such as himself, to allocate the assessment to be performed by a counsellor or a provisional psychologist. Where he conducted the assessments, it was his usual practice to review collateral material, including case notes and other records held on IOMS (QCS’s “Integrated Offender Management System”); to interview the prisoner; to assess the prisoner against the relevant criteria, which he understood came from the Cell Allocation COPD; to submit his assessment document to Ms Sheffield, another senior psychologist, for her review and discussion; and to then inform the prisoner of the outcome of the assessment.

“Request for Do Not Double Up assessment: an email from Crown Law legal representative (date 14 July 2022) was forwarded to the author through Wolston CC management, requesting an updated assessment be conducted to determine shared cell suitability for prisoner Mizner in light of newly obtained file material.

I recognise that this decision may impact Mr Mizner’s recognised human rights under the Human Rights Act 2019, including the right to recognition and equality before the law, protection from torture and cruel, inhuman or degrading treatment, right to privacy and reputation, right to liberty and security of person, and humane treatment when deprived of liberty. I considered whether any other rights could be impacted by this decision but determined that no other rights were relevant.

A decision about whether Mr Mizner is placed on the ‘Do Not Double Up List’ will affect accommodation decisions made about Mr Mizner while in custody and inclusion on the list affords him a certainty and right that other non-qualifying prisoners are not afforded, in the sense that decision makers would be prevented from placing Mr Mizner with other prisoners (at least until a decision is made to remove him from the list).

A decision to not place Mr Mizner on the list could, or could be seen to, limit the above-mentioned human rights especially where Mr Mizner’s circumstances and situation do in fact warrant inclusion on the list, or are such that QCS is obliged to afford him and/or other prisoner’s extra protection (which should be afforded to any prisoner who qualifies for placement on the list) through Mr Mizner’s placement on the list.

When making my decision I must have regard to the section 13 factors of the Human Rights Act 2019, including:

the nature of the human right:

The human rights of relevance centre on the need to respect Mr Mizner’s dignity and provide for the humane containment, supervision, and rehabilitation of prisoners in QCS custody. This is in line with section 18 of the Corrective Services Act 2006 which states that ‘whenever practicable, each prisoner in a corrective services facility must be provided with his or her own room’.

However, the Human Rights Act 2019 also recognises that human rights can be subject to limitations that are demonstrably justified.

the purpose of limiting human rights:

The purpose of consideration about placement on the do not double up list is to safely and appropriately allocate all prisoners to the most suitable accommodation within a corrective services facility, which must include regard for the safe custody and welfare of all prisoners, and the security and management of all corrective services facilities. The do not double up list is created to ensure, amongst other things, that high needs prisoners who require a single cell for medical purposes, or prisoners who pose the highest risk to themselves or those around them, are guaranteed placement in a single cell to account for the safety and security of all prisoners and the centre. Only the highest-risk or the highest needs prisoners are placed on the do not double up list given the limited availability of cells at the centre, and if not placed on the list, a prisoner can either be placed in a single cell or a shared cell, as required, due to operational constraints or prisoner population stressors.

The appropriate allocation of cells and the placement of prisoners on the do not double up list (which means they cannot share a cell in any circumstance) must be considered in the context of Wolston Correctional Centre currently operating at over 100% built cell capacity which means that every prisoner cannot be guaranteed their own cell, and that prisoners will be required to share cells to account for the safe custody and welfare of all prisoners, and for the security and management of the centre.

the relationship between the limitation and the purpose:

Limiting Mr Mizner’s human rights by not placing him on the do not double up list does not mean he must automatically be required to share a cell; it instead means that he has been assessed as being able to be safely accommodated in either a single or shared cell as required by Wolston Correctional Centre to account for operational needs, and for the safety and security of all prisoners and the centre.

Further, before Mr Mizner is required to share a call in the future, a further assessment of his human rights must occur, along with an assessment of the suitability of him sharing a cell with the specific prisoner contemplated.

whether there are any less restrictive and reasonably available ways to achieve the purpose:

If each prisoner who requests a single cell and does not otherwise meet the criteria to be placed on the do not double up list is granted that request, then a significant number of prisoners will not be able to be placed into cells at all due to capacity issues and the number of built cells at the centre. These prisoners will need to be housed in hallways and in other common areas like kitchens or other shared spaces that are not designed as sleeping quarters. This will pose safety and security concerns, and it is arguable that housing prisoners in these locations is less humane and is more limiting to those prisoners’ human rights than the decision to not place Mr Mizner on the do not double up list (where he could still be placed in either a single or shared cell as required).

Given the capacity issues within the current infrastructure, there are no other reasonably available ways to ensure that prisoners are safely accommodated at Wolston Correctional Centre.

By not placing Mr Mizner on the do not double up list, this helps to achieve the purpose of ensuring that only the highest needs and the highest risks prisoners are guaranteed a single cell while other prisoners who can share cells as required, do, which contributes to the safety of all prisoners, and the safety and security of the centre overall.

Collateral:

A pre-sentence psychological report was conducted by Dr Gavan Palk. This report presented with a focus on prisoner Mizner’s offending and associated risk of recidivism, though provided additional information with respect to mental health diagnoses and historical trauma.

To summarise, the report makes the following observations: prisoner Mizner meets the criteria for Borderline Personality Disorder, has a self-reported diagnosis [sic. of] Post-Traumatic Stress Disorder, has an acquired Traumatic Brain Injury, has a history of childhood sexual and violent abuse. It should be noted that while such diagnoses and background factors may predispose the prisoner to an increased subjective level of distress when exposed to various stressors, they do not qualify the prisoner for placement on the DNDU list.

It is noted within this report (paragraph 12.10) that while prisoner Mizner has previously engaged in assaultive behaviour in his adolescence, and the nature of his offending behaviour was inherently violent and forceful, that he is ‘more likely to be submissive and introverted by nature’. Further, the report notes prisoner Mizner would rather avoid conflicts and aggression. Within an interview with the author, the prisoner elaborated further to state he has made a concerted effort to reduce any potential risk to others that may stem from his trauma background. However, he made statements to the effect that if he felt his safety were threatened, this may increase his risk of harm to others.

Prisoner Mizner is noted to also report physical injuries associated with an historical accident, including injuries to his foot and leg, and occasional reliance on a walking stick. Difficulties associated with these injuries do not qualify the prisoner for placement on the DNDU, as this can be mitigated by ensuring the prisoner’s placement on a lower bunk. Within an interview with the author, the prisoner did not present with limitations in movement.

Prisoner Mizner has a history of suicide/self-harm behaviour in the community and in custody. Available collateral indicates the prisoner had previously employed cutting behaviour as a form of emotional management when in the community. The prisoner has one self-harm episode listed on the Integrated Offender Management System (IOMS), dating between 3 February and 2 March 2017. Available information indicates the prisoner had attempted suicide by self-asphyxiation in the context of being assaulted and taunted by other prisoners and consequently feeling unsafe. He disclosed a previous suicide attempt when incarcerated in a Thai prison involving overdose on prescription medication. A review of case notes indicated prisoner Mizner experiences baseline fleeting suicidal ideation with content involving hanging should his thoughts become too distressing. The prisoner has consistently denied any intent to act upon these thoughts and is able to highlight various protective factors that serve to manage his risk. He has adamantly denied S/DSH ideation, plan or intent when interviewed, outside of acknowledging baseline ideation. He has consistently reported an intention to seek assistance from staff in an effort to avoid engaging in S/DSH behaviour. He has additionally reported a willingness to work with offender development to improve his ability to manage this risk.

Prisoner Mizner discussed his primary motivation for seeking placement on the DNDU list is to assist with emotional regulation and maintain a sense of control over his environment; specifically, to avoid potential triggers for his distress. He outlined these to include interpersonal disputes, disruptions to routine, lack of access to protective activities, sudden noise and light, and being in close proximity to others.

Conclusion:

In light of the above information, prisoner Mizner does NOT meet the criteria for placement on the DNDU list and as such he does not present as needing or requiring to be guaranteed a single cell for the duration of his sentence. He is therefore suitable for accommodation in a shared cell arrangement. This does not mean the prisoner cannot be accommodated in a single cell if operationally viable; rather, the result of the assessment solely determines that he does not require placement on the Do Not Double Up list. His accommodation needs can be managed effectively at the custodial level.

The needs and risks of other prisoners from Mr Mizner, that could be affected by a decision to not place Mr Mizner on the do not double up list, also do not warrant his placement on the do not double up list.

I have further considered the human rights of other prisoners in the context of the decision and consider that the human rights of those high needs prisoners who require a single cell for medical purposes, or prisoners who pose the highest risk to themselves or those around the [sic. them] (as a single cell is required in these circumstances to account for the safety and security of all prisoners and the centre) is in fact supported by my decision to not place Mr Mizner on the do not double up list.

While this decision will impact on his human rights, I am satisfied this is justified after having regards to the safe custody and welfare of all prisoners, and the security and management of all corrective services facilities.

Given the above information, if there is a change to the prisoner’s accommodation (e.g. being placed in a ‘shared cell’), it is recommended psychological services staff be contacted to assess the prisoner’s mental state with particular attention to any increase in his risk of S/DSH behaviour. Psychological services staff can further assist in the identification of a suitable cell mate and provide psychological support through the transition to shared cell accommodation.”

273. When cross-examined by counsel for the appellant at the hearing before the Tribunal, Mr Connellan agreed that he had received human rights training through QCS after the HRA was implemented and recalled that he would have completed a suite of online training modules. His evidence in that respect was supported by other evidence given by the second respondent to the effect that after the HRA was introduced training was rolled out across the state. Mr Connellan further agreed that the DNDU List focused on risk of harm to self or others rather than ongoing detrimental mental health behaviours. Nevertheless, he said he was not constrained by the DNDU List assessment criteria in providing recommendations for the management of prisoners with mental health conditions.

274. As to how he came to undertake the further DNDU List assessment, Mr Connellan confirmed that he had been requested by Chief Superintendent Joel Smith (the second respondent) to undertake the assessment because he had received the report of Dr Palk. He agreed he had undertaken his usual assessment process but was probably a bit more meticulous on this occasion, making sure that he went through the entirety of everything available to him and ensuring that as much information as possible was captured within his assessment. He agreed with the suggestion put to him that his documented assessment in relation to human rights was “very thorough” and said it was more detailed than usual. He further said the Chief Superintendent had given him some guidance in relation to the human rights assessment to be undertaken. He agreed that it was unusual to receive that level of guidance from the Chief Superintendent in relation to a DNDU List assessment.

275. When asked about his assessment of the appellant’s symptoms, Mr Connellan agreed that the appellant reported that he was suffering increased levels of subjective stress but said that was not what he observed. His recollection was that the appellant had told him that if he was to be placed in a shared cell with another prisoner that his level of distress would “skyrocket” but said at that particular time in the interview the appellant did not report a significant elevation of distress. He accepted that the level of distress of any prisoner may change if they were subjected to a shared cell arrangement and said that was so regardless of any mental health diagnosis. He accepted that a person with a mental health diagnosis would generally have their symptoms exacerbated by sharing a cell but was unable to say specifically whether that would occur for prisoners with diagnoses of PTSD, complex PTSD, borderline personality disorder or autism. He said that it would depend in each case on the individual, their triggers, their ability to regulate themselves and what coping strategies they had in place.

276. Having reviewed the relevant evidence, I note that the Tribunal’s observations that Mr Connellan was not seriously challenged on his evidence and that it was not put to him in cross-examination that he did not give proper consideration to the appellant’s human rights when undertaking his assessment is accurate.

Conclusion and Orders

279. Given the nature of the matters raised by this appeal, including the general importance of the relationship between provisions of the ADA, the HRA and the CSA, I would grant the appellant leave to appeal as required. However, as the appellant has not established any of his grounds of appeal, the appeal must be dismissed.

280. During the hearing of the appeal the respondents sought non-publication orders in respect of certain criteria included in the WCC Local Criteria for DNDU List assessments. The Court was provided with a draft of the proposed orders, which was marked for identification “A”. Pursuant to directions made by the Court at the conclusion of the hearing, the respondents subsequently provided an affidavit and further submissions outlining the reasons for such orders. Having considered that material, I am satisfied it is appropriate to make the orders sought for the reasons identified, noting that the appellant did not oppose that course and that similar orders were made by the Tribunal.

281. Finally, as the respondents did not make any submissions that the appellant should pay their costs in the event that the appeal was dismissed, I will assume that they do not seek such an order. However, in the event that I am mistaken about that, orders should be made to allow the parties to provide written submissions on the question.

282. The orders I would make therefore are:

Leave to appeal be granted in respect of Grounds 7, 9, 11, 13 and 15.

The appeal is dismissed.

Unless the respondents seek a contrary order, there be no order as to costs.

In the event that the respondents do seek a contrary order on the question of costs:

a. Within 7 days of delivery of judgment, the respondents are to file and serve written submissions as to the order sought with respect to costs.

b. Within 7 days of receipt of the respondents’ submissions, the appellant is to file and serve written submissions as to the order sought with respect to costs.

c. The Court will decide the appropriate order to be made on the papers.

The Court makes non-publication orders in the terms of the draft proposed orders, which were marked for identification “A” at the hearing on 13 March 2025.

Footnotes

1. Mizner v State of Queensland (Corrective Services) & Anor [2024] QCAT 468 (Judicial Member Forrest, Senior Member Traves) (Reasons). ↩

2. Allesch v Maunz (2000) 203 CLR 172, 180-181, [23] (Gaudron, McHugh, Gummow and Hayne JJ); Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, [14] (Gleeson CJ, Gaudron and Hayne JJ). ↩

3. Fox v Percy (2003) 214 CLR 118, 126-127, [25] (Gleeson CJ, Gummow and Kirby JJ); Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550, 558 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ). ↩

4. GJL v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857, [15]-[16] (Kiefel CJ, Gageler and Jagot JJ). ↩

5. (1979) 142 CLR 531 at 552 (Gibbs ACJ, Jacobs and Murphy JJ). ↩

6. Ibid. ↩

7. Fox v Percy, [28]. ↩

8. Robinson Helicopter, [43]; Lee v Lee (2019) 266 CLR 129, [55] (Bell, Gageler, Nettle and Edelman JJ). ↩

9. [2009] 1 Qd R 41, [6]. ↩

10. [2024] QCA 215, [10]; [147]. ↩

11. Reasons, [25]. ↩