PROCEEDING Application to strike out or dismiss complaint.

DEPUTY PRESIDENT: The decision on this application is that the complaint is dismissed. The decision is made after taking into account the application and the material filed in relation to the application and also after taking into account the Tribunal's power either on application or on its own initiative to strike out or dismiss a complaint under s.75 of the Victorian Civil and Administrative Tribunal Act 1998.

In my order I have provided a mechanism for the respondent to apply for costs. I now give my reasons for decision on the application.

The respondent, whom in these reasons I call Group 4, has applied to this Tribunal to strike out this complaint under s.109 of the Equal Opportunity Act 1995 which I call the Equal Opportunity Act or s.75 of the Victorian Civil and Administrative Tribunal Act 1998 which I call the VCAT Act.

Section 109 applies only to complaints before they are referred to VCAT. Since this complaint has been referred to VCAT the provisions of s.75 of that Act apply. The application is made on all the grounds mentioned in s.75(1). That is that the complaint is frivolous, vexatious, misconceived, lacking in substance or is an abuse of process.

The approach which the Tribunal takes to provisions of this kind and to similar provisions, particularly in relation to s.44(c) of the now repealed Equal Opportunity Act 1984 is set out in the judgment of the Court of Appeal in Rabel v. State Electricity Commission [1998] 1 VR at102. That decision was followed in Norman v. Australian Red Cross Society, a decision of VCAT dated 27 November 1998.

That approach, in so far as it relates to this case, is this. The Tribunal is cautious before summarily terminating a proceeding at a preliminary stage before evidence has been heard and so depriving a litigant of the chance to have the matter heard in the ordinary course. It will only do so if a respondent satisfies it that it is clear that there is an abuse of process or on any of the other grounds mentioned in s.75(1), the case is manifestly unsustainable in law or in fact.

If a respondent relies on a defence or exception under the Equal Opportunity Act as a ground to have the case struck out, the Tribunal will need to be satisfied that the exception so clearly applies that the claim is manifestly unsustainable. In this case I have before me the complaint, the particulars of complaint and the submissions from the parties on the present application.

I first deal with a general submission made by Group 4. Group 4 says that Mr Rainsford's claim is not sufficiently particularised in terms of the Equal Opportunity Act. That it is not clear as to what provision of that Act the complainant relies on. First, in my view, Mr Rainsford's material should be interpreted in a non technical and non pedantic way and not in the same way or with the same formality as a pleading.

See as to this Nestle Australia Limited v. Equal Opportunity Board [1990] VR at 805. The Equal Opportunity legislation sets up an easily accessible mechanism by which a person who claims contravention of the Act, whether a lawyer or a non lawyer, can claim redress for that contravention. Mr Rainsford is unrepresented and clearly does not have comprehensive knowledge of the terms of the Equal Opportunity Act.

I do not think that it is the function of a strike out proceeding to shut out at this early stage an unrepresented Complainant where the Tribunal considers that the allegations are capable of constituting a contravention of the Equal Opportunity Act. This is not to say, of course, that at the hearing the claim will be found proven. Of course, that will depend on the evidence. It is also not to say though that the Tribunal may not require the complainant's case to be further particularised by particulars of complaint. I approach the proceeding on this basis.

I also approach this proceeding taking Mr Rainsford's case at its highest. That is, I assume for the purposes of this proceeding, that he will be able to prove the facts that he alleges. The fact that Group 4 may dispute some of the allegations of fact does not of itself mean that the proceeding should be struck out. Rather, the disputed allegations of fact cannot be finally determined until there is a hearing at which evidence is given and tested under cross-examination.

I first set out on a reading of Mr Rainsford's material as a whole what in my view his allegations are and how he characterises them in terms of the Equal Opportunity Act. Mr Rainsford is a prisoner at the Port Phillip Prison. That prison is managed by Group 4. He was, initially, what I might call a mainstream prisoner but is now called and classified as a protection prisoner.

He says that he and other protection prisoners at Port Phillip are treated worse than the mainstream prisoners at the prison. He says that the treatment, the differential treatment and disadvantageous treatment is the following:

(a) Pending processing through prison reception, protection prisoners are placed in a cell with a steel bench and no drinking or toilet facilities whereas mainstream prisoners are placed in a waiting room with cushioned seats, television, tea and coffee making facilities and toilet facilities.

(b) Protection prisoners are processed through reception after mainstream prisoners. So that protection prisoners have to wait in the holding cell for up to five or six hours.

(c) Protection prisoners have restricted access that is for a specified number of hours in a week only to gym and library facilities at the prison and to education provided to the prisoners by the Batman TAFE whilst mainstream prisoners have unrestricted access to these things.

There is some suggestion in Mr Rainsford's material that there may be differential access to other facilities by protection prisoners in comparison with mainstream prisoners and also differential treatment of protection prisoners and mainstream prisoners by prison staff. These claims are not particularised in any of the material before me and are vague. I do not treat them as part of this claim.

Mr Rainsford claims discrimination by Group 4 through its staff in its provision of services. Section 42 of the Equal Opportunity Act prohibits one person from discriminating against another and I quote relevantly, "(a) by refusing to provide services to the other person; (b) in the terms in which services are provided to the other person; and

(c) by subjecting the other person to any other detriment in connection with the provision of services to him or her".

Properly interpreted, I do not consider that Mr Rainsford is claiming indirect discrimination. That is that Group 4 have imposed on him a condition or requirement with which he, a person with an attribute, does not or can comply, with which a high proportion of people without that attribute do or can comply and which is not reasonable. See s.9 of the Equal Opportunity Act.

In my view Mr Rainsford is claiming direct discrimination. Under s.8 of the Equal Opportunity Act direct discrimination occurs if a person treats someone with an attribute less favourably than in the same or similar circumstances the person treats or would treat someone without that attribute or with a different attribute. The attribute must be a substantial reason for the treatment.

Mr Rainsford is alleging that his treatment and the treatment of other protection prisoners was less favourable than that of mainstream prisoners in the ways I have mentioned. On a reading of this material as a whole, his allegations as to the basis of this treatment are these. He says that 60 to 80 per cent of protection prisoners, including himself, either have a mental or psychological disability or impairment or that Group 4 imputes to them such an impairment.

He says that this imputed or actual impairment is evidenced by the greater access to psychological care that is given to protection prisoners than to other prisoners. A mental or psychological disease or disorder is an impairment as defined under s.4 of the Equal Opportunity Act. The impairment is an attribute listed in s.6.

Under s.7(2)(d) of that Act discrimination on the basis of an attribute includes discrimination on the basis of a presumed attribute. Mr Rainsford is also alleging that the treatment is on the basis of the attribute which I, in these reasons, call personal association. One of the attributes listed in s.6 of the Act is, and I quote, "Personal association, whether as a relative or otherwise with a person who is identified by reference to any of the above attributes".

Mr Rainsford is saying that he is treated in the way in which he alleges he is because of his association with the other protection prisoners where those others either have an actual or presumed impairment. I now come to Group 4's submissions.

Group 4 first says that it does not provide services to Mr Rainsford but rather to the Department of Justice and to the Victorian Government. That is to the State of Victoria. I do not agree with its submissions. Although there is little material in Group 4's submission on this point, it appears that the company manages prisons pursuant to the Corrections Act 1986. I only deal with the provisions of that Act in so far as they relate to prisons because they are relevant to this case.

The Corrections Act is the Act under which prisons are established, see part 2. It is clear from that Act that it has two broad aims. The first aim is security, to provide for the security and good order of prisons and the safe custody of prisoners. The second aim is a welfare aim, to provide for the welfare of prisoners. I do not need to comment on the Act's provisions in detail. Suffice to say that the purposes of the Act are reflected in the powers and functions given to the Secretary of the Department of Justice, prison governors and other prison officers. See for example ss.1, 8A(2), 19(3), ss.20-23, part 6 and also the Corrections Regulations 1998 parts 3 and 5.

I have no doubt that the secretary to the Department and prison staff provide welfare services to prisoners. An idea of the nature of those services can be gained from s.47 of the Corrections Act which relates to prisoner's rights. It covers such matters as access to the open air, to adequate food, clothing, mental and dental care. To the reception of letters, to visits and to education. There are numerous cases in this and other anti-discrimination jurisdictions which have reached a similar conclusion to mine. See for example Clarkson v. Governor of the Metropolitan Reception Prison [1984] EOC 92-153, Jolley v. Director General of Corrections and Another 1985, EOC 92-124, Henderson v. Victoria [1985] EOC 92-105 and 1983 EOC 92-027, Cameron v. Western Australia [1995] EOC 92-732, A Complainant v. State of Western Australia [1994] EOC 92-610, NC & Others v. Queensland Corrective Services Commission [1998] EOC 92-940.

Under part 2A of the Corrections Act the Minister, on behalf of the Crown, may enter into a correctional services agreement with a person or body and the secretary for the Department of Justice, on behalf of the Crown, may enter into a management agreement with a person or body. The purpose of each of these agreements is stated to be the provision of correctional services. See ss.8B and 9. Correctional services include prisons.

It is unclear from Group 4's submissions under which kind of agreement that company operates but I assume that it operates under one or other of these kinds of agreement. Both of these kinds of agreement must provide for compliance by the contractor with the Corrections Act and regulations and with other relevant legislation. Those agreements must contain performance standards and an indemnity for the Crown and for the person who enters into the agreement, whether it be the minister or the secretary.

Those agreements may leave matters to be determined by specified people. They permit delegation of functions under the agreement and may permit subcontracting. In the case of agreements entered into by the minister, s.8F sets out the limited circumstances in which the minister may intervene in the management of a correctional service which is the subject of the agreement.

Under s.9A the secretary may authorise a contractor or subcontractor under Correctional Services Agreement or a management agreement or their employees to exercise all or any powers or functions under the corrections legislation or under other applicable legislation. The functions being of the secretary or of an officer within the meaning of part 5 or 9. For present purposes those officers broadly include governors of prisons or prison officers.

The circumstances in which an authorisation may be refused or revoked are also set out. Under s.9C(i) a person authorised in this way to exercise functions of a governor of a prison or a prison officer, "Must, for the purposes of this Act and for all other purposes, be taken to be a governor or prison officer".

There is an exception relating to the Public Service Management and Employment Act 1998 which is not relevant here. Sections 9F and 9G provide for the application of the Freedom of Information Act 1982 and the Ombudsman Act 1973 and provide that those Acts apply as if the contractor (as a service provider) or the subcontractor (as the manager of a prison) were, as the case requires, an agency or a public statutory body.

In my view there are two possible interpretations of these provisions. It is not possible to say which of these interpretations is the correct one without further argument and it would not, in my view, be appropriate for this argument to be made on a strike out application. It is appropriate for hearing.

The two possible interpretations are these. The first is that the contractor and under a management agreement or a correctional services agreement, stands in the shoes of the secretary. This is to the extent that the secretary has given authorisation as I have earlier mentioned. So that that person stands in the shoes of a governor of a prison or a prison officer and directly provides welfare services to prisoners.

The second possible interpretation is that the contractor, under a correctional services agreement or under a management agreement, provides welfare services to prisoners as the agent of the Crown. Whichever of these interpretations apply, the contractor is clearly capable of being said to be a service provider under s.42 of welfare services to prisons whether as an agent or as a principal.

As an agent the contractor would be liable under s.102 of the Equal Opportunity Act, that section relevantly provides that an agent who engages in conduct which would, if engaged in by the principal, contravene the Equal Opportunity Act or relevant provisions of it is liable for that contravention.

It follows then that I reject the Group 4's submission that it is only a service provider to the State or to the Department of Justice.

Group 4 next says that it did not know of any impairment suffered by Mr Rainsford and did not impute any impairment to him. This is a matter of disputed fact that the parties should argue at hearing. It cannot found a successful application to strike out the proceeding at this early stage and before evidence. Group 4 next says that Mr Rainsford was classified as a protection prisoner with others because of perceived fears for the safety of these prisoners in the mainstream prison population.

Mr Rainsford does not dispute the reason for his classification, nor does he claim that the classification itself is discriminatory. This brings me then to what I consider to be a fundamental problem with Mr Rainsford's claim. It is to do with the comparitor for the purpose of direct discrimination. The comparison must relate to the same or similar circumstances and must be with a person without the attribute claimed by Mr Rainsford or with a different attribute.

So it must be between Mr Rainsford, a person with an actual or imputed impairment or with personal association with people who have that actual or imputed impairment and prisoners who do not have any of these attributes. One of the difficulties is that the groups that Mr Rainsford seeks to compare, protection prisoners and mainstream prisoners, are not defined by reference to having or not having these attributes.

Mr Rainsford acknowledges that the group, which includes him, that is the protection prisoners, include from 20 to 40 per cent of non impaired people and people to whom impairments are not imputed. He does not say anywhere in his material that the other group, the mainstream prisoners, do not include people with actual or imputed impairments or people defined by their personal association with people who have actual and imputed impairments.

Mr Rainsford wants to compare two groups of prisoners, each with a different classification. In my view the circumstances in this comparison are not the same or similar in the terms used by s.8 of the Act. In my view, because of these difficulties, this claim is incapable of constituting direct discrimination.

I would add that if the true comparitor were other protection prisoners without the relevant attributes the claim of direct discrimination would also fail because, on Mr Rainsford's material, all members of this group, all members of the group of protection prisoners were treated as favourably as each other.

Group 4 also relied on other sections of the Equal Opportunity Act. It relied on ss.46, 69 and 80. It's unnecessary for me to consider these provisions because of my conclusions as to the complaint. Although the respondent has applied to have the complaint struck out, the complaint is, in my view, not curable by amendment.

Exercising the Tribunal's powers under s.75 it is my view therefore that the complaint should be dismissed. In my order I have provided a regime for application for costs if the respondent wishes to make it. Thank you very much.