State of Queensland (Queensland Corrective Services) v Ali [2025] QCATA 76

Ali v State of Queensland [2023] QCAT 109

Anderson v Director General of the Department of Environmental and Climate Change & Anor [2008] NSWCA 337

Brown and Anor v Noosa Constructions Pty Ltd [2012] QCATA 194

Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission & Anor [1997] FCA 1311; (1997) 80 FCR 78

Khan v Minister for Immigration and Citizenship [2011] FCAFC 21

Williams v Minister for the Environment and Heritage [2003] FCA 535

Mr CJ Murdoch KC with E Shorten (instructed by Crown Law) for the applicant

• [1] Raymond Ali claimed that, while he was in the secure protection unit of prison, the State of Queensland (Queensland Corrective Services) ("QCS") discriminated against him. He claimed that, relevantly for this appeal, QCS did not provide him with the means to make toast at breakfast time.
• [2] It is uncontroversial that QCS provided a grill for making toast. It is uncontroversial that other prisoners used the grill to heat ham sandwiches and other pork products. It is uncontroversial that Mr Ali is a follower of Islam and eats only Halal meat. It is uncontroversial that pork is not Halal.
• [3] QCS provided Mr Ali with the means to clean the grill if he wanted to make toast. Mr Ali was not satisfied with this solution. He wanted a separate toaster. QCS did, in fact, provide a separate toaster - after Mr Ali left the prison.
• [4] The Tribunal below determined that QCS did indirectly discriminate against Mr Ali by imposing the term that if a prisoner in the secure protection unit wished to use the grill at breakfast time it would have to be the grill shared by other prisoners.[1]
• [5] QCS has appealed that decision. It submits that the Tribunal below made six errors of law and three errors of fact. In oral submissions, Counsel for QCS submitted the alleged errors amounted to two broad propositions:

(a) the Tribunal below erred in assessing the reasonableness of the cleaning regime against a later available alternative; and

(b) the Tribunal below failed to consider adequately the requirements of s 319H of the Corrective Services Act 2006 (Qld) ("CSA").

• [6] There is a third issue that impacts my consideration of the first two issues: that the Tribunal below did not adequately consider the QCS evidence.
• [7] An analysis of matters that are required to be considered must be 'proper, genuine and realistic'[2] and needs more attention than 'mere lip service'.[3] That requires a proper examination of the evidence. As these reasons show, there is nothing in the reasons of the Tribunal below to indicate that it gave proper attention to the QCS evidence.
• [8] Mr Ali did not appear at the hearing of the appeal. The record shows that he was given ample notice of the hearing and the opportunity to participate in the proceedings. He chose not to do so.
• [9] I will deal with the s 319H issue first.

Section 319H of the Corrective Services Act 2006 (Qld)

• [10] QCS submits that the Tribunal below failed to adequately consider the requirements of s 319H of the CSA.
• [11] The relevant parts of s 319H of the CSA are as follows:

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

(2) 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 -

(a) 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;

(g) 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;

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

• [12] The Tribunal below acknowledged that special provisions apply in the CSA.[4] It acknowledged that the Tribunal was obliged to consider relevant submissions about whether a term was reasonable. It also acknowledged that whether a term was reasonable is an objective test requiring a balance between the nature and extent of the alleged discriminatory conduct and the reasons advanced to support the term plus the CSA considerations.[5]
• [13] There was evidence from QCS officers that a portable toaster:

(a) could be used to light tobacco or other contraband;

(b) could be used to make weapons or to be used as a weapon;

(c) posed the risk that a prisoner will be stood over to surrender its use;

(d) could be stolen;[6]

(e) could be used to heat up a door handle to injure a prison officer; and/or

(f) could (possibly) cause a circuit overload.[7]

• [14] Scott Collins, General Manager of the correctional centre, gave evidence on the decision-making process that led to the cleaning solution. After consulting with other correctional centres, he ultimately determined that providing a separate toaster to be locked in an officer's station would interfere with the security and good order of the facility and impose an unreasonable cost and administrative burden.[8]
• [15] In response to a question from the Member, Mr Collins also outlined the prison officers' duties and their difficulty in monitoring the use of a portable toaster.[9]
• [16] The Tribunal below dealt with the QCS evidence by stating:

"I take into account here the special considerations applying to prisoners and prisons in section 319H of the Corrective Services Act 2006 (Qld), and the need to find a solution which did not interfere with security and was not disproportionate in use of resources, or expense, and was not an excessive operational burden or too disruptive."[10]

• [17] And yet, the Tribunal below referenced none of the evidence referred to above.
• [18] The only implication that can be drawn is that the Tribunal below failed to give proper, genuine and realistic consideration to QCS' evidence and ultimately, the requirements of s 319H of the CSA.

• [19] The Tribunal below then turned to consider the reasonableness of the cleaning regime.
• [20] The Tribunal below acknowledged that the question was not whether the most acceptable way was found, but whether the term was reasonable. It cited with approval the decision of Davies, Beaumont and Sackville JJ in Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission & Anor ("Commonwealth Bank Case").[11] At 112, their Honours stated that:

"The question is not simply whether the alleged discriminator could have made a "better" or more informed decision. The issue is that posed by the legislation, namely, whether the requirement is not reasonable having regard to the circumstances of the case."

• [21] Unfortunately, the Tribunal below took the opposite approach:

"...the fact that a solution was later found which removed the term altogether, and the fact that the cleaning suggestion was not a practical solution for Mr Ali, tend to show that it was not reasonable for the term to be maintained in period 3."[12]

"The fact that this solution was found just as Mr Ali was leaving the unit shows that it would have been a reasonable solution at the beginning of period 3, whereas the cleaning solution did not make the term reasonable at that time."[13]

• [22] In coming to that conclusion, the Tribunal below favoured Mr Ali's evidence that, if he tried to clean the toaster, and prisoners were forced to wait, he would "get my head kicked in".[14]
• [23] However, when cross-examined, Mr Ali revealed that he had never tried to clean the toaster and that his assertions about getting his "head kicked in" were mere speculation.
• [24] There was also evidence to contradict Mr Ali's assertions:

(a) Nicolette Pike gave evidence that there were two large rectangular grillers available for prisoners to use.[15] The grillers could cook eight to ten pieces of toast at a time[16] and Mr Ali told the Tribunal that a piece of toast took about two minutes to cook.[17]

(b) Lisa Porter agreed that there was often a queue for the toaster because, sometimes, certain prisoners would monopolise the toaster. Ms Porter noted that, on those days, prisoners would choose another breakfast option. She does not refer to the potential for violence. [18]

(c) Martin Kennedy stated that, in his observation, Mr Ali was a senior prisoner with status in the unit and, if indicated to other prisoners that he wanted to clean the grill, he would have been permitted to do so.[19]

• [25] I agree with QCS that the Tribunal below was distracted by the 'better solution' implemented later and, therefore, failed to properly consider the QCS evidence and, consequently, whether the solution offered was reasonable in the circumstances.
• [26] The Tribunal below erred in assessing the reasonableness of the cleaning regime against a later available alternative.

• [27] Section 146(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that the Appeal Tribunal may set aside a decision and substitute its own decision where an error of law is demonstrated. I can also remit this matter for rehearing.
• [28] In Brown and Anor v Noosa Constructions Pty Ltd, the Appeal Tribunal said:

"... it is appropriate for the Appeal Tribunal to consider those matters complained of in the appeal, where the facts are clear but insufficient reasons were given, and substitute its own decision and reasons with an appropriate amendment to the learned Member's orders as required."[20]

• [29] I am mindful of the Tribunal's mandate to deal with matters in a way that minimises costs to parties and is as quick as is consistent with achieving justice.
• [30] The question is not whether a better solution was ultimately found by QSC, it is whether the term was reasonable in the circumstances. The circumstances include the relevant provisions of the CSA.
• [31] I accept the unchallenged evidence of Mr Collins that the provision of a separate toaster which would be locked in an officer's station would interfere with the security and good order of the facility and impose an unreasonable cost and administrative burden.
• [32] The term of cleaning the grill may not have been to Mr Ali's liking, but his concerns do not mean that the term was not reasonable in the circumstances.
• [33] The QCS did not indirectly discriminate against Mr Ali by imposing the term that if a prisoner in the secure protection unit wished to use the grill at breakfast time it would have to be the grill shared by other prisoners.[21]

1. Appeal allowed.
2. Decision of the Tribunal below set aside.
3. Application of Raymond Ali is dismissed.

[1] Ali v State of Queensland [2023] QCAT 109.

[2] Williams v Minister for the Environment and Heritage [2003] FCA 535 [29]; Khan v Minister for Immigration and Citizenship [2011] FCAFC 21 [75].

[3] Anderson v Director General of the Department of Environmental and Climate Change & Anor [2008] NSWCA 337 [58].

[4] [2023] QCAT 109 [9]-[13].

[5] [2023] QCAT 109 [35].

[6] Affidavit of Scott Andrew Collins affirmed 26 November 2021 [34].

[7] Affidavit of Paul Broanda affirmed 25 November 2021 [33].

[8] Transcript of proceedings dated 29 February 2023 at T2-16, 1-13; T2-19, 19-30.

[9] Transcript of proceedings dated 29 February 2023 at T2-17; 8-23.

[10] [2023] QCAT 109 [39].

[11] [1997] FCA 1311; (1997) 80 FCR 78.

[12] [2023] QCAT 109 [39].

[13] [2023] QCAT 109 [40].

[14] Transcript of proceedings dated 27 February 2023 at T1-30-T1-31.

[15] Affidavit of Nicolette Gaye Pike affirmed 22 November 2021 [16].

[17] Transcript of proceedings dated 27 February 2023 at T1-31, 23-24.

[18] Affidavit of Lisa Maree Porter affirmed 25 November 2021 [16].

[19] Affidavit of Martin Kennedy affirmed 7 December 2021 [23].

[20] [2012] QCATA 194 [27].

[21] [2023] QCAT 109.