State of Queensland v Mahommed

[1] LYONS J: This is an appeal under s 217 of the Anti-Discrimination Act 1991 ("the Act") against the decision of the President of the Anti-Discrimination Tribunal delivered on 24 May 2006. The Tribunal made two findings of discrimination, one of direct and one of indirect discrimination, against the appellant and ordered that the appellant pay an amount of $2,000 by way of compensation to the respondent. In particular the Tribunal found that:

(a) The State of Queensland directly discriminated against the complainant (the respondent in this appeal) Sharif Mahommed during the last month of his incarceration at Wolston Correctional Centre and during the period between January and November 2003 whilst he was incarcerated at Palen Creek Correctional Centre;

(b) The State of Queensland indirectly discriminated against the complainant (the respondent in this appeal) during the first three months of his incarceration at Palen Creek Correctional Centre.

[2] The appellant seeks orders that the decision and orders made by the Anti-Discrimination Tribunal on 24 May 2006 be:

(i) quashed;

(ii) the matter be remitted to the Tribunal for hearing; and

(iii) the complainant pay the respondent's costs of and incidental to the appeal.

[3] The respondent was imprisoned at the Wolston Correctional Centre from March 2000 to 26 September 2002 and then at the Palen Creek Correctional Centre until his release on 19 April 2005.

[4] The respondent is a Muslim and therefore eats only Halal meat. Fresh Halal meat was not provided to the respondent until November 2003. Halal meat is meat which has been blessed and slaughtered by Muslim slaughtermen and prepared, cooked and stored in accordance with religious law. The evidence at the hearing before the Tribunal was that the respondent was the first Queensland prisoner to request Halal meat in jail. All Muslim prisoners in Queensland jails who request Halal meat are now provided with fresh Halal meat. This is due, to a large extent, to the efforts made by the respondent to obtain fresh Halal meat whilst he was in prison.

[5] There was clear evidence that the respondent made Corrective Services aware of the fact that he only ate Halal meat on his arrival at the Wolston Correction Centre in March 2000. No arrangements were made for him in this regard and during the first ten months he was simply provided with the general prison diet. The respondent did not complain about this until 29 November 2000 when he requested Halal meat and indicated he had not had meat for the entire time he had been in the Centre. That request was declined. It was subsequently determined however that the respondent would be provided with a special diet including cheese, eggs, fish, baked beans, nuts and dried fruit.

[6] The respondent continued his efforts to obtain the Halal meat and from January 2002 tinned Halal meat was provided to him. The tinned meat was both fatty and salty and he was unable to eat it with any regularity. The respondent did not eat the tinned meat from June 2002. On his transfer to Palen Creek the respondent was provided with the normal food provided to the other prisoners. In January 2003, some three months after his arrival, he requested Halal meat and was provided with food supplements such as eggs, cheese and nuts. Eventually in November 2003 the respondent obtained fresh Halal meat which he cooked in his unit for the rest of his time at the Palen Creek Correctional Centre.

[7] On 22 August 2003 the appellant lodged a complaint with the Anti-Discrimination Commission of Queensland in relation to all of this treatment whilst in prison however under s 138 of the Act, a person is only entitled to make a complaint within one year of an alleged contravention of the Act, unless the Commissioner exercises a discretion to accept an older complaint. By a letter dated 19 February 2004, the Commissioner informed the respondent that the complaint related only to conduct occurring from 22 August 2002 which was the year preceding the making of the complaint.

[8] The essence of the complaint before the Tribunal was that the respondent was discriminated against by the State of Queensland as the Department of Corrective Services had not provided him with fresh Halal meat from 22 August 2002 until November 2003 and that from August 2002 to January 2003 he was not provided with any suitable alternatives to Halal meat.

[9] The respondent, who appeared in person at the hearing of the complaint before the Tribunal, did not appear at the hearing of the present appeal. In accordance with the usual practice there was no representation on behalf of the Anti-Discrimination Tribunal.

[10] After the complaint was accepted by the Anti-Discrimination Commission the matter proceeded to a hearing before the Anti-Discrimination Tribunal on an exchange of statements. There were no pleadings and accordingly there was no precise characterisation of the complaint as either direct discrimination or indirect discrimination at any stage prior to the hearing.

[11] The Queensland Act makes a distinction between direct and indirect discrimination as follows:

"9 Discrimination of certain types prohibited

The Act prohibits the following types of discrimination--

(a) direct discrimination;

(b) indirect discrimination.

10 Meaning of direct discrimination

(1) Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

(1) Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term--

(a) with which a person with an attribute does not or is not able to comply; and

(b) with which a higher proportion of people without the attribute comply or are able to comply; and

(c) that is not reasonable."

[12] After a hearing lasting some five days the President of the Tribunal found that in relation to the last month at the Wolston Correctional Centre and from January until November 2003 at the Palen Creek Correctional Centre the respondent was directly discriminated against in breach of s 10 of the Act. The President found that the respondent was provided with a different diet to the general run of prisoners on the basis of his religious beliefs or activities as follows:[1]

"21 ... [the respondent] was provided with a different diet to the general run of prisoners on the basis of his religious beliefs or activity. At some stage I perceived that the respondent was arguing that the hypothetical person "without the attribute" with whom [the respondent] ought to be compared under s 10 was a hypothetical vegetarian. Thus it seemed to be argued, that all those people who would not eat meat were treated in the same way - offered a vegetarian diet. I do not think that this is a correct comparison. The evidence discloses that there was a large range of special diet meals. Rice and noodles were provided to Asian prisoners; special diets were provided to prisoners with diabetes; gluten free diets, low fat diets, low cholesterol diets were all provided to different prisoners. There is no sense in comparing what [the respondent] was provided with that provided to say, a diabetic prisoner. In just the same way, it is not a proper comparison to compare the meals provided to [the respondent] with that provided to a vegetarian. [The respondent] was not a vegetarian. His normal diet included meat. It is notorious that meat represents a significant part of a normal Australia diet. The hypothetical person with whom [the respondent] ought to be compared under s 10(1) of the Act is a prisoner on the prison's standard diet.

22. I find that during the last month at Wolston, and the period between January and November 2003 at Palen Creek, the provision of a vegetarian diet, together with supplements and tinned Halal meat to [the respondent] was less favourable treatment within the meaning of s 10 of the Act for two reasons."

[13] The President went on to set out that the two reasons why there was less favourable treatment such as to constitute direct discrimination were essentially that the substitute diet was unacceptable to the respondent and secondly that the special diet meals provided were unreliable both in terms of contents and whether they arrived.[2] These reasons can be summarised as follows;

(a) The substitute diet was unacceptable to the respondent as a significant part of the vegetarian diet consisted of specific products made for vegetarians which the respondent found unpalatable. Furthermore much of the vegetarian diet provided to the respondent was "just salad" and the portions were "too small". The President further stated:[3]

"29. The respondent led evidence that the diet provided to [the respondent] was nutritionally adequate and edible. I accept this. The respondent also made the submission that the standard of fare provided should be seen in the context that the complainant was in prison, and not at a restaurant, hotel or in a supermarket. I accept the force of this, although I note a prisoner does not lose his or her civil rights on imprisonment unless they are taken away expressly or by necessary implication. Lastly, it was said that not all prisoners were provided with fresh meat every day. It is clear from the menus in evidence that this is also true, in the sense that sometimes pressed meat such as luncheon meat was provided. At other times hot dogs or other types of processed meat were provided to the prisoners.

30. No doubt every prisoner from time to time found a meal provided unpalatable to the point where he simply did not care to eat it, and no doubt that is part and parcel of being in a prison which caters for 600 prisoner meals every day. [The respondent]'s situation was however worse than the general run of prisoners in that he was not a vegetarian and did not choose to eat vegetarian food. He actively disliked some of it, such as the nutmeat and the sausages. There was evidence that nutmeat was served with regularity. [The respondent] could not identify some of the food he was served. He was served more salad and tinned meat than was provided on the general menu and found this unacceptable. In addition to all that, he was not ever served fresh meat.

31. It is not a matter of [the respondent]'s being fussy, or expecting restaurant quality food; no doubt he had to endure his fair share of poor meals, just like every other prisoner. The point is that he received substantially more than his fair share of unacceptable meals because he was put on a vegetarian diet when he was not vegetarian, and was not, until November 2003, ever served fresh meat."

(b) The President found that the special diet meals that would have been provided to him were unreliable both in their arrival and their contents and accepted evidence that he never got the supplements agreed to whilst he was at the Wolston Correctional Centre. The President accepted that frequently the meals did not arrive or that they frequently contained meat or items which he could not identify. The President accepted that the respondent's difficulty with food over the entire time of his incarceration at Wolston was such as to cause him to lose a substantial amount of weight.

[14] In addition to a finding of direct discrimination as outlined above the President also found that the first three months at Palen Creek constituted indirect discrimination because when the respondent arrived at Palen Creek in September 2002 he was simply provided with the same rations as the general prison population until about January 2003. During that time the President found that the respondent imposed a term upon the respondent that he eat the general diet provided to prisoners and the respondent was not able to comply with such a term within the meaning of s 11(1)(a) of the Act. The President found that a higher proportion of Muslims would not have been able to comply with that term than people in the general population so that the requirement of s 11(1)(b) was satisfied.

[15] In relation to whether or not the imposition of that term was reasonable in accordance with s 11(1)(c) of the Act the President found that the imposition of the term that the respondent eat general prison fare during the first three months of his incarceration at Palen Creek was not reasonable and that during that time there was therefore indirect discrimination within the meaning of s 11 of the Act. In this regard in particular the President found that the Department knew that the respondent was a Muslim and would only eat Halal meat. The President also found that the respondent had been requesting fresh Halal meat and making complaints about his diet for a period of about two years.

[16] The President also found that other medical and cultural conditions were catered for by the Department in provision of diets to prisoners and that there was a list of special diets as at February 2002 which included vegetarian, Asian, Diabetic etc so the obtaining of Halal meat was only slightly more costly to the Department and was generally "readily obtainable". The President found in particular that the respondent had failed to prove that fresh Halal meat was not available between 26 October 2002 and January 2003 and that the respondent had failed to satisfy the onus of proof in relation to reasonableness. The President also found that a relevant fact was the period of time that the respondent was to be in jail and that it was some two and a half years before he was able to be provided with fresh meat.

[17] Section 217 of the Act provides that a party may appeal against a decision of the Tribunal to the Supreme Court on a question of law. The appellant raised a number of issues of law as grounds for the appeal;

(a) The President made a mistake of law in that she found that the respondent had directly discriminated against the complainant on a basis, namely the provision of a different diet to the "general run of Prisoners" on the basis of his religious beliefs or activity, which was not:

(i) articulated by the Complainant;

(ii) argued by the Complainant;

(iii) the subject of an intimation by the Tribunal that it might make such a finding at a time when the Respondent could have responded.

(b) The President made a mistake of law in that she found that the Respondent had directly discriminated against the Complainant when on the Tribunal's findings of facts s 10 of the Anti-Discrimination Act 1991 ("the Act") does not apply in that the Respondent did not treat the Complainant differently to other prisoners;

(c) The President made a mistake of law in that she found that the Respondent had directly discriminated against the Complainant when on the Tribunal's findings of fact there was no less favourable treatment as required by s 10 of the Act;

(d) The President made a mistake of law in that she found that the Complainant was treated less favourably within the meaning of s 10 of the Act when on the Tribunal's findings of fact the Complainant was provided with additional food, namely supplements and tinned Halal meat, that was not provided to the "general run of prisoners" and that the diet provided to the Complainant was nutritionally adequate and edible;

(e) The President made a mistake of law in that she found that the Respondent imposed, for the purposes of s 11 of the , a term that the Complainant eat the general diet provided to prisoners at Palen Creek Correctional Centre during the first three months of the Complainant's incarceration at Palen Creek Correctional Centre when there was no evidence to support a finding that the said term was imposed;

(i) the Tribunal found that the Complainant first saw the Food Supervisor about three months after he arrived at Palen Creek;

(ii) there was no evidence of the Complainant making a complaint to the Respondent about the meals provided at Palen Creek Correctional Centre until three months after he arrived at Palen Creek Correctional Centre;

(iii) tinned Halal meat was available to the Complainant;

(iv) the Complainant told the Tribunal that he "didn't worry about it" when asked about the provision of supplements during the first three months at Palen Creek Correctional Centre;

(v) the Complainant was able to prepare meals for himself during that period;

(vi) the Complainant stated when asked in cross-examination about the first three months at Palen Creek that he did not "have a problem with Palen Creek. Palen Creek were very good to me";

(vii) the Complainant was in prison and in light of the food that he could consume consistently with his faith that was available to him it was reasonable for fresh Halal meat to not be provided for one prisoner.

[18] As previously indicated section 217 of the Act creates a right of appeal to the Supreme Court against a Tribunal decision on a question of law only and not in relation to questions of fact. As Pincus JA stated in the decision of JM v QFG and KG [1998] QCA 228 JM p20 of the decision it is not easy to state succinctly in what circumstances what is said to be a factual error creates a right of appeal on a question of law. Ultimately however his Honour held (at p21)

"It appears to me that a factual conclusion cannot be treated as infected by legal error unless it is supported by no evidence whatever or unless it is clear, beyond serious argument, that it is wrong. That this Court merely disagrees with a factual view of a tribunal does not show that a decision based on it is legally erroneous."

[19] The essence of the appellant's submission in this regard is that it was a breach of the rules of procedural fairness for a decision to be given on a matter which was not in issue in the hearing and for which an opportunity was not given to make submissions or to call evidence.

[20] The appellant relied on the decisions in Kioa v West[4] and Fletcher v Commissioner of Taxation[5] and stated that the requirements of procedural fairness had not been satisfied in this particular case. The appellant submitted that points of claim had been sought by the appellant at interlocutory proceedings in order to clarify the nature of the complaint before the Tribunal but this had been refused. Counsel's request for an opening at the commencement of the hearing had also been refused. Consequently the appellant submits that there was no clear articulation by the complainant as to whether it was a case of direct or indirect discrimination.

[21] Furthermore the appellant submits, the hearing then proceeded on the basis that it was a case of indirect discrimination and not direct discrimination. Counsel submitted that the way in which the hearing had been conducted and in particular an exchange between the President and counsel for the appellant led the appellant to believe that the complainant's case was that direct discrimination arose only in so far as there had been deliberate acts or omissions in relation to the provision of food to the respondent and that the case was one of indirect discrimination in so far as there had been general provision of food that did not contain fresh Halal meat.

[22] Counsel submitted that in subsequently determining that the appellant had directly discriminated against the respondent by the non-provision of fresh Halal meat, the Tribunal made a finding on a point that had not been pleaded by the respondent, had not be argued and had not be the subject of any intimation by the Tribunal that it would make such a finding. Counsel submitted because of the way in which the hearing was conducted he did not have an opportunity to address in relation to this aspect of direct discrimination as he believed that it was not being considered by the Tribunal.

[23] Counsel for the appellant submitted that this was procedurally unfair and that the procedural unfairness was even more manifest in light of the prior failure on the part of the complainant (the respondent in this appeal) to articulate his case or be required to do so by the Tribunal despite several requests being made by the appellant.

[24] A fair hearing is of course the essence of procedural fairness. Courts however have consistently stated that what is fair in the circumstances depends on the circumstances of the case. The real question in this case therefore is what is required in the circumstances of this particular case. As Brennan J stated in Kioa v West:[6]

"The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power. The variable content of the principles of natural justice was articulated by Tucker LJ in an oft-cited passage in his judgment in Russell v Duke of Norfolk:[7]

"The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case."."

[25] In particular Brennan J referred to the decision in Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group[8] and the judgments of Tucker LJ and Kitto:[9]

"It is plain that when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the field of the inquiry are of importance. The nature of the jurisdiction exercised and the statutory provisions governing its exercise are amongst those circumstances."

[26] It is very clear from the decision in Kioa v West[10] and Fletcher v Commissioner of Taxation[11] that there is an "irreducible minimum" required by the principles of natural justice which is that the person concerned should have a reasonable opportunity of presenting his case. The issue in this particular case is therefore whether the appellant did have a reasonable opportunity of presenting his case.

[27] The starting point of course is a consideration of the Act. The way in which the Tribunal is to conduct hearings is set out in s 208 of the Act:

"208 Evaluation of evidence

(1) The tribunal is not bound by the rules of evidence and--

(a) must have regard to the reasons for the enactment of this Act as stated in the preamble; and

(b) may inform itself on any matter as it considers appropriate; and

(c) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms; and

(d) must conduct itself in a way that will enable costs or delay to be reduced and will help to achieve a prompt hearing of the matters at issue between the parties; and

(e) may give directions relating to procedure that, in its opinion, will enable costs or delay to be reduced and will help to achieve a prompt hearing of the matters at issue between the parties; and

(f) may draw conclusions of fact from any proceeding before a court or tribunal; and

(g) may adopt any findings or decisions of a court or tribunal that may be relevant to the hearing; and

(h) may receive in evidence a report of the commissioner, but only if the commissioner has provided a copy to each party to the hearing; and

(i) may permit any person with an interest in the proceeding to give evidence; and

(j) may hold a hearing in the absence of a party who was given reasonable notice to attend, but failed to do so without providing a good reason; and

(k) may permit the commissioner to give evidence on any issue arising in the course of a proceeding that relates to the administration of the Act.

(2) Nothing said or done in the course of conciliation can be admitted as evidence in a hearing before the tribunal."

[28] Importantly this section clearly sets out that the Tribunal must act without regard to technicalities and legal forms and that it can give directions relating to procedure that will enable costs or delays to be reduced and will help to achieve a prompt hearing of the matters at issue between the parties. The nature of the Queensland Anti- Discrimination Tribunal was explained by Wilson J in the decision of Hehir and Financial Advisors Pty Ltd v Sandra Smith in the following terms:[12]

"The Tribunal is not a court, and clearly the Legislature did not intend that proceedings before it should be redolent with all the procedures and formalities of court proceedings. Its over-riding duty is to accord procedural fairness to the parties; what is required in that regard will vary according to the circumstances."

[29] Furthermore in the decision of Martin & Anor v Electricity Transmission Corporation[13] White J agreed with the comments of Wilson J and stated

"It is, however, necessary that the issues between the parties be clearly delineated to ensure that there are no misconceptions and to assist the Tribunal to understand the nature and extent of the complaint and what is sought by way of compensation and why."

[30] Having considered the nature of the Tribunal, as well as a transcript of the proceedings I am not satisfied that the appellant has established that in the circumstances of this particular case that there has been a failure to provide procedural unfairness. It is clear from a perusal of the transcript of proceedings that the appellant was aware of all of the facts of the case, was aware of the critical issues and the question was always whether there had been discrimination on the part of the Department of Corrective Services. What was uncertain was whether the actions could be characterised as direct or indirect discrimination. It would seem that the complaint in fact had been accepted by the Anti-Discrimination Commission as a complaint of direct discrimination.

[31] The transcripts indicate that from a very early stage there was quite a deal of discussion as to whether it was direct or indirect discrimination and it was clear that there was difficulty on the part of the respondent as to how he would characterise the behaviour of the Department.[14] The President made it clear what the approach of the Tribunal was:[15]

"...the complaint that's referred up here I think is factually clear and we'll make sure that [the respondent]'s evidence is factually clear and where that goes is a matter of law, but I am not going to try and impose on him some term to suddenly become an anti-discrimination lawyer."

[32] From a reading of the transcript my view is that it was not that counsel for the appellant did not have an opportunity to address on this aspect of direct discrimination but rather that the appellant took a particular view at a very early stage that it was, on his view of the facts, a case of indirect discrimination and not direct. In fact counsel for the appellant clearly indicated that that was his submission.[16] Counsel for the appellant had in fact submitted written submissions along these lines even before the exchange with the President.[17] It would appear that the President at that point saw some merit in that view. This however did not indicate that the President had a concluded view on the subject and in fact the President indicated in clear terms her concerns that the respondent was not given meat with the clear inference being he was treated in a way which was "differential" which meant that direct discrimination was an issue.

[33] The appellant had a full opportunity to make both oral and written submissions and indeed did so. The transcript also indicates that these submissions in fact included some submissions in relation to direct discrimination.[18] The respondent in his final submissions to the Tribunal referred to direct discrimination.[19]

[34] Whilst the Tribunal is clearly required to comply with the requirements of procedural fairness it is important to remember that the Anti-Discrimination Tribunal is a Tribunal which has been set up in a way whereby it is intended to operate differently from a court. Section 208 clearly is the basis for the way in which the Tribunal is to operate and as s 208(1)(b) indicates, the Tribunal may inform itself on any matter it considers appropriate which means that the Tribunal is an inquisitorial Tribunal and not a strictly adversarial Tribunal. The authors Bedford and Creyke in an analysis of Australian Tribunals indicated that:[20]

"...courts accustomed to adversarial process may fail, when reviewing their decisions, to appreciate and make due allowance for a different procedural regime imposed on tribunals. In other words, the courts may impose standards in relation to matters of fact finding, evidence testing, and the level of natural justice which are inappropriate for Tribunals required to operate at the inquisitorial end of the procedural spectrum."

[35] The authors further state that the adoption of adversarial court like process is not the norm in tribunals and that:[21]

"Generally the process is more informal as the nature of many of the claims raised before tribunals require. The reasons for adopting this more flexible approach were described by Justice Morris, President of VCAT:

"First, the method of bringing cases before the tribunal is relatively simple; complex proceedings are unnecessary. Second, the tribunal engages a substantial registry staff to assist parties and to perform work which would ordinarily be done by solicitors in courts of law. Third, hearings are conducted in an ordered manner, but with as little formality and technicality as is practicable. Fourth, the tribunal is empowered to inform itself on any matter as it sees fit and this power is used to promote the fair conduct of a case as well as to achieve a just outcome according to law. For example, tribunal members often ask questions or raise issues in order to overcome an inability of a party to articulate its true case."."

[36] Furthermore, s 208(1)(c) requires that the Tribunal must act "according to equity, good conscience and substantial merits of the case without regard to technicalities and legal forms". The meaning of this phrase was discussed in the decision of Minister for Immigration and Multicultural Affairs v Eshetu.[22] In that decision Gleeson CJ and McHugh J noted of the equivalent requirements in s 420 of the Migration Act 1958 (C/W):[23]

"They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question."

[37] In relation to the appellant's request for particulars or for an opening it has been recognised in the case of the Minister for Health v Thomson[24] that if the issues were already sufficiently few then particulars were not required. I consider that this was indeed a case where the issue were sufficiently few and that an opening and particulars were neither appropriate nor required particularly in light of the requirements of s 208.

[38] In all of the circumstances therefore I am not satisfied that there has been a breach of the rules of procedural fairness. Indeed having regard to the way the hearing was conducted as a whole it is manifestly clear that the President went to great lengths to allow the appellant every opportunity to present his case which included adjournments to obtain instructions[25] as well as a further lengthy adjournment to allow the appellant to consider further material.[26]

Ground (b) No Differential Treatment for the purposes of s 10 of the Act

[39] On 22 August 2002 the respondent lodged a complaint with the Anti-Discrimination Commission of Queensland. It is clear that the complaint relating to the non provision of Halal meat was accepted by the Anti-Discrimination Commission as a complaint of alleged direct discrimination on the basis of religious belief or religious activity in the areas of the provision of goods and services and the administration of State laws and programs.

[40] As previously indicated the meaning of direct discrimination is set out in s 10 of the Act and states that direct discrimination on the basis of an attribute happens if a person treats or proposes to treat a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

[41] The President's decision states 'Mr Mahommed's uncontradicted evidence is that he made Wolston aware of the fact that he ate only Halal meat on his arrival in March 2000'.[27]

[42] Direct discrimination involves differential treatment. The statement of principle was set out by Dawson and Toohey JJ in Waters v Public Transport Corporation:[28]

"A distinction is often drawn between two forms of discrimination, namely "direct" or "disparate treatment" discrimination and "indirect" or "adverse impact" discrimination. Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such "equal" treatment is that the former is in fact treated less favourably than the latter."

[43] Whether there is differential treatment therefore must be analysed in terms of how a person of another religion would be treated in circumstances that are the same or not materially different. This requires the circumstances attending the treatment given to the respondent to be identified and what must then be examined is what would have been done in those circumstances if the person concerned was of another religion. If the treatment is not materially different there will be no direct discrimination. If the treatment is however found to be materially different the next question that needs to be satisfied is whether that treatment is less favourable.

[44] The appellant submits that the respondent's treatment at Wolston and after January 2003 at Palen Creek did not amount to direct discrimination because there was no treatment that on its face was differential. The appellant submits that the respondent was treated the same as other prisoners. That is, persons who could not eat the meat provided were provided with a special diet. The appellant submits that the President made a mistake of law in that she found the respondent had directly discriminated against the complainant.

[45] The President outlined her reasons for finding direct discrimination as follows:[29]

"... when [the respondent] was simply provided with general fare, the matter is to be analysed in terms of the definition of indirect discrimination. However, after [the respondent] complained he was no longer treated in a facially neutral way. He was treated differently to the general run of prisoners and treated differently because of his religious beliefs or religious activity. In my view the correct approach is to analyse what went on during these periods of time in terms of the definition of direct discrimination. Had [the respondent] been put on a vegetarian diet, with or without tinned meat, from his first day in gaol, because of his religious beliefs or activity, his case would have been analysed in terms of the definition of direct discrimination - that is, differential treatment on the basis of religious beliefs or activity. It is incorrect in my view to analyse what went on in the periods of time after [the respondent] complained differently because he was treated initially at both institutions in a way which falls to be analysed in terms of the definition of indirect discrimination."

[46] It is patently clear that the basis of the complaint of discrimination in this case is that the respondent was not provided with fresh meat until November 2003. All other prisoners who wished to have fresh meat were provided with fresh meat regularly during the period of their incarceration. When the respondent advised the department at the beginning of his incarceration that he was unable to eat meat other than Halal meat, he was not provided with fresh meat. Significantly, the President found that when the respondent complained about this and requested fresh meat, which was then not provided, this was differential treatment on the basis of religious belief or activity.

[47] A finding of direct discrimination on the basis of religious belief or religious activity requires a causal nexus that shows that a complainant is treated in a particular way because of his religion. On the facts set out in the material provided on the appeal I am satisfied that there was sufficient evidence for the President to make a finding of differential treatment and to be satisfied that this was direct discrimination for the purposes of the Act. I can find no error of law in this regard.

Ground (c) and (d) No less favourable treatment

[48] As well as finding that the respondent had been treated differentially the President further found that there had been less favourable treatment accorded to the respondent. The appellant submits that the President made a mistake of law in that she found there was less favourable treatment.

[49] The appellant submits that the Tribunal's findings of fact establish that the complainant was provided with additional food, namely supplements and tinned Halal meat. Furthermore they submit that because this additional food was not provided to the general run of prisoners and as the diet was nutritionally adequate and edible, this could not have been less favourable treatment.

[50] In relation to findings of less favourable treatment the President relied in particular on the fact that the respondent received more than his share of unacceptable meals or that the meals were unreliable.

[51] I can find no mistake of law in this regard. The respondent ate meat and his normal diet included meat. The President held that it is notorious that meat represents a significant part of a normal Australian diet and that the normal prisoner on a prisoner's standard diet would get fresh meat. The President found that the respondent did not get fresh meat until November 2003. The respondent got tinned Halal meat and a vegetarian diet and supplements. This treatment was ample evidence of less favourable treatment within the meaning of s 10 of the Act. The President went on to explain that this diet that was supplied to him which did not contain meat and which contained vegetarian products, supplements etc. was not palatable to him and the portions were notoriously small. As the President found:[30]

"[The respondent]'s situation was however worse than the general run of prisoners in that he was not a vegetarian and did not choose to eat vegetarian food. He actively disliked some of it, such as the nut meat and the sausages. There was evidence that nut meat was served with regularity. [The respondent] can not identify some of the food he was served. He was served more salad and tinned meat than was provided on the general menu and found this unacceptable. In additional to all that he was not ever served fresh meat."

[52] The appellant also submits that there was no unreliability in relation to the provision of food at Palen Creek and accordingly the President made an error of law in this regard. In the context of the findings made by the President it would appear that the comments in relation to unreliability only applied to Wolston Park. I do not consider however that there was a necessity for both unreliability and unacceptability of meals to be set out in relation to both places of incarceration for there to be a finding of less favourable treatment. There was clearly sufficient evidence for the President to make a finding of less favourable treatment. There was clearly detriment to the respondent as he did not receive fresh meat until November 2003. I can find no error of law in this regard.

Ground (e) Misstatement of the term for the purposes of s 11 of the Act

[53] Indirect discrimination is dealt with in s 11 of the Act and in order for indirect discrimination to be made out the following three criteria must apply:

(b) The term must be one with which the complainant does not comply and high proportion of persons without the complaint's attribute comply or are able to comply with the term;

[54] The appellant submits that there was no evidence to support a finding that the term found to exist by the President, namely that the respondent eat the general diet provided to all prisoners, was imposed. The appellant submits there was no evidence of a requirement that the respondent eat the general diet provided to prisoners at Palen Creek Correctional Centre during the first three months of his incarceration at that Centre.

[55] The appellant contended that there was no evidence that the respondent could not have had available at Palen Creek the same range of supplements that were provided to him after the first three months at that Centre. The appellant stated that it was clear the respondent did not seek the supplements rather than not being provided with them.

[56] In the decision of Hurst and Devlin v Education Queensland[31] Lander J discussed s (6) of the Disability Discrimination Act1992 (Cth) which provided that in order to make out a claim of indirect discrimination under that Act the aggrieved person must establish that the discriminator "requires the aggrieved person to comply with a requirement or condition" and stated that the words 'requirement or condition" are to be construed broadly and beneficially and that the requirement or condition need not be explicit but may be implicit.[32] In that case it was held that the requirement or condition complained about was the requirement that the complainant in that case "accept an education and receive instruction in English without the assistance of an Auslan teacher or an Auslan interpreter".[33]

[57] The President found that the Department did impose a term upon the respondent which was that the respondent eat the general diet provided to prisoners. I am not satisfied that there has been an error of law by the President in finding that there was such a term imposed. This conclusion of fact could be drawn from the evidence and as this conclusion was clearly open to the Tribunal no error of law has been established.

Ground (f) and (g) the respondent could comply with the term.

[58] The appellant submitted that the respondent could comply with the term because he was apparently content with what he received. The appellant submitted that in these circumstances he did not suffer the requisite "serious disadvantage" that denotes non- compliance and relied on the decision of Hurst v Education Queensland[34] which held that a disabled person's inability to achieve his or her full potential, in educational terms, can amount to serious disadvantage.

[59] The President in her reasons fully explained the basis upon which this finding was made. The President found that during the time at Palen Creek the appellant imposed a term upon the respondent that he eat the general diet provided to prisoners. The respondent was not able to comply with a term within the meaning of s 11(1)(a) of the Act and the President found that a higher proportion of Muslims would not have been able to comply with that term than people in the general population and she was therefore satisfied that the requirements of s 11(1)(b) had been made out. This conclusion was clearly open to the Tribunal as obviously for religious reasons a Muslim cannot eat the non Halal meat and therefore cannot comply with the requirement to eat the diet provided.

[60] Whilst the issue of serious disadvantage was not referred to by the President in her decision or indeed argued in the case, given that the decision in Hurst was handed down several months after the decision of the President, if such a finding is required to satisfy the requirements of the Queensland Act it is a finding which was implicit in the President's decision. An inability to eat fresh meat can amount to a serious disadvantage even if supplements are supplied. In particular it must be remembered that the non provision of fresh meat went on for a period of over two years in a prison environment where such matters weigh heavily on inmates. Accordingly I can find no error of law in this regard.

Ground (h) no evidence to support finding that "fresh Halal meat probably was available during the first three months of the respondent's incarceration at Palen Creek Correctional Centre"

[61] The appellant submitted that there was no evidence available to support a finding that fresh Halal meat was probably available during the first three months at Palen Creek.

[62] Having perused the Appeal Record Book as well as the Referral Report from the Anti-Discrimination Commission I am not satisfied that this is the case. In particular a report from Noel Taylor, the Director of Custodial Operations dated 24 January 2002 contained a statement in relation to the provision of Halal meat where he indicated that it was in fact "readily obtainable religiously suitable food".[35] There are also other references relating to the provision of Halal meat[36] and in particular I note a memorandum from Noel Taylor to the General Manager of all Correctional Centres dated 3 November 2003 advising that in future fresh Halal meat was going to be provided to all Muslim prisoners and in particular in coming to that conclusion he had taken into account "the availability of the products" and came to the conclusion that fresh Halal meat would be supplied in the future. I am therefore satisfied that there was evidence that fresh Halal meat was readily obtainable during the period under review and that there was no error of law by the President in this regard.

[63] For there to be a finding of indirect discrimination there must be a finding, in accordance with the provisions of s 11 of the Act, that the imposition of the term was not reasonable.

[64] In coming to a determination on the issue of reasonableness the President held[37] that she was required to look "at all the circumstances" and that on the basis of the decision in Catholic Education Office v Clarke[38] the test of reasonableness was an objective one which was less than necessity but more demanding than a test of convenience. The President also relied on the decision in JM v QFG and KG[39] which held that she was required to weigh:

"...the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the term on the other and all other circumstances, including those specified in s11(2) ."

[65] The appellant submits that the President made a mistake of law in finding that the term was not reasonable in that on the factual findings open to the Tribunal and on the evidence before the Tribunal the term was in fact reasonable for the purposes of the Act.

[66] The President's reasons disclose that she clearly applied the correct test in relation to reasonableness and the appellant has not submitted that the wrong test was applied. The President then set out her extensive reasons for finding that the imposition of the term that the respondent eat general prison fare during the first three months of his incarceration at Palen Creek was not reasonable and that during that time there was therefore indirect discrimination. Ultimately the President's decision as to whether the term was reasonable was a purely factual finding. In my opinion no question of law arises from the President's conclusion that the term was not reasonable.

[67] In all of the circumstances of this case therefore I am not satisfied that there is a basis for the appeal to be sustained.

[1] Mahommed v State of Queensland [2006] QADT 21 at [21] - [22].

[2] [2006] QADT 21 at [23] - [40].

[3] [2006] QADT 21 at [29] - [31].

[4] [1985] HCA 81; (1985) 159 CLR 550.

[5] (1988) 19 FCR 442.

[6] [1985] HCA 81; (1985) 159 CLR 550 at 612.

[7] [1949] 1 All E.R 109 at 118.

[10] [1985] HCA 81; (1985) 159 CLR 550.

[11] (1988) 19 FCR 442.

[12] [2002] QSC 92 at [14].

[13] [2003] QSC 309 at [41].

[14] Transcript at p321 of Appeal Record Book Volume 2 at lines 20-34.

[15] Transcript at p321 of Appeal Record Book Volume 2 at lines 29-34.

[16] Transcript at p477 of Appeal Record Book Volume 3 at line 28.

[17] Transcript at 475 of Appeal Record Book Volume 3.

[18] Transcript at p488 of Appeal Record Book Volume 3.

[19] Transcript at p500 of Appeal Record Book Volume 3.

[20] Narelle Bedford and Robin Creyke: Inquisitorial Processes in Australian Tribunals 2006, AIJA publication, p 27.

[21] Narelle Bedford and Robin Creyke: Inquisitorial Processes in Australian Tribunals 2006, AIJA publication, p 55.

[22] [1999] HCA 21; (1999) 197 CLR 611.

[23] [1999] HCA 21; (1999) 197 CLR 611 at [49].

[24] 1985 FCR 213.

[25] Transcript at p397 of Appeal Record Book Volume 2.

[26] Transcript at p403 of Appeal Record Book Volume 2.

[27] [2006] QADT 21 at [3].

[28] [1991] HCA 49; (1992) 173 CLR 349 at 392.

[29] [2006] QADT 21 at [20].

[30] [2006] QADT 21 at [30].

[31] [2005] FCA 405.

[32] [2005] FCA 405 at [67] - [69].

[33] [2005] FCA 405 at [85].

[35] Appeal Record Book Volume 1 at p 132.

[36] Appeal Record Book Volume 1 at p 218.

[37] [2006] QADT 21 at [47].

[38] [2004] FCA FC 197 [115].

[39] [1998] QCA 228.