Anti-Discrimination Act 1991 (Qld), ss 129-130

Queensland Civil and Administrative Tribunal Act 2009, s29

Mr A.A.J. Horneman-Wren, SC, instructed by Crown Law, for the First and Second Respondents

1. Mr Bradley Vidler ("Mr Vidler") alleges that he was victimised by both the First Respondent, the State of Queensland and the Second Respondent, Mr Peter Williams ("Mr Williams"), in contravention of s129 of the Anti-Discrimination Act 1991 (Qld)("the Act").

1. The complaint by Mr Vidler arises out of a refusal by the Respondents to accept Mr Vidler's application for a Unit Kitchen Worker's position at the Woodford Correctional Centre ("Woodford"), where Mr Vidler resides. Mr Vidler's application was refused by Mr Williams, a Correctional Services Officer, in or about September of 2006.

2. The factors that led to the making of the complaint relate back to a 2005 arm injury that Mr Vidler sustained while working as a Unit Kitchen Worker at Woodford. As a consequence of his arm injury, Mr Vidler lost his employment as a Unit Kitchen Worker, and subsequently made a complaint[1] alleging discrimination by the First Respondent on the basis of impairment in the work area.

3. The impairment complaint was settled by entry between Mr Vidler and the First Respondent into a "Deed of Settlement" ("the Deed") in May 2006. The following term of the Deed[2] is relevant to the victimisation proceedings now before QCAT:

"To consider making the Complainant an offer to work as a Kitchen Worker, if a position becomes available in the unit in which the Complaint is accommodated."

1. Approximately 4-months after entry into the Deed, Mr Vidler made application for a position as a Kitchen Worker in the accommodation unit N4, in Secure Block 1 at Woodford Correctional Centre. Mr Vidler's application for this position was refused by the Second Respondent, Mr Williams.

2. In October 2006, Mr Vidler made a complaint of victimisation, arising out of the refusal to accept his application for a Kitchen Worker's position, to the Anti-Discrimination Commission Queensland. This complaint was accepted by the Commission, and ultimately referred to the Anti-Discrimination Tribunal Queensland on 26 February 2008.

3. On 1 December 2010, the Anti-Discrimination Tribunal Queensland was amalgamated into the Queensland Civil and Administrative Tribunal ("QCAT").

4. The QCAT proceedings have progressed on the basis that Mr Vidler's victimisation complaint encompasses the following matters[3]:

• The refusal of the Unit Kitchen Worker's position in or about September 2006;

• Mr Vidler's being issued with a "major breach" of prison discipline by Correctional Supervisor Deirdre Gomm ("Ms Gomm") on 1 February 2007, in relation to an alleged refusal by Mr Vidler to present himself for transportation for a medical appointment at the Princess Alexandra Hospital;

• The upholding of the breach of discipline found by Ms Gomm by Block Manager Desmond Voss ("Mr Voss"), and the imposition of a sanction of 7-days separate confinement;

• The transfer of Mr Vidler from Secure Block 1 to Secure Block 2 at the conclusion of his 7-day period of separate confinement;

• The failure of the First Respondent to act upon Mr Vidler's statements that he was at risk in Secure Block 2, to transfer him to a different unit within Secure Block 2 and to provide him with access to the services of a psychologist, the failure of which resulted in Mr Vidler's being assaulted while in Secure Block 2 during September of 2007.

1. Section 129 of the Act prohibits victimisation, as that term is defined by s130 of the Act:

(1) Victimisation happens if a person (the respondent) does an act, or threatens to do an act, to the detriment of another person (the complainant)--

(a) because the complainant, or a person associated with, or related to, the complainant--

(i) refused to do an act that would amount to a contravention of the Act; or

(ii) in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or

(iii) is, has been, or intends to be, involved in a proceeding under the Act against any person; or

(b) because the respondent believes that the complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do one of the things mentioned in paragraph (a)(i), (ii) or (iii).

(2) In this section, a reference to involvement in a proceeding under the Act includes--

(a) making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and

1. Thus, in order to establish a case of victimisation, Mr Vidler needs to establish that the acts he complains of before QCAT were done as a result of the Respondents belief that he had made, was planning to make, or was presently involved in a complaint to the Anti-Discrimination Commission Queensland. As it has been alleged here, Mr Vidler asserts the victimisation was based upon the Respondents' knowledge in relation to his previous impairment discrimination complaint. Self-evidently, this would also require establishing that the persons who engaged in the allegedly victimising conduct had knowledge of Mr Vidler's previous impairment discrimination complaint, or could be shown to have been aware that he was presently involved in, or planning to make a complaint.

Lack of knowledge in relation to previous impairment complaint

1. With respect to the decisions that Mr Vidler complains of, the decision makers responsible were as follows:

• Mr Williams - Decision to refuse Mr Vidler a position as a Unit Kitchen Worker.

• Ms Gomm - Decision to issue Mr Vidler with the "major breach" of discipline on 1 February 2007.

• uphold the breach of discipline found by Ms Gomm; * the imposition of a sanction of 7-days separate confinement; and * the transfer of Mr Vidler from Secure Block 1 to Secure Block 2 (and the events surrounding the assault of Mr Vidler in Secure Block 2) at the conclusion of his 7-day period of separate confinement.

2. To succeed, Mr Vidler must establish that each of these decision makers (Mr Williams, Ms Gomm and Mr Voss) believed that Mr Vidler had, was planning to, or was presently making a discrimination complaint. The evidence before QCAT does not, however, establish that either Mr Williams or Ms Gomm had any such knowledge in relation to his previous impairment discrimination complaint. Without such knowledge or belief, there can be no victimisation, at least not in the manner defined in the Act. With respect to Mr Voss, while he did have such knowledge, there is no basis on the evidence to suggest that Mr Voss's actions were guided by any reasons other than prison security policies.

1. Mr Vidler, in his cross-examination, admitted that he did not draw Mr Williams' attention to the Deed prior to being informed by Mr Williams that he would not be given the kitchen worker's position that he made application for. The exchange, which is pivotal to my conclusion that Mr Williams could not have unlawfully victimised Mr Vidler, on the basis that he lacked knowledge in relation to the Deed, is as follows:

Mr Horneman-Wren (Counsel for the Respondents): And would you agree with me that you raised the issue about a job with Mr Williams as kitchen worker on a number of occasions?

Mr Horneman-Wren: Mr Williams, you'll know, has said in a statement that there were a couple of positions in the kitchen that occurred in or about September 2006?

Mr Horneman-Wren: He can't put a precise date upon it?

Mr Horneman-Wren: You say that you can date the first time you think that you raised the issue with him as the 31st of August 2006?

Mr Horneman-Wren: So you're pretty much on common ground, would you agree, with Mr Williams that it's pretty much September 2006 that we're dealing with?

Mr Horneman-Wren: And you're on common ground with Mr Williams that you raised with him, on a number of occasions, your getting a position in the kitchen?

Mr Horneman-Wren: Now, it's also your case, isn't it, that you showed Mr Williams the deed; that's correct?

Mr Horneman-Wren: Eventually; in fact that's quite an accurate description, I would suggest, because it didn't occur initially, did it?

Mr Horneman-Wren: In fact, Mr Williams, you'll know from having read his statement, says that it was after a couple or a few of the occasions that you'd raised it with him, that you said, "I've got an agreement" or "I've got - I've got a letter", something to that effect?

Mr Horneman-Wren: And do you agree that it was a couple of conversations into the series of occasions on which you asked him about a kitchen worker's position, that you first raised the issue of a letter?

Mr Horneman-Wren: And would you agree with me that to that point in time, Mr Williams had shown nothing to you in his conversations which suggested that he had any knowledge of such a letter or a deed?

Mr Horneman-Wren: In fact, to the contrary, I would suggest that's why you said to him, "I've got a letter"?

Mr Horneman-Wren: All right. And indeed, it would be true, wouldn't it, that Mr Williams, up until that point in time, had given you no indication either that he knew anything about your earlier complaint of discrimination against the department?

Mr Horneman-Wren: All right. And to be clear, the earlier case or complaint of discrimination, was one which concerned persons in the prison other than Mr Williams; he wasn't implicated in that at all, was he?

Mr Horneman-Wren: All right. Now, when you first raised the fact that you had a letter or a deed, you didn't have it with you at that time when you were discussing it with Mr Williams, did you?

Mr Horneman-Wren: It was, I suggest, in a later conversation, perhaps the next one a few days - two to three days afterwards, that you said again that you had a letter and Mr Williams said, "Well, you'd better go and get it." Do you agree with that?

Mr Horneman-Wren: In general terms, that's the course of events?

Mr Horneman-Wren: And indeed, on that occasion, I suggest you did, at that time or sometime fairly shortly afterwards, go and get a copy of the deed and show it to Mr Williams?

Mr Horneman-Wren: All right. Now, I want to suggest to you, Mr Vidler, that at that point in time, which is, you'd agree, a few of the conversations into the series of conversations, Mr Williams had already indicated to you that you wouldn't be getting the kitchen worker's job?

Mr Horneman-Wren: And, in fact, he'd indicated to you - that to you prior to you even mentioning that you had a letter?

Mr Horneman-Wren: And he had, in fact, said to you that he thought you were unsuitable but didn't tell you any detail about what that was about?

1. Mr Williams' own evidence was that he was unaware of the existence of the Deed at the time he made his decision not to give Mr Vidler the Unit Kitchen Worker's position. The only evidence before QCAT capable of suggesting that Mr Williams did have knowledge, a statement identified on the face of the document as that of another prisoner, "John William Tuff"[4], must be rejected for reasons that are discussed in some detail below.

2. In view of Mr Vidler's statements during his cross-examination, and the evidence given by Mr Williams, I find that Mr Williams cannot be shown to have had knowledge of Mr Williams' previous impairment discrimination complaint. Thus, Mr Williams cannot be shown to have victimised Mr Vidler in a manner that contravened s129 of the Act.

1. On 1 February 2007, in her capacity as a Correctional Supervisor, Ms Gomm issued Mr Vidler with what is known in the prison system as a "major breach" of prison discipline. This followed Mr Vidler's refusal to follow her instructions to present himself for transport to the Princess Alexandra Hospital for a medical appointment relating to his wrist. This episode is discussed in greater detail below, but for present purposes, it is sufficient to say that Mr Vidler's refusal was because he had a conflicting appointment for computer access time, which he needed to finalise legal documents relating to this matter.

2. The events that led to the breach have been summarised by Ms Gomm in a "Breach Summary" incident report appended to her statement dated 23 October 2009.[5] In that statement, Ms Gomm wrote:

"Prisoner Vidler has previously initiated litigation against QCS for failing to provide adequate medical services."

1. I do not accept Mr Vidler's assertions that this statement can be inferred to establish knowledge by Ms Gomm of his previous impairment discrimination complaint. This view is supported by Ms Gomm's own evidence that she only became aware of this history following the events that led to the major breach, when she was advised by Nurse Marshall at the Princess Alexandra Hospital that Mr Vidler "had previously instigated litigation against the Department for not providing adequate medical treatment for his hand or arm."[6] Furthermore, there was evidence before QCAT that Mr Vidler had previously commenced personal injury proceedings against the First Respondent in the Supreme Court of Queensland.[7] In the premises, I accept the view that Ms Gomm did not have knowledge of (1) either the personal injury claim or the impairment discrimination complaint at the time she issued Mr Vidler with a major breach, and further accept that (2) her knowledge of the matter after speaking with Nurse Marshall extended to the personal injury claim only.

2. Mr Vidler's argument that Ms Gomm can be inferred to have knowledge of his previous impairment discrimination complaint must fail. Retrospective knowledge of the personal injury claim cannot support a complaint by Mr Vidler of victimisation in contravention of s129 of the Act.

1. In contrast to Mr Williams and Ms Gomm, as a consequence of his position as Block Manager, Secure One Block at Woodford, Mr Voss was aware of Mr Vidler's previous impairment discrimination complaint.[8]

2. The conduct which Mr Vidler complains of following the major breach cannot, despite Mr Voss's knowledge of the impairment discrimination complaint, amount to unlawful discrimination. Rather, Mr Voss was motivated by reasons relating to overall prison security and policy. It was Mr Voss's evidence that it was prison policy for any prisoner who:

"incurs a major breach resulting in a seven day confinement to be transferred out of Secure One."[9]

1. Further, Mr Voss's evidence was that following Mr Vidler's major breach and seven day confinement, he:

"would have been automatically transferred out of Secure One into Secure Two."[10]

1. During the hearing, learned Senior Counsel for the Respondents referred to the remainder of Mr Vidler's allegations of victimisation (denial of access to a psychiatrist and/or counsellor, disregard for complaints of personal safety, and denial of access to a prison complaint system known as the "blue letter" system) as being part of a "conspiracy net". This is, in my view, a valid assertion.

2. While I find that the conduct Mr Vidler complains of by the First Respondent does not amount to victimisation in contravention of the Act, had the events that unfolded following the entry of Mr Vidler and the First Respondent into the Deed of Settlement been handled differently, Mr Vidler's belief that a "conspiracy net" existed might have been avoided. It is important to canvass the Deed of Settlement to some extent, for the reason that it has played an important role in the circumstances that led to Mr Vidler making this complaint of victimisation. Further, s29 of the QCAT Act compels me to ensure that Mr Vidler understands "any decision of the tribunal relating to the proceeding".

It takes little imagination to presuppose that Mr Vidler believed that, having complained about impairment discrimination, the Deed of Settlement in that matter would have some utility in securing the employment he sought. QCAT is unable to consider any issues pertaining to whether the First Respondent has honoured the Deed of Settlement. However, as there is a nexus to the matters presently before QCAT, it is my view that the Deed offered Mr Vidler little real benefit, as a result of its having been drawn in very broad language as "[t]o consider making the Complainant an offer to work".

Of course, I do not have the benefit of knowing what discussions were had between Mr Vidler and the First Respondent at the point in time that the choice of language - "to consider" - was elected. What is apparent to me is that the Deed gave Mr Vidler genuine hope that he would again be able to work in the kitchen at Woodford. The evidence before QCAT established that kitchen work is a coveted employment position within the correctional services system. Upon realising that the Deed did not, in fact, mean that he would be offered employment as a Unit Kitchen Worker at the time that such position became available, Mr Vidler's feelings that he had been victimised (as that term is understood commonly) are understandable. However, this does not translate to a finding by QCAT that Mr Vidler has been subjected to unlawful discrimination in contravention of the Act.

With hindsight, it is easy to suggest that the First Respondent's approach with respect to the Deed may have resulted in the settlement of the dispute that existed at that juncture (that being the impairment discrimination complaint), but perhaps led to the creation of a bigger dispute thereafter (that being the present victimisation complaint). But for the belief that Mr Vidler had about the rights the Deed afforded him, many of the events that unfolded leading to the complaint of victimisation now before QCAT may not have happened. For example, I accept that the reason Mr Vidler did not present for transport to the Princess Alexandra Hospital, which led to the "major breach" of discipline by Ms Gomm, was for the reason that he had arranged computer access time on the morning for purposes of progressing his victimisation complaint.

The evidence before QCAT on this issue (set out above) was that Mr Vidler had been asked to present for a medical escort to the Princess Alexandra Hospital for a review following the prior removal of a cast from his wrist. As he resides within the correctional services system, Mr Vidler does not have the luxury of making medical appointments at a time of his choosing; rather (and legitimately so) such appointments are made for him taking into account various operational requirements of the prison. In a case of unfortunate scheduling, Mr Vidler had arranged to be provided with computer access time at the same time as the medical appointment. Mr Vidler then refused to attend the medical appointment, leading to the major breach of discipline by Ms Gomm.

Whilst Mr Vidler's conduct in refusing transport to a medical appointment might seem irrational, it must be placed within its prison context. At the hearing of this matter, Mr Vidler explained (and I accept his evidence on this issue) the consequences of missing his computer time:

Vidler: I'd requested computer access to deal with that legal matter and I was allotted computer access at that time on that day. Computer access was quite difficult to obtain at times. There was only one computer available for 200 to 300 inmates, so it was very important that if you were allotted time on the computer that you - you kept that appointment, otherwise it may be some time-----

Member: So you had already been allocated computer access on the 1st of February?

Vidler: I'd sought and - and - I sought computer access for - for February, yes, before - before the end - the month of February actually to complete this document, and that was - the deadline was due on the 1st or 2nd of February that-----

Vidler: It's a - it's an Anti-Discrimination Commission document, 17th of January 2007. It was to provide a response to matters raised in the submission and I had 14 days from that date to submit those - the answer to those submissions.

1. I am not suggesting that Mr Vidler's conduct in the circumstances was acceptable, but rather am suggesting that the frustration he experienced in endeavouring to exercise his rights (whether said exercise be valid or misguided) is palpable. Mr Vidler was conscious of the importance of complying with time limits set by the Tribunal for the purposes of lodging submissions. Obviously, he was not in a position to either reallocate his computer time, or reappoint the scheduled visit to the hospital, and was left with the choice to either (1) compromise his ability to properly manage his case before the Anti-Discrimination Commission; or (2) refuse to attend the medical appointment. I do not understand, based upon the evidence put before me, there to have been any efforts by Ms Gomm or by other Correctional Services Officers to endeavour to find a solution to the problem with the computer timing. This is unfortunate, as such actions may have allayed Mr Vidler's concerns and led to a different end result.

1. The building of Mr Vidler's "conspiracy net" was widened as a result of the challenges he faced with respect to disclosure. In addition to the practical difficulties Mr Vidler experienced in managing his litigation, through apparent lack of access to prison computer facilities at the relevant times, it was also apparent that Mr Vidler experienced considerable difficulty with the process of gathering evidence to support his complaint that he had been victimised. The uphill battle that prisoners confront in attempting to seek civil redress in circumstances where they allege unlawful discrimination have been summarised in the report Women in Prison: a report by the Anti-Discrimination Commission Queensland.

2. Given that computer time is considered a privilege by prisoners, the ordinarily straightforward process of compiling sworn statements of witnesses becomes complex. Understandably, a culture of self-interest develops with respect to individual privileges, such that prisoners are unwilling to give up personal computer time in order to draft witness statements in support of other prisoner's complaints. It is for this reason that Mr Vidler used his own computer time to draft statements in his language, for signature by other prisoners who allegedly witnessed the matters in question.

3. One of the statements that Mr Vidler produced, which I have mentioned above in discussing the case against Mr Williams, was signed by an inmate identified on the face of the document as "John William Tuff"[11]. The "Tuff Statement" includes the following paragraphs:

"7. That on or about the 13th September 2006, I was at the unit officers "Shop Front Desk" when the complainant Bradley Vidler was seeking employment in the position of Unit Kitchen Worker and I overheard the conversation between himself and the Corrective Services Officer Peter Williams rostered on in the unit that day regarding availability of that employment position.

8. That during that conversation I heard the complainant tell CSO Peter Williams that he had an agreement with the Queensland Corrective Services Commission which entitled him to be considered for the position of a Unit Kitchen Worker in the unit where he was accommodated when that position became available, I also witnessed the complainant show to CSO Peter Williams the "Deed of Settlement" referred to."

1. The Tuff Statement contradicts Mr Vidler's own evidence given during cross-examination by Counsel for the Respondents. That said, as the Tuff Statement was the only evidence other than Mr Vidler's direct evidence that could support his complaint of victimisation, it would have been ideal to have tested the statement at the hearing. Regrettably, this became impossible for the reason that no prisoner named John William Tuff could be located.

2. I say regrettably for the reason that the Tuff Statement was witnessed and stamped by a Justice of the Peace (Qualified). By virtue of the requirements imposed on Justices of the Peace to identify the persons for whom they witness the signing of documents, one would anticipate that, minimally, somebody named John William Tuff could be located within the prison system. Apparently, however, when the Justice of the Peace signed the Tuff Document, these steps were not taken. I adjourned the matter to endeavour to locate, if not John William Tuff himself, the witnessing Justice of the Peace. I endeavoured to do so, on the unlikely chance that the Justice of the Peace might recall the circumstances surrounding the signing of the statement. As it eventuated, the Justice of the Peace in question was a retired Correctional Services Officer, who surely could have been expected to appreciate the importance of following the appropriate process for the witnessing of signatures within the correctional services system.

3. I am, however, satisfied, based upon a Transfer History placed into evidence by the Respondents[12], that no prisoner named John Tuff or John Tough (accounting for potential spelling permutations) was domiciled in the Woodford Prison at the relevant time. Naturally, that begs the question as to who actually signed the witnessed Tuff Statement, but I am satisfied that QCAT has taken every possible step to locate Mr Tuff, and thus has afforded Mr Vidler natural justice and procedural fairness in the hearing process.

1. As there is no evidence before QCAT capable of supporting a view that Mr Vidler has been subjected to victimising conduct by either the First or Second Respondent, Mr Vidler's complaint must fail.

1. The Hearing Exhibit marked "31" "Transfer History" be confidentially sealed, for use by QCAT only.

[1] This complaint was made to the Anti-Discrimination Commission Queensland and subsequently referred to the Anti-Discrimination Tribunal Queensland.

[2] Exhibit 6: Anti-Discrimination Tribunal Queensland Form 8 - bundle of materials including Deed of Settlement.

[3] 18 June 2010 Outline of Submissions on Behalf of the Respondents, paragraph 6.

[4] Hearing Exhibit 32, Witness Statement of John William Tuff, witnessed 24 August 2009.

[5] Hearing Exhibit 25, "DG-2", Statement of Deirdre Gomm, witnessed 23 October 2009.

[6] Hearing Exhibit 25, paragraph 33, Statement of Deirdre Gomm, witnessed 23 October 2009.

[7] Hearing Exhibit 11, Claim and Statement of Claim for personal injuries, BS8096/05.

[8] Hearing Exhibit 13, paragraphs 10 and 31-32, Statement of Desmond Eric Voss, witnessed 11 September 2008.

[9] Hearing Exhibit 13, paragraph 24, Statement of Desmond Eric Voss, witnessed 11 September 2008.

[10] Hearing Exhibit 13, paragraph 26, Statement of Desmond Eric Voss, witnessed 11 September 2008.

[11] Hearing Exhibit 32, Witness Statement of John William Tuff, witnessed 24 August 2009.

[12] Hearing Exhibit 31 "Transfer History". In consideration of the sensitive nature of this document, I have ordered that this document be subject to a confidentiality order and sealed, for use by QCAT only. The information contained in the document relates to prisoners other than Mr Vidler, and confidentiality is essential to ensure the proper administration of justice.