FEDERAL COURT OF AUSTRALIA

EIX20 v State of Western Australia (No 2) [2025] FCA 28

ORDERS

THE COURT ORDERS THAT:

1.    The parties are to provide within 14 days a joint minute of proposed orders to Chambers that, having regard to matters agreed between the parties and these reasons, records those parts of the applicant's proposed third further amended statement of claim for which leave to file and serve is granted and those parts where leave is refused.

2.    The respondent's strike out and summary judgment application accepted for filing on 10 January 2024 is otherwise dismissed.

3.    Costs reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    This proceeding relates to the treatment of a young Noongar Aboriginal man whilst he was detained at Rangeview Detention Centre and Banksia Hill Detention Centre. Relevantly, the applicant was confined at times in isolation units known as Harding and Cue. The applicant brings a number of claims against the State of Western Australia, including under the Disability Discrimination Act 1992 (Cth) (DDA) and the Racial Discrimination Act 1975 (Cth) (RDA). In short, the applicant complains that during his detention he was discriminated against by the State on the basis of his disabilities and what he describes as his Aboriginality.

Nature of the application – strike out issues addressed on application for leave to replead

2    This application is a further application by the State to strike out parts of the applicant's pleaded claims, coupled with an application by the applicant for leave to replead.

3    The background to the pleading issues and the nature of the causes of action pursued by the applicant are addressed in earlier reasons, EIX20 v State of Western Australia [2022] FCA 1357 (EIX20 No 1). For efficiency these reasons assume familiarity with those reasons.

4    In EIX20 No 1, I made orders striking out particular paragraphs of the further amended statement of claim and granting leave to file a second further amended statement of claim.

5    After the applicant filed his second further amended statement of claim, communications between the parties ensued for some time as to whether the amendments addressed the matters determined in EIX20 No 1. Rather than pursue a further strike out application at that time, the applicant provided a draft third amended version to the State. Correspondence between the parties continued. In the end, the parties have been unable to resolve whether the second further amended statement of claim should be struck out or whether the applicant should have leave to file a proposed third further amended statement of claim.

6    Accordingly, this application proceeds primarily as an application for leave to file the proposed third further amended statement of claim, which I will refer to as the 3FASOC for convenience.

7    I acknowledge that the parties resolved a number of significant issues before the hearing.

8    The applicant by the 3FASOC advances five claims of unlawful discrimination arising from alleged contraventions of the DDA; and two allegations of discrimination arising from alleged contraventions of the RDA.

9    The State maintained its objection to leave in respect of proposed amendments to two of the pleaded allegations of unlawful discrimination in contravention of the DDA, and in respect of both allegations of contraventions of the RDA.

10    The four pleaded allegations in the 3FASOC in issue are:

(1)    paras 52-68: the claim titled 'Education services – direct discrimination (failure to make reasonable adjustments)' (first issue);

(2)    paras 85-89: the claim titled 'Other services – direct discrimination' (second issue);

(3)    paras 91A-91G: the claim of unlawful discrimination under s 9(1) of the RDA relating to the applicant being refused permission to attend a NAIDOC week function (third issue); and

(4)    paras 92A-92C: the claim of unlawful discrimination in the proviso of services under s 13(a) of the RDA, similarly relying on the applicant being refused permission to attend the NAIDOC week function (fourth issue).

11    For the following reasons I refuse leave to file the 3FASOC in its current form insofar as the first issue is concerned, but grant leave in relation to the second, third and fourth issues (with some qualifications).

Principles as to pleading

12    As to leave to amend, the present applications principally concern the operation of r 16.51(2) and r 16.53 of the Federal Court Rules 2011 (Cth). As to the potential for claims to be struck out, the State relies on r 16.21(c), r 16.21(d) and r 16.21(e). The application of those rules is subject to the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth). I summarised the principles in relation to r 16.21(c), r 16.21(d) and r 16.21(e) in EIX20 No 1 at [27]-[34] and again rely on that summary.

13    The test to be applied under r 16.21 on the one hand, and r 16.51(2) and r 16.53 on the other, are similar. If a proposed pleading in respect of which leave to amend is sought would be liable to be struck out, either because the pleading is bad in law, or is defective as a pleading, then leave to file the proposed pleading generally will not be allowed: Research in Motion Ltd v Samsung Electronics Australia Pty Limited [2009] FCA 320; (2009) 176 FCR 66 at [21]-[22]; and Caason Investments Pty Ltd v Cao [2015] FCAFC 94; (2015) 236 FCR 322 at [21].

14    There was no real issue between the parties as to the principles governing the rules of pleading. I summarised them generally in EIX20 No 1 at [19]-[26].

15    The rules apply to pleadings concerning anti-discrimination legislation, including those alleging contraventions of the DDA and the RDA: Varasdi v State of Victoria [2018] FCA 1655 at [3] (O'Callaghan J). The State collected a number of principles from the authorities which address pleadings in this particular context, and the following generally paraphrases that summary:

(1)    In the context of alleged discrimination in education, the DDA is not an adequate vehicle for addressing all complaints about the manner in which educational services have been provided to a learner: Walker v State of Victoria [2012] FCAFC 38 at [72] (Gray J, Reeves J agreeing); and Kiefel v State of Victoria [2013] FCA 1398 at [4]-[6] (Tracey J). It does not empower the Court to undertake a general inquiry into the best interests or the vulnerabilities of a learner with disabilities: Walker at [73].

(2)    A pleading under the DDA must put the respondent on notice of the case it is required to meet, rather than asking the respondent or the Court to identify a case for it. The pleading must do 'more than scope out the nature of the problem, and leave it to the trial of the action for the content of the respondent's omissions to become apparent': Sievwright v State of Victoria [2013] FCA 964 at [48] (Jessup J).

(3)    In a proceeding alleging direct discrimination, it is necessary to identify with particularity the matters said to give rise to the claim of direct discrimination under the DDA: Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); and Wade v State of Victoria [2012] FCA 400 at [6] (Bromberg J).

(4)    An allegation that a reasonable adjustment is required must be pleaded with precision: Wade at [6]; and Lambert v State of Victoria [2014] FCA 1064 at [36] (Davies J).

(5)    A precise articulation of what is said to constitute discrimination is particularly important in light of s 29A of the DDA. Parliament has chosen in this section to provide an exception to otherwise discriminatory conduct if a purported discriminator can establish that 'avoiding the discrimination would impose an unjustifiable hardship on the discriminator'. A respondent cannot seek to establish, and a Court cannot determine, whether such an unjustifiable hardship would arise unless there is a precise articulation of what constitutes the discrimination: Varasdi at [12], citing in a similar context Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 at [25] (Mortimer J).

First issue – education services – direct discrimination (failure to make reasonable adjustments)

16    The DDA expressly addresses disability discrimination by an educational authority in the area of education. It is not in issue that Banksia Hill was an institution at which education or training was provided by the State.

Statutory framework

17    Relevantly, s 5 of the DDA provides as follows:

5    Direct disability discrimination

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

(2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

(b)    the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

18    'Reasonable adjustment', as referred to in s 5(2)(b), is defined in s 4 of the DDA as follows:

An adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.

19    That is, the definition operates as a deeming provision, and the word 'adjustment' is to be given its normal meaning: Watts at [22], [27].

20    'Unjustifiable hardship' is defined in s 11:

(1)    For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:

(a)    the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;

(b)    the effect of the disability of any person concerned;

(c)    the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;

(d)    the availability of financial and other assistance to the first person;

(e)    any relevant action plans given to the Commission under section 64.

Example: One of the circumstances covered by paragraph (1)(a) is the nature of the benefit or detriment likely to accrue to, or to be suffered by, the community.

(2)    For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.

21    Division 2 of the DDA is headed 'Discrimination in other areas'. Section 22 is headed 'Education'. Section 22(2) provides, relevantly:

It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability:

(a)    by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or

…

(c)    by subjecting the student to any other detriment.

22    Section 22(2A) provides:

It is unlawful for an education provider to discriminate against a person on the ground of the person's disability:

(a)    by developing curricula or training courses having a content that will either exclude the person from participation, or subjecting the person to any other detriment; or

(b)    by accrediting curricula or training courses having such a content.

23    Section 29A provides for an exception:

Unjustifiable hardship

This Division (other than section 30) does not render it unlawful for a person (the discriminator) to discriminate against another person on the ground of a disability of the other person if avoiding the discrimination would impose an unjustifiable hardship on the discriminator.

24    That is, in certain circumstances where s 22 of the DDA would otherwise make discrimination in education unlawful, the educational authority will have available the exception of unjustifiable hardship.

Summary of what applicant must establish

25    Therefore, having regard to the text of s 5 of the DDA, it can be said in general terms that in order to succeed in his claim in unlawful direct discrimination the applicant must establish that the State failed to make the reasonable adjustments, which has, or would have, the effect that the applicant was, because of his disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different. This requires identifying and determining:

(1)    the alleged reasonable adjustments that the State failed to make and the alleged effect of failing to make them (the reasonable adjustment issue);

(2)    the alleged circumstances attributed to an actual comparator or hypothetical comparator (a person without the disability) in the same or not materially different circumstances and the alleged less favourable treatment of the applicant relative to that comparator (the comparator issue); and

(3)    if less favourable treatment is established, whether the less favourable treatment of the applicant relative to the comparator was because of his disability (the causation issue).

26    Little arises in the context of this application in regard to the comparator issue.

27    The High Court in Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 explained the manner in which the circumstances relevant to a comparator are to be addressed: at [113]-[114] (McHugh and Kirby JJ) and [223]-[228] (Gummow, Hayne and Heydon JJ). The circumstances that are the same or not materially different include all of the objective features which surround the treatment of the disabled person by the discriminator: Purvis at [224].

28    In this case it is pleaded in the 3FASOC that the hypothetical comparator is 'a child detained in Banksia Hill without the applicant's mental health and cognitive disabilities' in not materially different circumstances.

29    As will be seen below, the parties are in dispute as to the pleading and application of the reasonable adjustment issue and the causation issue.

Reasonable adjustment – principles

30    The authorities provide guidance on the nature of a reasonable adjustment. Relevantly, in Watts Mortimer J said the following:

[23]    To what does the adjustment relate? By s 5(2), it is made 'for' the person with a disability. It is not made 'to' the position the person occupies. It is not made 'to' the equipment a person uses. In the context of discrimination at work in Div 1 of Part 2 of the DDA, it is an alteration or modification 'for' the person, which operates on the person's ability to do the work she or he is employed or appointed to do. The adjustment is to be enabling or facultative. There is, in my opinion, no reason in the text, context or purpose of s 5(2), read with s 4 and within the DDA as a whole, to construe the word 'adjustment' in a way which might arbitrarily limit the kinds of modifications or alterations required to enable a disabled worker to perform his or her work. Technology changes and advances at an increasing pace and disabled people can be the beneficiaries of such changes and advances. The technological advance which enables Professor Stephen Hawking to compose text and communicate orally through cheek movements detected by an infrared switch mounted on his spectacles is but one well-publicised example of an 'adjustment' that, a decade or two ago, may have been little more than a theory.

[24]    Similarly, the range of disabilities covered by the DDA, evident from the definition of 'disability' in s 4 (some with clear physical manifestations and some without), means that the range of modifications for a particular person may be very specific to that person. Two individuals may have the same 'disability' but how that 'disability' manifests itself, and the impact it has on an individual's capacity to work or access services or education, may vary widely. Breadth and flexibility in the meaning of the word 'adjustment' is to be expected in a statute which recognises and seeks to protect (within the legislative choices made by Parliament) the dignity and rights of disabled people as individuals. Where the disability is psychological, 'adjustment' must be construed in a way which will ensure the same level of protection under the DDA to those with this kind of disability as to those with any other disability. Ultimately then, so long as it is a modification or alteration 'for' a person with a disability, the DDA says nothing about how specific or non-specific the adjustment must be. An adjustment 'for' a person may involve only technology, or it may involve only human interactions, or something in between. An adjustment 'for' a person may change over time, and may need to be flexible and adaptable. Much will depend on the particular disability and the particular individual, together with the circumstances in which the adjustment must operate. In order for s 5(2) of the DDA to provide, insofar as it is intended to, substantive equality for all individuals with disabilities, where those disabilities have different impacts on different people, it is important that there be no rigid categorisation or stereotyping of a concept such as an 'adjustment'.

[25]    There is one relevant qualification to the breadth of what can constitute an 'adjustment' for the purposes of the DDA, as Australia Post submitted. Even taking into account the potential need for flexibility and adaptations, the adjustment must be sufficiently identifiable so as to enable the alleged discriminator (and the Court if need be) to determine whether making the adjustment will impose unjustifiable hardship on the discriminator. Otherwise, the exception in s 21B could be frustrated. For the reasons I express below at [45], this issue also arises under s 21A(1) in respect of the inherent requirements exception. The level of specificity required will be a factual question in each case.

…

[27]    The somewhat absolute nature of the definition of reasonable adjustment has tangible consequences for potential discriminators. There is no room in the operation of s 5(2) for a discriminator, or a court, to assess conduct, or modifications, by reference to notions of reasonableness. The statute removes that capacity. Unless a modification involves unjustifiable hardship, it will by operation of s 4 be a reasonable adjustment and the discriminator must make it 'for' the person, to avoid the consequences s 5(2) (read with other provisions in the DDA) might otherwise impose. The legislative choice about what is 'unreasonable' for the purposes of this scheme is expressed in the inherent requirements exception, and in the concept of unjustifiable hardship. …One consequence is that what constitutes 'hardship' and the circumstances in which it might be 'unjustifiable' may be broader than if the statute used reasonableness as a criterion of liability.

31    Although Watts concerned the application of the DDA to discrimination in employment rather than education, Mortimer J's analysis may be readily adopted. Her Honour emphasised that the nature of an adjustment under the DDA must be 'enabling or facultative'. So, a reasonable adjustment is an adjustment made for a person with a disability that is to be enabling or facultative to enable a person to obtain 'any benefit provided by the educational authority' or the absence of which subjects the student 'to any other detriment'. It is not an outcome in and of itself.

32    More than one adjustment may be necessary, and more than one option may be available: Watts at [26].

33    Notwithstanding the width of what may constitute an adjustment, the adjustment must still be sufficiently identifiable to enable the respondent and, if required, the Court to determine whether making the adjustment would impose unjustifiable hardship on the respondent within the meaning of the DDA: Wade at [6]; Lambert at [36]-[37]; Watts at [25]; State of New South Wales (Department of Justice - Corrective Services) v Huntley [2017] FCA 581 at [149] (Perry J); and Winters v Fogarty [2017] FCA 51 at [65]-[67] (Bromberg J). The need for a respondent to put on evidence to deal with the question of unjustifiable hardship also highlights the obligation to clearly identify the reasonable adjustments: Gordon v St Vincent's Hospital Sydney Limited [2023] FCA 1188 at [29] (Abraham J).

34    It follows that the material facts comprising the reasonable adjustments must be pleaded and particularised: Izzo v State of Victoria (Department of Education and Training) [2020] FCA 770 at [51] (Moshinsky J); Varasdi at [11]-[13], [19]; and Gordon at [16].

Reasonable adjustments – application

35    The applicant pleads that he was the subject of direct discrimination in the provision of educational services by reason of the failure of the State to make reasonable adjustments. There are relevantly six categories of such 'reasonable adjustments' in issue. It is pleaded to the effect that:

(1)    the State did not conduct comprehensive and regular assessments of the applicant's academic progress and attainment (para 53 of the 3FASOC);

(2)    the State did not deliver the curriculum using explicit instruction, visual supports, technology and computer-aided instruction or peer-mediated instruction (para 58);

(3)    the State did not use a tablet with relevant apps to assist the applicant to improve his literacy and numeracy skills (para 59);

(4)    the State did not provide training to teaching staff about the appropriate use of plain English when communicating with the applicant (para 61);

(5)    the State did not provide the applicant with a calm, distraction-free learning environment (para 63); and

(6)    the State did not provide the applicant with psychological safety in his learning environment, in that during specified periods he was required to learn within Harding and Cue, being an environment in which he experienced emotional and psychological distress (para 64).

36    The pleadings application as a whole in relation to the first issue is largely resolved for present purposes by the decision in relation to causation (below), but as there is likely to be a further pleading, it is appropriate to address the six contested categories of pleaded reasonable adjustments.

'The State did not conduct comprehensive and regular assessments of the applicant's academic progress and attainment'

37    The State contends that the applicant does not identify an alteration or modification to the provision of education by the State to the applicant, but his submission appears rather to be a complaint about the frequency or rigour of the assessment of the applicant's progress.

38    Some guidance in this regard is provided by Moshinsky J in Izzo. The purported pleading was to the effect that the respondent had failed to make a reasonable adjustment in the form of a 'functional behavioural assessment'. The pleading did not contain material facts as to the content of such an assessment. His Honour struck out this part of the pleading on the basis that (at [50]):

… insofar as this section of the claim relies on the failure to carry out a Functional Behavioural Assessment …, I do not consider it sufficiently arguable that this is capable of constituting a failure to make a reasonable adjustment. As the respondent submits, an assessment is a tool of analysis that may recommend the making of certain adjustments. The conduct of such an assessment does not fall within the descriptions of an 'adjustment' referred to in the cases. For example, in Watts, Mortimer J said at [22] that the word 'adjustment' is left undefined by the statute and is to be given its ordinary meaning as 'an alteration or modification', referring to the Oxford English Dictionary (online edition). The mere conduct of an assessment as pleaded in the statement of claim does not itself involve an alteration or modification; indeed, it may recommend that no changes be made.

39    Whilst the nature of the pleaded assessment is somewhat different, the difficulties referred to by Moshinsky J similarly exist in this case. Furthermore, the State is left to guess as to the nature of the assessment that it is said ought to have been provided and what is meant by 'comprehensive' and 'regular'. The applicant contended that assessments are an iterative process and that he intends to evince expert evidence as to the 'pedagogical benefit' of assessments. It is unclear whether he appears to suggest that the assessment process itself (rather than its iterative outcomes and recommendations) is an adjustment. It is not sufficient to allude to expert evidence that might be given in the future as a means to justify the pleading as it currently stands. Such an approach does not assist in informing the State of the case it must meet. As presently pleaded, the plea (para 53) does not properly plead an adjustment and does not disclose a reasonable cause of action.

'The State did not deliver the curriculum using explicit instruction, visual supports, technology and computer-aided instruction or peer-mediated instruction'

40    Again, the applicant contended that these terms denote 'specific pedagogical techniques well-understood within that discipline' and as to which it was said the applicant intended to lead expert evidence. That might be so, but it does not resolve the pleading issues with the claim.

41    The State submitted that the pleading does not describe an adjustment to be made for a person with a disability. In particular, the pleading is made at a high level of generality. It submitted that having regard to Izzo, the applicant should identify the modifications needed – for example, the type of visual supports and the type of technology or computer-aided instruction or peer-mediated instruction to which the applicant refers, and how the curriculum needed to be modified, so that the State might then determine its position as to hardship in making the relevant adjustments.

42    I accept the State's contentions as to the difficulties with the pleading. It is embarrassing within the meaning of r 16.21(d).

'The State did not use a tablet with relevant apps to assist the applicant to improve his literacy and numeracy skills'

43    The complaint in relation to this pleading is more narrow. The State contends that the difficulty is knowing what is meant by 'relevant apps'. The applicant submitted that he would not be able to describe the nature of the relevant apps until trial (or that it was a matter for trial).

44    This plea could potentially be made good with proper particulars that provide appropriate information to the State. It is conceptually open, provided it is properly particularised. Currently, it does not adequately disclose the content of the adjustment that it was said should have been made and is embarrassing. I do not accept that it is sufficient to submit that evidence will be given at trial. There must be a factual basis to the pleading. The State must be in a position to prepare to meet the case made and in particular put on evidence to deal with the question of unjustifiable hardship.

'The State did not provide training to teaching staff about the appropriate use of plain English when communicating with the applicant'

45    I accept the State's submission that there is a difficulty with the way the alleged adjustment is pleaded. Providing training to teachers is not an adjustment for the applicant, within the principles discussed in Watts. Again, it might be conceptually open to plead an adjustment based around the type of teachers that might be required, but it is not properly pleaded at present and is embarrassing. Presumably the applicant contends that teaching staff with specialised skills should have been provided to him. If that is the case, the applicant must still descend into some material facts about the content of the training and why particular skills were required.

'The State did not provide the applicant with a calm, distraction-free learning environment'

46    The State submitted that this pleading does not identify a modification or alteration but rather an outcome to be achieved through unstated adjustments. The State referred by analogy to Varasdi, in which the rejected pleaded adjustment was to the effect of a failure to provide an environment with protection from bullies. I do not consider the analogy particularly useful. The applicant in this case has attempted to plead a denial of access to education services which came about as a result of the failure to provide an appropriate learning space, and which (implicitly) he asserts could have been provided. He contends (as was more apparent from submissions) that the reasonable adjustment the State failed to provide was in fact the provision of a learning space modified from that in which he was required to learn. The applicant's pleading is a slight improvement on that in Varasdi although it still does not make the case sufficiently apparent and is ambiguous and embarrassing. I consider that conceptually the matters to which the applicant refers are capable of being properly pleaded as an adjustment, but in its current state the pleading does not achieve that. The purported adjustments and modifications to the learning environment which would have enabled the applicant to learn are not sufficiently elucidated.

'The State did not provide the applicant with psychological safety in his learning environment, in that during specified periods he was required to learn within Harding and Cue, being an environment in which he experienced emotional and psychological distress'

47    The same arguments that were relied upon for the preceding adjustment were relied upon in regard to this claim. Again, the State said that the applicant purports to plead an outcome rather than an adjustment, and that the content of the adjustment is unclear. I agree that the content of the adjustment and how it is said to be enabling or facilitative is unclear. Counsel for the applicant described the nature of the applicant's case more accurately in oral submissions, submitting that the adjustment that was required, and that would enable the applicant to learn, was for the State to remove him from those places.

48    The applicant should replead this adjustment if he seeks to rely upon it. As it currently stands, it is ambiguous and embarrassing. Expressed generally, he must identify the status quo at the time, then the alteration or modification that was required for the applicant, and the specific content of the alteration or modification.

49    It follows that I decline to grant leave to the applicant to rely on the six adjustments in the form in which they are currently pleaded in the 3FASOC.

The pleaded case on causation

50    It is pleaded that the applicant suffered from a number of disabilities and vulnerabilities, including complex post-traumatic stress disorder, various drug and alcohol disorders, major depression and neurocognitive impairments in the domains of executive functioning and language. The applicant is said to have been at risk of or have a propensity for self-harm. With some qualification, the State does not admit these matters.

51    The applicant pleads that Banksia Hill was an institution at which education or training was provided by the State. So much is admitted by the State.

52    The applicant pleads the six reasonable adjustments referred to above (paras 53-64).

53    The applicant pleads (para 66) that by reason of the State's failure to make one or more of the reasonable adjustments, the applicant was unable to participate in the education program offered at Banksia Hill in the same manner as a child detained in Banksia Hill without the applicant's mental health and cognitive disabilities.

54    It is pleaded (para 67) that the alleged failure to make one or more of the reasonable adjustments pleaded 'had the effect that the applicant was, because of his mental health and cognitive disabilities, treated less favourably than a child detained in Banksia Hill without the Applicant's mental health and cognitive disabilities would have been treated in circumstances that are not materially different, by being denied access, or having his access limited, to a benefit provided by the Respondent, namely the educational services'.

55    The applicant then pleads that, by reason of those matters, the State has engaged in unlawful discrimination under s 22(2)(a) and/or s 22(2)(c) of the DDA. I accept the State's submission that this pleading should in any event be amended or clarified to reflect the terms of those provisions, which provide for an alternative rather than cumulative plea, although this is a side issue compared with the substantive deficiencies to which I now turn.

56    The State submitted that the pleading has the following deficiencies:

(1)    failure to identify reasonable adjustments capable of characterisation as such under the DDA (addressed above);

(2)    failure to identify any causal nexus between the alleged failure and the applicant's disability; and

(3)    the lack of precision in the expression of 'educational services' in the pleading and the failure to plead s 22(2)(a) and (c) of the DDA as alternatives.

57    The applicant proposes to amend the reference to 'educational services' where it appears in paras 66 and 67 to mean 'the education program offered at Banksia Hill'. The State agrees that leave should be given for such amendment, assuming the claim is not struck out. I have taken this proposed amendment into account in considering those paragraphs.

Causation – principles

58    Causation is squarely in issue between the parties.

59    Both s 5(1) and 5(2) refer to treatment that is less favourable 'because of the disability'. On its face, an applicant must establish a causal connection between their disabilities and the alleged unlawful discrimination.

60    The meaning or effect of 'because of' in the context of s 5(1) was summarised recently in State of New South Wales - Sydney Trains v Annovazzi [2024] FCAFC 120 (Bromwich, Raper and Shariff JJ) as follows:

[104]    It will be apparent from the interaction of these statutory provisions that it will be necessary to identify the acts and conduct of the alleged discriminator, as well as the reasons for those acts and conduct. In Purvis v State of New South Wales [2003] HCA 62; 217 CLR 92, Gleeson CJ considered that the applicable provisions of the DDA are concerned with the 'true basis' of the conduct in question: at [13]. The plurality stated at [236] that, relevantly, '…the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability?' (emphasis in original). Although this articulation of the 'central question' was strictly obiter, it has been cited with approval and applied in other decisions including by previous Full Courts: see Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; 256 FCR 247 at [27] and [41] (Bromberg J, Griffiths and Bromwich JJ agreeing on this point); and Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 at [58] and [84] (Black CJ, Tamberlin and Sackville JJ).

[105]    When determining the 'why', the plurality in Purvis stated at [225] that s 5(1) presents two questions:

(i)    How, in those circumstances, would the purported discriminator have treated a person, without [the person's] disability?

(ii)    If [the person's] treatment was less favourable than the treatment that would be given to a person without the disability, was that because of [the person's] disability?

(Emphasis in original).

61    The key authorities referred to in Sydney Trains, being Purvis and Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; (2017) 256 FCR 247, have been cited on numerous occasions. The High Court in Purvis addressed the causation question in s 5(1) of the DDA, prior to the introduction of s 5(2) in 2009 (by the Disability Discrimination and other Human Rights Legislation Amendment Act 2009 (Cth)). Section 5(2) was considered by Mortimer J in Watts. Importantly, it was considered by a Full Court in Sklavos.

62    In Sklavos, Bromberg J (with whom Griffith and Bromwich JJ relevantly agreed) rejected a submission that s 5(2) required a different approach to causation to that required by s 5(1) that focussed on whether the effect of a failure to make reasonable adjustments was discriminatory. As the nature of the causation element required by s 5(2) is live in this application, it is appropriate to set out a number of paragraphs from the reasons.

63    Relevantly, Bromberg J stated:

[30]    Dr Sklavos contended that s 5(2) requires a different approach to causation and comparison than that required by s 5(1). That much I would not dispute. By introducing concern for the making of a reasonable adjustment as well as for the less favourable treatment, the question of causation under s 5(2) is not as straightforward as for s 5(1). This is because on the face of the terms of the provision, an issue is raised as to whether the causation question is directed to the reason for the discriminator's failure to make the reasonable adjustment or to the reason for the less favourable treatment which results or to both of those matters. Dr Sklavos submitted that the primary judge's concern for the College's reasons for failing to make the reasonable adjustments were 'irrelevant' and 'distracting'. I do not agree. I see no reason why the causation question should not be asked in relation to all of the conduct of the alleged discriminator because the failure to make the adjustment will inevitably feed into the conduct of the discriminator constituting the treatment. The result is that where the disability is a reason for any of that conduct the causation element of s 5(2) will be established. The primary judge's concern with the reason for the College's refusal to make adjustments for Dr Sklavos was relevant and part of her Honour's conclusion that nothing that the College did was because of Dr Sklavos' disability.

[31]    However, Dr Sklavos' contention went further. It was submitted that 'the whole focus of paragraph (b) [of s 5(2)] is not on the treatment but the effect'. That is to say that whereas s 5(1) is concerned with the reason for less favourable treatment, s 5(2) is concerned with whether the effect of a failure to make a reasonable adjustment results in less favourable treatment. It was contended that the whole focus of s 5(2) was on 'the effect', that is, the effect of a failure to make the reasonable adjustment and that the reason for the conduct of the discriminator is not part of the relevant inquiry.

[32]    Dr Sklavos' construction of s 5(2) is wrong on a number of levels. That s 5(2) poses a causation question is obvious. The phrase 'because of the disability' appears. It must be dealing with causation and it must be given work to do.

[33]    Consistently with s 5(1), s 5(2) poses two questions - the comparator question and the causation question. Whilst the context is different, the comparator question - was the aggrieved person treated less favourably than a person without the disability would be treated in circumstances that are not materially different - is in the same terms. Just as for s 5(1) that inquiry identifies whether there is less favourable treatment. To my mind the next inquiry is the same as that identified by Gummow, Hayne and Heydon JJ in Purvis at [213] for s 5(1):

If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person's disability.

64    His Honour then considered the explanatory memoranda relevant to the introduction of s 5(2), rejecting Dr Sklavos' submission that it was introduced in order to remove or alter the causation inquiry defined in relation to s 5(1) but where s 5(2) was applied (at [36]). Bromberg J examined the approach of Mortimer J in Watts and rejected Dr Sklavos' submission that her Honour, by referring to the requirement for s 5(2)(b) as 'an inquiry into the effect of there being no reasonable adjustments for the aggrieved person', was intending to suggest that there was no requirement under s 5(2) to answer the same caution question – that is, whether the disability was a reason for the conduct of the discriminator (at [38]). His Honour continued:

[40]    … I do not consider that the causation question need not be asked. In comparable circumstances, Gummow, Hayne and Heydon JJ in Purvis at [231] and [232] said that both the comparative and causation questions needed to be asked and not be elided. In any event, I do not consider that Mortimer J was intending to suggest that the causation inquiry is different in s 5(2) than it is in s 5(1) in the sense for which Dr Sklavos contends: that a reason for the conduct need not be the disability. The application of the construction given to s 5(2) by Mortimer J to the facts of that case reveals that through the comparison inquiry the question of whether the applicant's disability explained the conduct (the unfavourable treatment) was both posed and answered (see at [249]-[254]).

[41]    There is no doubt that the effect of the discriminator's conduct may bear upon why the aggrieved person was treated as he or she was. In addressing the causation inquiry in s 5(1) what was said (in full) at [236] by the majority in Purvis was this (emphasis in original other than underlining):

For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed 'because of' disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it 'because of', 'by reason of', that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression 'because of'.

[42]    As those observations suggest, why an aggrieved person is treated in a particular way as a consequence of not being provided with an adjustment may be the result of the effect (perhaps the cost) upon the discriminator of the provision of the adjustment. But the existence of an effect does not change the nature of the causation inquiry.

[43]    I recognise that there is some ambiguity introduced into s 5(2) by the use of the word 'effect'. However, read in its context, the word 'effect' is there used to provide some nexus between the failure to provide the adjustment and the less favourable treatment, and does not diminish the requirement that the disability be a reason for the less favourable treatment. Unlike s 6, where the word effect is addressing the disadvantageous conduct itself ('effect of disadvantaging'), in s 5(2) the word 'effect' is addressing an anterior stage namely an omission that brought about the disadvantageous conduct. Understood in that way, just like in s 5(1), the nexus to disability is from conduct (the unfavourable treatment) and not from the effect of conduct as in s 6.

[44]    That construction is in harmony with the structure adopted by the DDA for separating direct disability discrimination from indirect disability discrimination, as well as providing internal harmony for s 5 itself. To construe the causation question as addressing the effect of the discriminator's conduct rather than the reason for that conduct would severely undermine that intended harmony.

65    Sklavos has been cited subsequently in the context of s 5(2) of the DDA in a number of first instance decisions of this Court.

66    In Varasdi, O'Callaghan J struck out a claim which pleaded s 5(2) direct discrimination in relevantly the following manner:

70.    The failure to provide Mimi with the [reasonable adjustments] herein a safe environment and protection from bullying/teasing/assault had the effect that Mimi was, because of the [disabilities], treated less favourably than students:

(a)    without disabilities or without Mimi's disabilities;

(b)    who were being subjected to bullying, teasing and assault;

[etc]

would be treated, being circumstances not materially different.

…

72.    The reasonable adjustments were not provided because of Mimi's disabilities.

67    His Honour referred to Sklavos, including [30] of the Sklavos reasons which is extracted above, and observed that there must be a causal nexus between the alleged failures to provide reasonable adjustments and the aggrieved person's disability. His Honour continued:

[34]    It is not sufficient to assert that something is a reasonable adjustment and allege, without more, that it was not provided. The paragraphs comprising the Eleventh Allegation do no more than that. They cannot therefore be allowed on that ground alone.

…

[36]    Paragraph [67] also pleads that the applicant was not provided with the reasonable adjustments set out in paragraph [66.4]. However, even if the applicant could, contrary to the respondent's case, make good the allegation that it provided none of the measures identified, and that they are capable of being characterised as reasonable adjustments under the DDA, the proposed amended pleading does not otherwise plead that the applicant's disability was a reason for the alleged failure to provide these measures.

[37]    Paragraph [72] says that '[t]he reasonable adjustments were not provided due to and/or because of [the applicant's] disabilities'. However, no particulars or material facts are relied on. The mere assertion of causation cannot establish causation. Paragraph [71], which posits the situation of a student without disability, likewise does not provide the missing links.

68    In Connor v State of Queensland (Department of Education and Training) (No 3) [2020] FCA 455, Rangiah J said:

[264]    The statement of claim refers to the 'supports' alleged to have not been provided. Assuming that the 'supports' are intended to refer to 'reasonable adjustments' that should have been made, there is no pleading that their non-provision had the effect that Beau was treated less favourably because of his disability. However, since Beau is no longer legally represented, I will treat the statement of claim as making such an allegation.

[265]    For the purposes of s 5(2) of the DDA, it is necessary to consider:

(1)    Whether the aggrieved person has, because of his or her disability, been treated less favourably than a person without that disability would be treated in circumstances that are the same or not materially different.

(2)    Whether the alleged discriminator did not make the reasonable adjustments for the aggrieved person that are alleged not to have been made.

(3)    Whether there is a causal nexus between the alleged failure to provide reasonable adjustments and the aggrieved person's disability.

(4)    Whether the failure to make the reasonable adjustments has had the effect that the aggrieved person was treated less favourably because of his or her disability.

(5)    Where pleaded by the alleged discriminator, whether the adjustments alleged not to have been made were 'reasonable adjustments'.

69    More recently, Abraham J in Gordon at [20] said, in the context of causation, that 'the disability must be a basis or reason for the conduct of the discriminator', citing Sklavos at [23].

70    It is apparent from both Varasdi and Connor that whilst it was appropriate to plead the effect of the failure to provide reasonable adjustments, the Court also stipulated, by reference to Sklavos, that a causal nexus between the alleged failure to provide reasonable adjustments and the aggrieved person's disability was an element of the claim.

Causation – application

71    It is apparent, on review of the relevant part of 3FASOC (see reference to para 67 at [54] above) that the pleading is similar to that in Varasdi and suffers from the same deficiency, in that the applicant does not plead why the disability was a reason for the alleged failure to provide the pleaded measures. The applicant in this case does not even purport to address it in the shorthand manner of para 72 of the proposed statement of claim found to be deficient at [37] of Varasdi.

72    The State submitted that, having regard to the authorities, in order to disclose a reasonable cause of action under s 5(2) of the DDA, an applicant must plead that the reasonable adjustments were not provided by the State because of the applicant's disabilities. The State submitted that the proposed pleading does not satisfy the necessary causal nexus between the conduct of the alleged discriminator and the less favourable treatment required in a pleading of direct discrimination, and should be struck out. The State submitted that the construction affirmed in Sklavos remains the current state of the law and that as a single judge I would follow it.

73    The applicant, on the other hand, contended that it was open on Sklavos, but not necessary, to plead that the applicant's disability was the basis for the failure to provide reasonable adjustments.

74    The applicant's argument appears to rest on reading [30] of Sklavos in isolation, and focussing on the following words:

This is because on the face of the terms of the provision, an issue is raised as to whether the causation question is directed to the reason for the discriminator's failure to make the reasonable adjustment or to the reason for the less favourable treatment which results or to both of those matters.

(emphasis added)

75    The difficulty with the submission is that it ignores the manner in which Bromberg J proceeded to further examine the rationale for the inclusion of s 5(2) and his Honour's conclusion that even though there might be an inquiry into the effect of there being no reasonable adjustments for the aggrieved person, the same causation question as required by s 5(1) still applies in relation to s 5(2) (at [38]) and the conclusion his Honour expressed in [40] and [43]. On that basis, I do not consider that it is sufficient to plead the effect without also pleading the reason for less favourable treatment. The current pleading at para 67 does not go far enough to meet what is required by Sklavos.

76    In the alternative, the applicant contended that Sklavos was incorrectly decided and I should not follow it, and submitted that leave to amend should be granted so that there is a 'proper vehicle before the Court' for a submission that the reasons in Sklavos introduce a gloss on the statutory text.

77    I accept, as the State accepted, that Sklavos poses a high hurdle for an applicant. It might be that at some point the construction of s 5(2) of the DDA is revisited (although I note that special leave to appeal to the High Court from Sklavos was refused on the basis that it was not a suitable vehicle for consideration of s 5 of the DDA). I acknowledge that Sklavos has been criticised by commentators, particularly by N Rees, S Rice and D Allen in Australian Anti-Discrimination & Equal Opportunity Law (2018, Federation Press, 3rd Edition) at [7.6.29]-[7.6.30]. The authors suggest that urgent amendment to the DDA is required.

78    However, I consider the authorities, including Varasdi and Connor, reflect a consistent understanding of the construction of s 5(2) and how the Full Court decision in Sklavos is to be understood and applied. In those circumstances, as a single judge of this Court, I follow that approach: Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [75]; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [135]; Liberty Mutual Insurance Co Australian Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126 at [45]; and Hill v Zuda Pty Ltd [2022] HCA 21; (2022) 275 CLR 24 at [25]-[26].

79    As a result, I refuse leave to amend the statement of claim as currently proposed by paras 52-68 of the 3FASOC. In addition to the particular issues with the pleaded reasonable adjustments addressed above, the causation issue affects the education services direct discrimination claim in those paragraphs as a whole.

80    The applicant may revise the proposed pleading and seek leave to further replead. There may be a manner in which the applicant is able to plead his case that reveals the causative link that is required. A further example of this pleading issue is commented upon by Snaden J in Bickle v State of Victoria (Victoria Police) [2020] FCA 168 at [33].

Conclusion as to first issue

81    It follows that leave is refused to file the 3FASOC in its current form.

Second issue – other services – direct discrimination – services within meaning of the DDA

82    As noted above, Division 2 of the DDA is headed 'Discrimination in other areas'.

Statutory framework

83    Section 24 falls within Division 2, and provides:

24    Goods, services and facilities

It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability:

(a)    by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or

(b)    in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c)    in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

84    Neither 'goods' nor 'facilities' are defined in the DDA.

85    Section 4 provides a definition of 'services':

services includes:

(a)    services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance; or

(b)    services relating to entertainment, recreation or refreshment; or

(c)    services relating to transport or travel; or

(d)    services relating to telecommunications; or

(e)    services of the kind provided by the members of any profession or trade; or

(f)    services of the kind provided by a government, a government authority or a local government body.

The pleaded case

86    The applicant pleads that during the period of detention, the State provided detainees of Banksia Hill with certain goods, services and facilities (para 85 3FASOC), being:

(a)    food;

(b)    bedding;

(c)    reading and writing material;

(d)    health care services;

(e)    welfare services;

(f)    rehabilitative services and skills, health and behavioural programs;

(g)    facilities for fresh air and exercise; and

(h)    facilities for socialising with other detainees.

Particulars to (d) and (f) (programs and services) are given.

87    The applicant pleads that the State caused him to be placed in Harding or Cue as a result of his behaviour which was a manifestation of his mental health and cognitive disabilities, or was caused or contributed to by those disabilities, or was caused by the State's failure to provide treatment for those disabilities (para 86).

88    The applicant pleads (para 87) that while he was detained in Harding or Cue, the State:

(a)    did not provide him with food as a means of punishing him;

(b)    removed bedding supplied to him as a means of punishing him;

(c)    did not provide him with reading or writing material;

(d)    did not provide a therapeutic or confidential space in which counselling sessions could be conducted;

(e)    did not provide him with regular access to culturally appropriate programs or health care services, welfare services, rehabilitative services and skills, health and behavioural programs (as particularised);

(f)    provided him with only limited access to facilities for fresh air and exercise, by confining him to his cell for periods of up to 23 hours per day; and

(g)    did not permit him to socialise with other detainees.

89    The applicant pleads that by reason of those matters, and by reason of his mental health and cognitive disabilities, the State treated him less favourably than a child detained in Banksia Hill without such disabilities in circumstances that were not materially different (para 88). He pleads the State did so by refusing to provide the pleaded goods, services or facilities or by the manner in which it did so.

90    The applicant pleads that in those circumstances the State engaged in unlawful discrimination under s 24(a) and/or s 24(c) of the DDA.

91    The State's principal submission was that the goods, services and facilities pleaded are not properly described as such. The essence of its written submissions was that none of the pleaded matters can be considered a good, service or facility for the purpose of s 24 where their provision is part and parcel of a statutory duty.

92    It submitted that the State's relationship to the applicant is in the context of his detention in a correctional facility operated by the State in accordance with the Young Offenders Act 1994 (WA) and the Young Offenders Regulations 1995 (WA). It submitted that each of the pleaded matters in para 85 of 3FASOC are clearly 'part and parcel of the exercise of a statutory duty' and matters 'so closely connected to, so as to be an inherent part of, detention that they are not capable of meeting the statutory definition'. It asserts that it would be an 'unreasonable or unnatural reading' of the DDA to accept that the matters pleaded were goods, services and facilities.

Authorities on 'services'

93    The State's use of the expression 'unreasonable or unnatural reading' is a reference to the High Court's statement in IW v City of Perth (1997) 191 CLR 1 at 11 (Brennan CJ and McHugh J), when considering an analogous provision of the Equal Opportunity Act (WA):

… beneficial and remedial legislation, like the [Equal Opportunity] Act, is to be given a liberal construction. It is to be given 'a fair, large and liberal' interpretation rather than one which is 'literal or technical'. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.

94    In IW, the High Court considered the meaning of 'services' in the context of a discrimination claim, brought on behalf of a group of people with AIDS which had been denied planning approval for a drop-in centre. It was alleged that they had been discriminated against by the council's planning decision, and the question arose as to whether a council engaged in planning decision was engaged in the provision of services.

95    Whilst clearly fact dependent, the decision in IW discloses differing opinions as to how 'services' was to be understood. Brennan CJ and McHugh J said (at 11, 17) that a council considering planning approvals is not engaged in the provision of a service, while acknowledging that the word is to be given a wide meaning. Dawson and Gaudron JJ (at 23-24) also endorsed a wide approach to its meaning, however considered that the council did provide a service, but that it needed to be properly identified. They identified it as 'the exercise of a discretion to grant or withhold planning approval' and considered that when properly identified, it was apparent that the council had not failed to provide such a service. A discretion had been exercised, albeit that the association was unsuccessful. Gummow J (at 44) considered there was no reason 'in logic or good sense' to deny the proposition that the council may be engaged in the provision of service to those who invoke its power, but found that the council had not failed to provide the relevant service. Toohey J in dissent on the services point agreed that the council provided a service, but considered that it was to be identified more broadly, so as to include not just considering but disposing of an application. His Honour considered that there may be discrimination in the manner of refusal (at 28). Kirby J, also in dissent, concluded that the word 'service' was to be understood widely enough to encompass the association's submissions (at 75).

96    The potential for differing views as revealed in IW and the focus on factual findings in informing and defining a 'service' is important context. This was highlighted in the line of authorities involving Mr Rainsford, to which both the applicant and the State referred extensively. Mr Rainsford brought claims arising out of a period when he was serving a sentence of imprisonment. His claims related to transport that he undertook between various prisons and courts, and a period of detention in a solitary confinement unit of the prison. Mr Rainsford had a back injury and claimed he was discriminated against in respect of that injury because he was unable to properly stretch or exercise his back during transport or whilst in the unit. Accordingly, the question of the meaning of services came to be considered in the context of corrective services.

97    There are relevantly three Rainsford decisions. The first is James Rainsford v State of Victoria [2005] FCAFC 163; (2005) 144 FCR 279 (Hill, Finn and Kenny) (Rainsford First FC), in which the Full Court ordered the remittal of Mr Rainsford's claim, having found that the Federal Court Magistrate had erred in determining separate questions in the absence of agreed facts or findings of fact. In that context, Kenny J, with whom Finn and Hill JJ agreed, said at [55]:

In addition to the management and security of prisons, the purposes of the Corrections Act 1986 (Vic) include provision for the welfare of offenders. The custodial regime that governs prisoners under this Act is compatible with the provision of services to them: see, for example, s 47. Indeed, this proposition is fortified by the provisions of the Agreement to which counsel for Mr Rainsford referred on the hearing of the appeal (see [21]). In discharging their statutory duties and functions and exercising their powers with respect to the management and security of prisons, the respondents were also providing services to prisoners. The fact that prisoners were unable to provide for themselves because of their imprisonment meant that they were dependent in all aspects of their daily living on the provision of services by the respondents. Although the provision of transport and accommodation would ordinarily constitute the provision of services, whether the acts relied on by Mr Rainsford will constitute services for the DDA will depend upon the findings of fact, which are yet to be made and, in particular, the identification of the acts that are said to constitute such services.

98    The decision on the remittal is Rainsford v Victoria [2007] FCA 1059; (2007) 167 FCR 1 (Rainsford TJ) (Sundberg J). His Honour considered the meaning of 'services' in s 24(1)(c) of the DDA and the application of IW. There was a great deal of factual evidence about both Mr Rainsford's injury, the method and options relating to transport of prisoners and the design of the unit.

99    As to applicable principles, Sundberg J observed on the basis of IW that not all government functions are services, but some undoubtedly are (at [72]). His Honour accepted that whether the relevant act involves helpful or beneficial activity is a useful test, but qualified that proposition by adding that the question is whether the act is helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs (at [73]).

100    His Honour also said at [79]:

Attending to the welfare of prisoners is an important legal obligation placed on both respondents. This is all the more so given the vulnerabilities of prisoners who are unable to do much to control their circumstances within prisons. It is for this reason that I accept that certain facilities provided by the respondents to prisoners may constitute services for the purposes of the DDA.

101    His Honour referred to Waters v Public Transport Corporation (1991) 173 CLR 349, citing a passage from McHugh J's reasons (at 404-405 of Waters) to the effect that what is sufficiently precise identification of the service in one case may be too general in another.

102    His Honour rejected the manner in which Mr Rainsford had purported to identify the activities, and reframed them in his reasons as first, the transportation of prisoners between prisons and between a prison and court and, second, the accommodation of prisoners in cells within the prison system, concluding (at [76]) that:

This is the appropriate level of precision with which to identify the alleged services. So identified, I am of the view that neither constitutes a service for the purpose of the DDA.

103    His Honour said:

[77]    At [74] I postulated what would have happened had no transport been available to prisoners. The question is entirely hypothetical since transport is an inherent part of incarceration. Prisoners on remand must attend court for their hearings. Prisoners in low-security prisons who are reclassified must be moved to higher-security prisons. The prison system simply could not function without prison transport. It is an artificial use of the word service to apply it to a fundamental integer of a system over which those affected have no or almost no control.

[78]    The accommodation of prisoners in cells within the prison system is similarly an inherent part of incarceration. Prisoners must be housed somewhere within the prison system and that this is so demonstrates that for a prisoner to have a cell is not a helpful or beneficial activity so far as the prisoner is concerned. Insofar as there is choice in the allocation of prison cells, it is a purely administrative and prison management matter. It does not, of itself, provide prisoners with a benefit. Rather, it is better described as being 'part and parcel of the exercise of a statutory duty and cannot be described as the provision of a service or services', to adopt the words of Underwood J in Secretary of the Department of Justice and Industrial Relations v Anti-Discrimination Commissioner (2003) 11 Tas R 324 at 341.

104    His Honour also noted that there was no relevant difference in the particular case in describing the activities as a service or a facility (and I note that nothing seems to turn on this distinction for the purpose of the current application).

105    Although these findings were sufficient to dismiss the claim, his Honour went on to consider other aspects of Mr Rainsford's claim, holding that, in relation to both Mr Rainsford's transport to and from prison and his accommodation in the unit, no requirements or conditions with which Mr Rainsford was not able to comply were imposed by the respondents, thereby failing to bring the respondents' conduct within the definition of indirect disability discrimination provided in s 6 of the DDA. Further, if conditions or requirements were imposed, they were reasonable in the circumstances, having regard to the risk of self-harm to prisoners travelling in prison transportation vehicles or when detained in the unit (at [87], [90], [96]-[97).

106    The third in the line of cases is the appeal from this decision: Rainsford v State of Victoria [2008] FCAFC 31; (2008) 167 FCR 26 (Tamberlin, North and Mansfield JJ) (Rainsford Second FC). The Full Court upheld the findings of the primary judge that the requirements of the State as to the transport and isolation of Mr Rainsford were reasonable in the circumstances. Having reached this view, it was unnecessary to determine the interpretation of 'services'. The Court said at [9]:

We observe that, although the meaning of 'service' is not simple to resolve, and the matter was not argued in depth, we see some strength in the view that the provision of transport and accommodation, even in a prison, may amount to a service or facility.

107    Whilst properly described as obiter dicta of an intermediate appellate court, a trial judge would ordinarily be expected to give great weight to such an observation: Hill v Zuda at [26].

Application in this case

108    Turning to this proceeding, both the applicant and the State referred to the Rainsford decisions extensively. Further, both referred to decisions of Tribunals that post-date the Rainsford decisions, each finding support for their respective arguments in different decisions.

109    For example, the State annexed a schedule to its written submissions of some nine cases before Tribunals involving police custody or detention in a corrective facility (none dealing with the State legislation with which I am concerned). Whilst I am not bound by those decisions, I have reviewed each of them. In the end there are (unsurprisingly) statutory and factual differences that limit any persuasive value. There are examples of strike out applications where parts were struck out and parts were considered arguable. For example, in Charles v State of Victoria (Corrections Victoria) (Human Rights) [2015] VCAT 375, some activities were not considered beneficial (e.g. urine testing, change in security status) whereas others were considered arguably services (e.g. medical treatment, opportunity to provide volunteer services, control of lost property). Many cases involved self-represented applicants where it could not be said that the Tribunal had the benefit of well-informed submissions from all parties before it.

110    Further, the cases do not consider some of the types of services that the applicant in this matter refers to, such as rehabilitation programs including Aboriginal mentoring programs, the YMCA Way to Work readiness program and the Healthy Relationships program. Arguably, these might more readily fall within the meaning of a service than some of those discussed in, for example, Charles. I acknowledge that in Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84 the Tribunal did not consider an Adult Sex Offenders Program to be a service, but its reasons are somewhat limited. On the other hand, in Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308, where the Tribunal considered the meaning of 'services' in the relevantly similar Anti-Discrimination Act 1977 (NSW), it was accepted that services and programs provided pursuant to express powers under cl 60(1) of the Crimes (Administration of Sentences) Regulation 2001 (NSW) were all capable of being characterised as 'services'. Those services and programs were described in cl 60(2) as including welfare services, alcohol and other drug counselling services, psychological counselling services, education and vocational training programs, pre-release and post-release programs, and sports and recreational activities. The Tribunal also considered that the 'better view' was that varying the classification of inmates, or considering whether the classification of inmates should be varied, could also be characterised as 'services'.

111    This brief review of Tribunal decisions highlights the risks involved in considering the content of 'services' for the purpose of this application on a summary basis. The particular legislative framework is important. The facts are important. Outcomes are properly open to debate. Reasoning by analogy with these Tribunal decisions is not helpful.

112    I do not consider that the State's 'services' argument is such that leave to amend should be refused in relation to the matters listed in para 85 of 3FASOC. There are a number of matters that I take into account in this regard:

(a)    the definition of 'services' in s 4 of the DDA is inclusive;

(b)    as remedial legislation, the DDA is to be construed liberally and beneficially, as observed in IW;

(c)    Rainsford TJ does not stand for the proposition that there is a dichotomy between anything provided in discharge of a statutory duty or function and a service under s 24 of the DDA;

(d)    nor could it stand for that proposition in light of IW, particularly noting Gummow J's observation that in discharging statutory duties and functions in the public interest, a body may also be engaged in the provision of services to particular individuals;

(e)    indeed, in Rainsford TJ Sundberg J allowed for the potential that certain facilities provided to prisoners may constitute services for the purposes of the DDA;

(f)    even as to the matters addressed in Rainsford TJ (transportation and accommodation), the obiter dicta in Rainsford Second FC cannot be ignored – as a trial judge I should give it great weight, and more particularly so in the context of an interlocutory application;

(g)    therefore, contrary to the State's submission, it is not enough to ask whether the activities pleaded were an inherent part of incarceration, and thus are limited by what was said at [78] of Rainsford TJ;

(h)    it follows that I do not accept its submission that is unreasonable or unnatural to interpret 'services' in s 24 of the DDA in a manner that encompasses matters that fall within the ambit of the discharge of statutory duties;

(i)    it is necessary to carefully consider the functions being exercised by the State and under which legislation, regulation or guideline;

(j)    it is necessary and appropriate to consider whether those functions are beneficial to inmates and capable of being characterised as services;

(k)    the touchstone for a service is whether the act is helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs;

(l)    the identification of the relevant service or services in a particular case is a question of fact and there are limits on the analogies that might be drawn where factual circumstances may differ;

(m)    great care is needed in identifying the meaning of services absent factual findings, as Rainsford First FC indicates; and

(n)    these matters are best elucidated in this proceeding by a pleaded case (including a defence).

113    Accordingly, I would grant leave to the applicant to amend his pleading to include such claims. I would not have struck out those claims, were they already pleaded. There is an argument that can be put reasonably and responsibly that the activities constituted services provided to detainees by the State whilst incarcerated at Banksia Hill. Without a proper consideration of the nature of the duties and obligations of the State and consideration of the facts applicable to the provision of each activity, I am not satisfied that the applicant would have no reasonable prospect of success in establishing that some (even if not all) of the activities listed fall within the meaning of goods, services or facilities. Once it is accepted, having regard to the obiter dicta in Rainsford Second FC, that there is doubt about the narrow approach in Rainsford TJ, then a number of important questions open up and must be considered, primarily as to the particular nature of the activities and whether they are beneficial to inmates.

114    I have considered whether I should descend into addressing each and every item listed in para 85 and its particulars, but have formed the view that it is not appropriate for me to do so absent sufficient factual context as to the usual circumstances of the provision or supply of the claimed items and the circumstances where they might be withheld. I do not have any such analysis or supporting facts at present. I accept, however, that some of the items on their face are more likely to be considered services, and more likely to be considered beneficial to inmates, than others. There remains work to be done by the applicant in particularising aspects of his 'goods, services and facilities' claim.

A further issue

115    Finally, I note that the State raised a new argument in oral argument about the services claim, impugning proposed para 87 of the 3FASOC. The submission was to the effect that assuming that the matters in para 85 were permitted to stand, then the applicant's pleading in para 87 that the goods or services were refused or their provision was limited 'masks detail that must be addressed'. Senior counsel for the State submitted that the pleader identified a 'refusal' to provide but did not identify any request or any obligation to provide the matters referred to, and that there is a tension between pleading that the State refused to do something but then complaining about how it was done.

116    There is some merit in the matters raised by the State in relation to para 88. In the circumstances, and the matters having been raised late, the sensible course is for the applicant to replead para 88 having regard to what has been put against him, and to provide particulars or clarification of the claim as appropriate. Indeed, counsel for the applicant appeared to accept that (at least) further particulars should be provided, and also accepted that the use of the word 'refuse' might be ambiguous in the circumstances. I would not grant leave for para 88 to stand in its current form, but the applicant may (with leave) file a revised version.

Third issue – s 9(1) RDA

117    Turning to the RDA claims, s 9(1) of the RDA provides that:

9    Racial discrimination to be unlawful

(1)    It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

118    The applicant pleads at paras 91A-91G of the 3FASOC that during a period when he was confined in 2017 he asked permission to attend NAIDOC week celebrations at Banksia Hill. Permission was refused. The relevant officers told the applicant words to the effect that 'everyone else is going to be there'. The applicant pleads that no non-Aboriginal persons were denied access to those or other significant cultural celebrations, and that he was subjected to humiliation and embarrassment as one of two Aboriginal people who were denied permission to attend. The applicant pleads that the refusal to permit him to attend the NAIDOC week celebrations was on the basis of his Aboriginality. In particulars of the plea, it is said that excluding an Aboriginal person from Aboriginal cultural celebrations necessarily has a disproportionate impact and is effective as a punishment 'precisely because the person is Aboriginal'.

119    The State asserts that the pleading fails to disclose a reasonable cause of action. It submitted that s 9(1) requires a causative link – that is, that the alleged exclusion was based on the applicant's Aboriginality, and if the applicant relies on inference for such link, then the basis for the inference must be pleaded.

120    In Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba (No 2) [2020] FCAFC 39; (2020) 275 FCR 669 (McKerracher, Rangiah and Charlesworth JJ) the Full Court considered the construction of s 9(1) of the RDA. The primary judge had admitted evidence of the respondent's chief executive officer to the effect that the relevant act (assessing eligibility to vote on resolutions on the basis that entry on the electoral role, and not merely holding native title rights, qualified a person to vote) was not made because of Aboriginality. The Full Court held that whilst it was not necessary to prove subjective motivation to exclude a person based on race, the existence of such subjective motivation may well be relevant in inferring the reason for the asserted act. The appeal was accordingly dismissed. However, the Full Court (at [28]) relevantly endorsed the following summary from the primary judge's reasons (Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1092 at [17] (White J)):

(a)    the provision should be interpreted broadly and beneficially in accordance with the fundamental purpose of the Convention to which it gives effect: Baird [Baird v State of Queensland [2006] FCAFC 162; (2006) 156 FCR 451] at [60];

(b)    at its heart, the expression 'any act involving a distinction, exclusion, restriction or preference' connotes a difference in treatment based on one or more of the stated characteristics: Gerhardy v Brown [1985] HCA 11, (1985) 159 CLR 70 at 118, 127-8 (Brennan J); Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [38] and, on appeal [2001] FCA 123; (2001) 105 FCR 56 at [29];

(c)    although s 9(1) involves inherently elements of comparison, it does not require the identification of a particular comparator: Baird at [63]; Qantas Airways Limited v Gama [2008] FCAFC 69, (2008) 167 FCR 537 at [76]; Griffıths v Minister for Lands, Planning and Environment [2008] HCA 20, (2008) 235 CLR 232 at [7]; Wotton v State of Queensland (No 5) [2016] FCA 1457 at [559]-[560];

(d)    a motive or intention to discriminate is not an element of a contravention; Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56, (1989) 168 CLR 165 at 176; Waters v Public Transport Corporation [1991] HCA 49, (1991) 173 CLR 349 at 360; Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8 at 33-34, 40-41, although their presence may be evidence that the conduct was engaged in for the proscribed purpose;

(e)    the operation of s 9 is not confined to acts undertaken pursuant to an obligation to do those acts: Baird at [62], Shurat HaDin, Israel Law Centre v Lynch (No 2) [2014] FCA 413 at [91];

(f)    it is the act involving the distinction which must be based on race: Baird at [71];

(g)    the term 'based on' does not connote a relationship of cause and effect, whether in a 'but for' or in any other sense. It signifies that the discrimination must be 'on' racial grounds: Gerhardy v Brown at 81(Gibbs CJ). In Macedonian Teachers' Association at 27, Weinberg J said:

[The] expression ['based on'] does not, of itself, suggest a relationship of cause and effect. It suggests rather a relationship of a different and broader kind. The links between the elements connected by this expression must, no doubt, be real and tangible, but not necessarily causal in nature. To ask whether the manner in which the complainant was treated is in any way referable to his race, colour, descent or national or ethnic origin is not necessarily to ask whether these characteristics 'caused' the impugned conduct.

This reasoning was endorsed on appeal: Victoria v Macedonian Teachers'Association of Victoria Inc [1999] FCA 1287; (1999) 91 FCR 47 at [8] and by the Full Court in Bropho v Western Australia [2008] FCAFC 100, (2008) 169 FCR 59 at [67]-[68]. It means that there must be an examination of the actual basis for the conduct, by considering the matters on which the conduct did turn: Wotton at [551]; and

(h)    there must be a close relationship between the designated characteristic and impugned conduct: Macedonian Teachers' Association at 33.

121    Further, the Full Court in Barngarla concluded as follows:

[47]    … Argument on the appeal in connection with the proper construction of the phrase 'based on' did serve to illuminate the meaning of the phrase beyond that given in the cases to which the primary judge referred. As Weinberg J said in Macedonian Teachers'Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 at 33:

The requirement is one of sufficient connection. That there must be a close relationship between the designated characteristic and the impugned conduct is not in doubt - it is the nature of that relationship which is critical.

[48]    For the disposition of the appeal, it is sufficient to emphasise that to prove a contravention of s 9(1) of the RD Act it is not necessary to prove the existence of a subjective motivation to (for example) exclude the complainant based on his or her race. But that is not to say that the subjective motivations of the alleged contravener are irrelevant. Whilst the absence of a subjective motivation will not be determinative, proof of the existence of a subjective motivation to discriminate may point to a conclusion that the relevant act involved an exclusion based on race.

[49]    Expressed another way, proof of an intention to discriminate against a person by reason of his or her race will invariably support a contention that the act complained of was based on race. In cases where the act complained of is in the nature of a decision, it will be permissible to consider the matters upon which the decision turned. An analysis of those matters may disclose that the act was done by reference to race, even if there be no subjective motivation to discriminate on that basis. As Allsop J (as he then was) said in Baird v Queensland (2006) 156 FCR 451 (at [70]):

… One does not look at the act divorced from the relevant distinction etc in assessing the relationship with race. It is the part of the act that is the distinction etc or the act involving the distinction that must be based on race.

122    These passages reveal the difficulty with the State's causation argument, which proceeds on the basis of identification of a specific causal link, a threshold higher than the authorities require. What the applicant must relevantly establish at trial is that the act was done by reference to race – that it was referable to it, and not that it was caused by it in a 'but for' sense.

123    Further, the discussion in Barngarla makes clear the Court may proceed on the basis of inference. This means there must be an examination of the actual basis for the conduct, but that basis may be inferred from the relevant circumstances, including the conduct of the parties. In this case there is no doubt that the matters relied upon by the applicant in the (currently) pleaded case are minimal, in terms of purportedly providing the basis for the drawing of an inference. He relies on a number of facts at present, being: the statement to the effect that 'everyone else' was granted permission to attend; that he was denied permission and is Aboriginal; that no non-Aboriginal person was denied permission; and that the denial of permission was a form of punishment that had a heightened effect on an Aboriginal person and was used on the basis that he was Aboriginal. It may be that at trial these matters, assuming they are proven, are an insufficient or an inappropriate basis to persuade the Court that the relevant inference should be drawn, but I do not agree with the State's submission that such a plea, if permitted, would be struck out. It cannot properly be said that there is no reasonable cause of action disclosed. The applicant is in the difficult position that it may not be possible for him to provide further information which might support his case pending completion of discovery. However, I am satisfied that there is sufficient basis pleaded for the State to know the allegation brought against it. I consider it is in a position to plead in response to the claim made. The claim is not an abuse of process but should be considered in the context of the facts and circumstances as disclosed at trial. It gives rise to an arguable cause of action that the applicant, in contrast to all non-Aboriginal detainees who might be subjected to punishment, was denied permission to attend, and such denial was on the basis of his race, in that there was a real and tangible link between the denial of permission, its effect on him and his Aboriginality.

Fourth issue – s 13 RDA

124    The applicant pleads further that the same conduct relating to his exclusion from NAIDOC week celebrations amounted to unlawful discrimination in the provision of an identified service (facilitating attendance of cultural celebrations) under s 13(a) of the RDA. That section provides:

13    Provision of goods and services

It is unlawful for a person who supplies goods or services to the public or to any section of the public:

(a)    to refuse or fail on demand to supply those goods or services to another person; or

…

by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.

125    The State largely repeated its causation argument relied upon for the third issue, here asserting that the phrase 'by reason of' requires a specific causative link. Its submissions in this regard were brief. In my view, the Court should fully consider the facts and legal submissions as to what (if anything) flows from the different language used in s 9(1) and s 13 of the RDA and the nuances of the pleaded case. In any event, there is sufficient foundation given so that the State is on notice of the claim brought against it and the inferences the applicant asks the Court to draw. I do not suggest the applicant's case as pleaded is straightforward or compelling – but there is enough information provided, having regard to the applicable principles, to allow the pleading to stand.

126    The State also relies on similar arguments as to the scope and meaning of 'services' that I have addressed in the context of the DDA. For similar reasons, the applicant should be permitted to pursue this claim. The applicant will have leave to amend his pleading to include this claim. Whether the opportunity to participate in cultural events provided to detainees is a 'service' should be addressed having regard to the facts, and not struck out at this interlocutory stage.

127    It follows that the applicant's application for leave to plead the RDA matters as set out in the 3FASOC is allowed.

Other

128    During the hearing counsel for the applicant took me to a number of other proposed amendments in the latest iteration of the 3FASOC, each of which had been agreed or were uncontentious, following the conferral process between counsel. Leave is granted to rely on those parts of the 3FASOC. I also note that the State did not pursue a summary judgment application in relation to the RDA claims. I also formally note that more generally the State did not oppose the applicant having leave to replead in the event that parts of the 3FASOC were struck out.

Orders

129    The parties should consider the respective applications and these reasons and provide a joint minute of proposed orders to chambers that records those parts of the 3FASOC for which leave to file and serve is granted and those parts where it is refused. The State's strike out and summary judgment applications in the circumstances should be dismissed. I will hear the parties as to costs in due course.

Associate:

Dated:    31 January 2025