Ali v State of Queensland [2013] QCAT 319

CITATION: Ali v State of Queensland [2013] QCAT 319 PARTIES: Raymond Akhta Ali (Applicant) v State of Queensland (Respondent) APPLICATION NUMBER: ADL088-10 MATTER TYPE: Discrimination matters HEARING DATE: 22, 23 and 24 April, 2013 HEARD AT: Brisbane DECISION OF: Member Ann Fitzpatrick DELIVERED ON: 6 August, 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The Respondent State of Queensland pay compensation in the sum of $3,000.00 to be dealt with in accordance with Chapter 6 Part 12B of the Corrective Services Act 2006. CATCHWORDS: Direct and indirect discrimination – religious belief or activity – family responsibilities – transfer to another correctional centre away from family – Muslim prisoner – provision of Halal meat. Anti-Discrimination Act 1991, ss 10, 11 Corrective Services Act 2006, ss 20,68, 319G, 319H, 319I, 478D, Chapter 6 Part 12B. Mahommed v State of Queensland [2006] QADT 21 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Raymond Akhtar Ali represented by Mr Peter Nesbitt RESPONDENT: Counsel instructed by Crown Law, for the respondent. -- 1 of 16 -- 2 REASONS FOR DECISION Background [1] Mr Ali, the applicant, is serving a term of life imprisonment. He lodged complaints that he had been discriminated against, with the Anti- Discrimination Commission of Queensland, on the grounds of family responsibilities and religious belief or religious activity. [2] Mr Ali asserted that his transfer from Wolston Correctional Centre (Wolston) to Maryborough Correctional Centre (Maryborough) on 22 September, 2008 discriminated against him because: (a) he was unable to provide the same level of care and support for his wife and son; (b) Halal meals were not made available to him; and (c) he was unable to participate in group prayers on Fridays. [3] The complaints were accepted and ultimately referred to the Queensland Civil and Administrative Tribunal. Subsequently Mr Ali also complained that after he commenced a Halal diet at Maryborough, he was provided with pies, dim sims and pasties which were not Halal and that on the day of his departure from Maryborough he was provided with a ham sandwich in the reception store area. The new allegations were treated by the Tribunal as forming part of the original complaint. After some objection, the respondent said that it did not object to the new allegations being heard at the same time as the hearing of the Complaint referred to the Tribunal. In particular it said that the applicant had exhausted the internal complaint process established under Chapter 6 Part 12A of the Corrective Services Act 2006 at the time Mr Ali asked the Tribunal to deal with the new allegations. [4] Accordingly all these allegations were dealt with at the hearing. The Applicant’s evidence [5] Mr Ali gave evidence by telephone from Wolston and remained on the line throughout the hearing. He was represented by Mr Peter Nesbitt, who is not a lawyer. The hearing room was vacated whenever Mr Nesbitt and Mr Ali indicated they wished to confer. [6] Mr Ali relied upon his affidavits sworn 22 February, 2012 (up to paragraph 17 only, the balance of which was agreed to be struck from the material) and his affidavit sworn 15 June, 2011, filed 20 June, 2011. Although a good deal of other material has been filed by Mr Ali, these were the only affidavits relied upon. These were exhibits 1 and 2 respectively in the proceedings. [7] Included as an attachment to Mr Ali’s 15 June, 2011 affidavit is a copy of an IOMS (Integrated Offender Management Strategy) record headed -- 2 of 16 -- 3 “Security Classification and Placement” which was marked Exhibit 3 in the proceedings. [8] Also included as an attachment to the 15 June, 2011 affidavit is a statement of Mr Ali’s wife, Bronwyn Jennifer Ali, which was marked exhibit 4 in the proceedings. Mrs Ali attended the hearing to give evidence. [9] Finally, the 15 June, 2011 affidavit attaches an affidavit of Robert Dylan Tolson, prisoner, sworn 31 May, 2011. The affidavit was marked exhibit 5 in the proceedings. Mr Tolson was not called to give evidence. It was agreed that his evidence would need to be assessed as to weight. [10] The evidence of Mr Ali is usefully summarised in the respondent’s final submissions, being: (a) Mr Ali was transferred to Maryborough on the basis of “false allegations”’ In oral evidence Mr Ali confirmed Friday prayers did not occur at WCC subsequent to his departure from WCC); (b) following his transfer to Maryborough on 22 September, 2008, he was no longer able to have daily contact with his wife and son, having called them in the morning and afternoon whilst at WCC; (c) following his transfer to Maryborough, he was no longer able to have regular fortnightly visits from his wife and son; (d) transfer to Maryborough stopped him from participating in Friday prayers, which was available at Wolston. (In oral evidence Mr Ali confirmed Friday prayers did not occur at Wolston subsequent to his departure from Wolston) (e) there was no Imam who visited Maryborough. (In oral evidence Mr Ali said that he elected not to pursue the availability of a Bundaberg based Imam. Further, when placed at Brisbane Correctional Centre, he dispensed with visits from an Imam who could visit that Centre); (f) at Maryborough he was not able to eat meat as Maryborough did not provide Halal meals to him between 22 September, 2008 and 23 January, 2009; (g) Mr Ali received Halal meals after 23 January, 2009 at Maryborough but says that some of the Halal meals provided were not actually Halal; including certain commercially manufactured pies, dim sims and pasties; (h) on the day of his departure from Maryborough he was provided with a ham sandwich in the reception store area. After raising this with the officer in charge, stating that he could not eat it as he was a Muslim, he was told words to the effect that nobody had told the offer in charge and that he could take the ham out of the roll and eat the salad on the roll. [11] Mrs Ali’s evidence was to the effect that she and her son were placed under considerable emotional strain through not being able to visit her husband as had been their habit on a fortnightly basis. She said -- 3 of 16 -- 4 that she could not afford to travel to Maryborough to see Mr Ali because of the cost, her son’s study timetable and available time to do so given her work. [12] Mrs Ali, agreed that regular telephone contact continued whilst Mr Ali was at Maryborough. [13] I have given no weight to the evidence of Mr Tolhurst on the basis that he was not called for cross examination. The respondent’s evidence [14] The respondent called a large number of witnesses to rebut Mr Ali’s allegations. Transfer to MCC [15] Scott Collins who as at September, 2008 was the General Manager of Wolston gave evidence consistent with his statement, dated 24 August, 2011. In summary, his evidence is that he recommended the transfer of Mr Ali out of Wolston because of an allegation he was involved in bringing contraband drugs, pornography and alcohol into the prison. The allegation was viewed as very serious. [16] Mr Collins evidence is that the orderly management of the prison dictated that Mr Ali should be removed from Wolston whilst an investigation was carried out because of the possibility Mr Ali may have been manipulating and standing over staff to bring in contraband. Mr Collins said he not prepared to put staff at risk at a time when other officers were alleged to have been involved in the issue. Mr Collins said that for the sake of the good order and safety of the correctional centre he adopted a zero tolerance approach to such conduct and considered he had to act to ensure a deterrent effect on both officers and prisoners who may consider bringing contraband into the prison. Two other prisoners alleged to be involved were moved to Woodford Correctional Centre and to the Arthur Gorrie Correctional Centre. Those prisoners were moved before Mr Ali. That meant that the closest high security prison with protective custody accommodation into which Mr Ali could be moved was Maryborough. [17] Mr Collins said under cross examination that he did not consider Mr Ali’s cultural and family ties before the transfer was recommended. However he said that he received a written request from Mr Ali to reconsider the transfer prior to him being moved and he told Mr Ali that he would give it consideration in a period of 6 months. His view was that the need to maintain good order and security at the prison outweighed Mr Ali’s family circumstances. [18] He also agreed under cross examination that by October, 2008 it was clear that allegation against Mr Ali was unsubstantiated. [19] Ms Kate Holman, the then General Manager, Custodial Operations, was responsible for the decision to transfer Mr Ali to MCC. She gave evidence consistent with her statement of 24 August, 2011, that she -- 4 of 16 -- 5 accepted Mr Collins recommendation based on the need to ensure the safety of Mr Ali and the good order and security of Wolston. [20] She said that placement options in South East Queensland were limited to Wolston or Maryborough given the need to ensure high security and protective custody for Mr Ali. [21] Ms Holman said that she was aware of Mr Ali’s family circumstances but considered the need to ensure his safety took precedence over his family circumstances, especially as she had no way of knowing when the investigation into the matter would be completed. [22] Ms Holman later responded to Mr Ali’s request to be transferred back to Brisbane so that his family could visit him. In May, 2009 she arranged a special placement for him at Brisbane Correctional Centre, which does not normally take permanent placements. [23] In relation to Mr Ali’s contact with his family whilst at Maryborough, Mr Lakshman, the Manager, Business Services at Maryborough attached a telephone record to his statement which reveals that Mr Ali made an average of one to two calls to his family, each day he was at Maryborough for a 5 or 6 minute period. [24] Mr Noonan, Manager Centre Services at Maryborough gave evidence that visiting times for the Centre were Saturday 1.15pm to 2.45 pm and Sunday 8.30 am to 10am and 10.30 am to 12.00pm. Free buses provided transport from the Maryborough CBD to the Centre. Lack of Friday prayers and Imam visits to MCC [25] Darren Ball, then Manager, Offender Development at Maryborough gave evidence consistent with his statement dated 22 August, 2011. Mr Ball was responsible for managing religious visits at the Centre. He said that he did not recall receiving a request from Mr Ali to have a religious visit, nor did he receive any complaints from him that he was unable to receive a visit from an Imam whilst at Maryborough. He said that in the absence of such a request the Centre would not independently make arrangements for such a visit. Halal meals [26] The respondent admits that Mr Ali was provided with a vegetarian diet for the period from 22 September, 2008 until 23 January, 2009. However its evidence is that a Halal meal was always available during Mr Ali’s time at Maryborough and it was only through inadvertence that Halal meals were not provided from the time of his admission to MCC. [27] Mr Boyer, then employed as a nurse at Maryborough, gave evidence that on the date of admission he completed a special diet request form during an interview with Mr Ali, noting that Mr Ali requested a Halal diet. He noted the request under the cultural/religious section of the special diet request form. That Form appears to have been mislaid. It has not been located by the respondent. Mr Boyer knew that Halal meals could be provided. -- 5 of 16 -- 6 [28] Ms Gloria Wilson’s statement records that she was then employed as a nurse at Maryborough. She recorded in the medical section of a form completed by her on 24 September, 2008, that Mr Ali required “vegetarian” “in lieu of moslem halal”. She has no recollection of events or completing the form. She denies telling Mr Ali that Halal diets were not available at MCC. She says that she was aware Halal diets were available. She was not required for cross-examination. [29] That form was signed off by Mr Hilton Simmonds, the Nurse Unit Manager at Maryborough. His evidence is that a request for a Halal diet should not have been completed under the “medical” section of the form, but should have been completed under the “cultural/religious” section of the form, so that the request could be investigated and actioned. He said he knew Halal diets were available and did not tell Mr Ali they were not, nor did he tell Dr Baudoeuf, the Centre’s Visiting Medical Officer, that they were not. He did not check or query the form. [30] The form was then signed off by Dr Baudoeuf. Dr Baudoeuf says that she did not know a Halal diet was available but thought that a vegetarian diet was the closest substitute. She thought Mr Simmonds had told her this was the case. [31] Ms May the General Manager of Maryborough approved the vegetarian diet. In evidence she acknowledged that an error had occurred and that she should have followed up why Mr Ali was not receiving a Halal diet when it was available to him. Ms May said that if she had received a request for Halal meals it would have been approved. [32] The evidence of Mr Darren Ball, then and currently, Manager, Offender Development at MCC goes to the process which should have occurred to ensure Mr Ali received Halal meals. His statement records that during the initial reception of a prisoner he will be asked if he has previously been in receipt of an approved religious diet. A request for a cultural or religious diet is passed onto him as Manager on a form printed out by an officer and sent to him by the prisoner. It is then passed onto the Food Services Supervisor and investigated by Mr Ball to confirm that it is appropriate. His investigations include checking the IOMS to see if the diet matches up with the offender’s identified religion. Mr Ball said an offender can request a special diet at any time and there are processes to support the request. He said he has never rejected a request for a cultural or religious diet. [33] Mr Ball’s statement reveals that he notes the 24 September, 2008 form records the special diet request under “Medical”, not “Cultural /Religious”. He believes the reason the form may not have come to him is because the diet request was filled out under the medical section. He keeps all cultural and religious request forms, but is unable to find any earlier special diet request form in relation to Mr Ali. Provision of meals that were allegedly not Halal after 22 January, 2009 -- 6 of 16 -- 7 [34] Mr Kubler, the then Food Services Supervisor at Maryborough gave evidence that some 120 out of 470 prisoners were in receipt of a special diet. At the time 4 Muslim prisoners were receiving a Halal diet. His evidence is that at all relevant times, the kitchen maintained a record of what meals are to be provided and a register of who is to receive what meal. All fresh meat, except pork or pork products supplied to Maryborough is Halal certified. Substitutes are provided when non Halal certified meals are served. [35] With respect to commercially prepared pies, dim sims and pasties Mr Kubler agrees that they were not Halal certified and that substitutes created in the kitchen using Halal certified meat were provided in containers marked with the prisoner’s name. [36] The trade instructors who assisted in the kitchen, Mr McAuliffe, Mr Craddock and Mr Lowe supported this evidence and were not cross examined. [37] Their evidence is that if for some reason a non Halal meal was received by Mr Ali, he could request a substitute, but no request was ever received. [38] Mr Claffey, then a Unit Officer at Maryborough confirms that Mr Ali raised concerns with him as to whether meat served at the Centre was Halal certified. Mr Claffey made enquiries of Mr Kubler and assured Mr Ali that it was. Mr Ali also raised concerns as to whether meat pies provided to him were Halal, again Mr Claffey made enquiries of Mr Kubler who told him all meals served were Halal. Mr Claffey cannot recall any complaints about dim sims or pasties. [39] Similar evidence of complaint about pies, dim sims and pasties was given by Mr Speers, Custodial Correctional Officer who made enquiries for Mr Ali and was told the food was Halal. Provision of ham sandwich in the reception centre on 6 May, 2009 [40] With respect to this allegation, Mr Bazan, the supervisor of the reception stores who was on duty on 6 May, 2009, has no recall of receiving any complaint from Mr Ali about the sandwich provided to him. He did not recall telling Mr Ali to eat the sandwich without the ham. He says that if he had received a complaint it would have been easy to seek a replacement sandwich from the kitchen. Mr Kubler confirmed that was the case. Mr Ali’s submissions [41] Mr Ali’s concluding submissions are founded on a belief that he was transferred from Wolston as a result of false accusations by a correctional officer for the purpose of covering up that officer’s activities, the result being that there was a severe impact on Mr Ali and his family through their inability to visit him at Maryborough, that he was refused a right to practice his faith by virtue of the respondent’s refusal to provide the appropriate dietary requirements as determined by his faith as a Muslim. -- 7 of 16 -- 8 [42] Mr Ali submits that he made Nurse Boyer aware of his religious requirement for Halal meals and that was noted on a Form never presented to the Tribunal and that no real steps were taken to accommodate his request other than to provide a vegetarian diet. [43] Mr Ali points to the fact that the then General Manager Ms May admitted an error with respect to the provision of an appropriate diet for Mr Ali and that based on her evidence and the evidence of Mr Kubler, it was apparent Halal meals were available for Mr Ali, but he was never told this was the case. [44] Mr Ali submits that because he was not advised of the availability of a Halal diet other than a vegetarian diet, he has suffered indirect discrimination by virtue of the unreasonableness of the Respondent’s actions. He relies upon the decision of Mahommed v State of Queensland1as a precedent with application to his circumstances, in that Mr Mahommed was found to have been discriminated against through being forced to eat general prison fare when he was a Muslim. [45] Finally, Mr Ali records a fear that the circumstances giving rise to his transfer to Maryborough may negatively impact on his application for release on a parole order. I do not intend to address this issue as it arises out of facts not dealt with in this hearing. Legal framework [46] Before considering the respondent’s submissions it is useful to consider the statutory framework within which Mr Ali’s complaints must be assessed. [47] Mr Ali appears to rely only on an allegation of indirect discrimination because he considers his treatment by the respondent was unreasonable. [48] For completeness and because the respondent has sought to address both direct and indirect discrimination with respect to each of the complaints, I will do so too. [49] The Queensland Anti-Discrimination Act 1991 (ADA) prohibits direct and indirect discrimination on the basis of a number of attributes a person may have, including religious belief or activity and family responsibilities. [50] In Mr Ali’s case, the effect of Section 10 of the ADA is that direct discrimination will have occurred if:  in the same circumstances;  he is treated less favourably than a person who has no family responsibilities or particular religious beliefs; and  that treatment is based on his family responsibilities or beliefs as a Muslim. 1 [2006] QADT 21. -- 8 of 16 -- 9 [51] Indirect discrimination has a different focus. The intent of section 11 of the ADA is to prevent the operation of a condition or requirement, which appears on its face to be neutral and applied equally to all people, but in fact has an adverse impact on people like Mr Ali who have family responsibilities or particular religious beliefs. [52] It is not sufficient to demonstrate that Mr Ali has family responsibilities or that he is a Muslim and that he has suffered adversely because of a requirement imposed on him by the respondent. [53] Section 11 of the ADA requires that: (a) a term or condition that has been imposed on Mr Ali be identified; (b) Mr Ali demonstrates he cannot comply with the term because of his family responsibilities or Muslim beliefs; and (c) he demonstrates a higher proportion of people without family responsibilities or Muslim beliefs could comply with the term; (d) the term is not reasonable. In this regard, the onus falls on the respondent to demonstrate that the term is reasonable in all the circumstances. [54] The other relevant legislation is the Corrective Services Act 2006. That legislation provides at section 20 (1)(b) for a power to give directions for “the security or good order of a corrective services facility” and at section 68 for a right to transfer a prisoner to another corrective services facility. [55] Finally, the complaints made about provision of non-Halal meals after 22 January, 2009 are caught by sections 319G, 319H and 319I of the Corrective Services Act 2006, as they fall after the date of commencement of Chapter 6, part 12A of that Act. By section 478D of the Act the complaints which precede the date of commencement of the Chapter 6 Part 12A on 7 November, 2008, are not affected by those sections of the Act, other than section 319I((1)(4) and (5). [56] Section 319G provides that the respondent will not have directly discriminated against an offender if its treatment of the offender was reasonable. The respondent is obliged to prove that its treatment was reasonable. The Tribunal is required to consider any relevant submissions made about the question of reasonableness. [57] Similarly, the Act provides at section 319H that in considering whether a term imposed on an offender results in indirect discrimination and whether the term is reasonable the Tribunal is obliged to consider any relevant submissions. [58] The matters on which submissions may be made for both sections and which the Tribunal is required to consider include: (a) the security and good order of any corrective services facility at the relevant time; -- 9 of 16 -- 10 (b) the cost, disruption and administrative and operational burden of imposing alternative treatment or an alternative term; (c) budget and resource constraints; (d) whether the treatment or term meets the needs of the offender; (e) the need to respect the offender’s dignity; (f) whether the treatment or term unfairly prejudices other offenders. The respondent’s submissions and findings Transfer to Maryborough Correctional Centre [59] The respondent submits in relation to the transfer to Maryborough that there was no direct discrimination, because: (a) Mr Ali was transferred not because of his religious beliefs or family responsibilities, but because of a perceived threat to the security and good order of Wolston and a perceived threat to the safety of Mr Ali; and (b) in any event it is not conceded that Mr Ali had family responsibilities such as to amount to an attribute under the ADA. [60] As to indirect discrimination the respondent submits that Mr Ali has not identified the term he alleges was imposed on him. The respondent submits that if there was a term, which is denied then it would be that persons alleged to be involved in bringing contraband into Wolston be transferred to other available correctional centres. [61] The respondent says that Mr Ali could comply with the term and that he was able to maintain contact with his family by telephone and that visits were available which his wife and son could have taken advantage of if they had wished. [62] The respondent says that Mr Ali did not have the attribute of family responsibilities and that he has not put forward any evidence to suggest that a higher proportion of people without the attribute comply or are able to comply with the term. [63] Finally, it says that such a term is reasonable given the security concerns that existed in relation to Mr Ali remaining at Wolston and the need for high security protective custody. Findings [64] I accept the evidence of the respondent’s witnesses Mr Collins and Ms Holman who were responsible for the recommendation and decision to transfer Mr Ali to Maryborough that their overriding concern was for the security and good order of the correctional centre and the security of Mr Ali, once allegations of involvement in bringing prohibited items into the prison were aired. Mr Ali himself submitted that the reason for his transfer was because of a false accusation by a correctional officer. -- 10 of 16 -- 11 [65] I find that section 10 of the ADA is not satisfied. I find that Mr Ali was not transferred to Maryborough because of his religious beliefs or because of his family responsibilities. [66] Further, I agree with the respondent’s submissions that family responsibilities must mean a responsibility to provide tangible physical or financial care and support to a dependent child or member of the immediate family in need of care or support. [67] In the context of a person in prison they could never provide tangible, physical or financial care and support to family. Their care and support must always be of a moral or emotional nature within the constraints of visits and phone calls. Accordingly, I find that Mr Ali did not have the relevant attribute of family responsibilities. [68] As to indirect discrimination, I agree that Mr Ali has not nominated the term he was unable to comply with. [69] In a decision made by the then Anti-Discrimination Commissioner, dated 31 March, 2009, Ms Booth found the term in question was that Mr Ali be incarcerated at Maryborough. I think that is a reasonable formulation of the term and reflects what was in fact imposed on Mr Ali and the basis of his complaint. [70] The fact is that Mr Ali did comply with the term because he was transferred to Maryborough through the exercise of a discretion by the respondent, authorised by s68 of the Corrective Services Act 2006. [71] The ADA speaks of an inability to comply with a term imposed on a person because of their family responsibilities. In the context of someone made to comply with a term, the question must be whether compliance came at an unreasonable cost to his family responsibilities. The reality is that Mr Ali’s family responsibilities were curtailed to merely intangible care and support upon his incarceration. I doubt that this type of care and support was intended to be protected by the ADA. [72] In any event, I accept the evidence of the respondent’s witnesses as to the availability of visits and assistance given to families to reach the correctional centre through free bus travel from Maryborough and the twice daily phone calls made by Mr Ali. On the basis of that evidence I find that the level of care and support which Mr Ali could exercise in favour of his family could be maintained by him from Maryborough. I find that if Mrs Ali and her son did not attempt to visit Mr Ali whilst he was in Maryborough, it was a choice they made for their own convenience, not because it was made impossible for them. I find that Mr Ali made twice daily phone calls to his family in fulfilment of his responsibilities. [73] Having made a finding that Mr Ali was able to comply with the term that he transfer to MCC without sacrificing his family responsibilities, it is not necessary to consider further the other limbs of section 11 of the ADA with respect to the proportion of people without the attribute -- 11 of 16 -- 12 of family responsibilities who could comply with the term. In any event Mr Ali made no submissions in this regard. [74] Finally, as to whether the term was reasonable, I find that it was reasonable. I accept the evidence of Mr Collins and Ms Holman as to the priority given to the security and good order of a correctional centre, the need to protect Mr Ali’s safety and the limited options available given the need to locate him in protective custody. Lack of Friday prayers and Imam visits to MCC [75] The respondent submits that Mr Ali was not treated less favourably by the lack of Friday prayers and Imam visits to MCC for the purpose of section 10 of the ADA, nor was there any term imposed on Mr Ali for the purpose of section 11 of the ADA. Findings [76] I accept the evidence of Mr Ball that religious visits could be arranged if requested by a prisoner, however no request for a religious visitor were made and no complaints were made by Mr Ali. I note as pointed out by the respondent that on Mr Ali’s oral evidence, he elected to not pursue the availability of a Bundaberg based Imam, Friday prayers did not occur after he left Wolston and he dispensed with visits from an Imam at Brisbane Correctional Centre. [77] On the basis of this evidence I find as submitted by the respondent that there was no direct discrimination of Mr Ali and no term imposed on him that could result in indirect discrimination under the ADA. Halal Meals [78] The respondent submits that Halal meals were always available at Maryborough and the only reason Mr Ali was not provided with Halal meals was as a result of a mistake in completing the relevant forms upon reception of Mr Ali at Maryborough. The respondent says that failure to provide Halal meals was not based on Mr Ali’s religious beliefs but rather only because of a mistake. Accordingly there can be no direct discrimination. [79] The respondent submits that there was no term imposed on Mr Ali, in that there was no proscription or prohibition imposed on the provision of Halal meals prior to January, 2009. Accordingly it submits that there could be no indirect discrimination under the ADA. Findings [80] I accept the evidence of Mr Ali that he was told by the medical staff upon his reception at MCC that no Halal meals were available to him and that he therefore requested vegetarian meals as an appropriate substitute. [81] I find the evidence credible because the first form which should have been completed on the day of reception and which apparently recorded a request for a Halal diet, cannot be located to verify that is what it did record. In any event it appears never to have been sent to the relevant officer or acted upon. The only form acted upon is the -- 12 of 16 -- 13 special diet request form, dated 24 September, 2008, which bore the words “Vegetarian” “lieu Moslem Halal”. Those words were written by Ms Wilson. To have recorded “lieu Moslem Halal” suggests strongly that a Muslim diet was discussed and a decision made to substitute a vegetarian meal. Ms Wilson’s evidence throws no light on why the notation was made because she says that she has no recollection of Mr Ali nor any conversation with him. Despite this lack of recollection, she nevertheless feels able to say that she did not tell Mr Ali that Halal diets were not available and did not suggest a substitute. That internal conflict in Ms Wilson’s evidence does not reassure me that Mr Ali was not told that a Halal diet was not available and that he would have to substitute a vegetarian diet. [82] It appears from his evidence that Mr Simmonds the Nurse Unit Manager merely signed off on the diet request as part of processing the form. He had no contact with Mr Ali. [83] Dr Baudoeuf signed the request for a special diet but did not request the diet, nor did she question it. On her evidence there would be no reason to question the vegetarian diet in lieu of Halal as it accorded with her recollection that Mr Simmonds had told her a vegetarian diet was the closest substitute that Maryborough could provide to offenders who request a Halal diet. She did not know that a Halal diet was available. [84] The respondent acknowledges in its final submissions that Mr Ali was not provided with a Halal diet because of “a misunderstanding as to what diet was available and, subsequently, as to what diet was sought to be approved.” I find that a Halal diet was not provided because the diet request was not recorded in the cultural/religious part of the form, so that the usual checks were not made and the form fell into the hands of the Doctor who had no reason to check what was plainly a cultural or religious reason for requesting a vegetarian diet. By the same token, no-one else in the chain responsible for approval of the request checked the information on the form and followed up the reasons for the diet request. Mr Simmonds and Ms May appear to have merely signed the form without reading it. Whatever the basis of the failure to provide a Halal diet, whether mistake, misunderstanding or ineptitude, the result has been that because of his religious beliefs Mr Ali has been forced to eat a vegetarian diet. [85] I consider the matter is consistent with the analysis of similar circumstances discussed in Mahommed v State of Queensland2. In that case President Dalton SC of the Anti-Discrimination Tribunal considered a claim by Mr Mahommed, a Muslim who was unable to obtain a Halal diet in prison. The case pre-dated the general availability of Halal diets in Queensland Correctional Centres. [86] President Dalton said: “…when Mr Mahommed was simply provided with general fare, the matter is to be analysed in terms of the 2 Ibid at paragraph 20. -- 13 of 16 -- 14 definition of indirect discrimination. However, after Mr Mahommed complained, he was no longer treated in a facially neutral way. He was treated differently to the general run of prisoners and treated differently because of his religious beliefs or religious activity. In my view the correct approach is to analyse what went on during these periods of time in terms of the definition of direct discrimination. Had Mr Mahommed been put on a vegetarian diet, with or without tinned Halal meat, from his first day in gaol, because of his religious beliefs or activity, his case would have been analysed in terms of the definition of direct discrimination – that is, differential treatment on the basis of religious beliefs or activity…” [87] Consistent with Mahommed’s case, I find that Mr Ali was directly discriminated against on the basis of his religious beliefs, because he was provided with a vegetarian diet, when he in fact ate meat as an ordinary part of his diet. That was less favourable treatment, because of his religious beliefs, than other meat eating prisoners at Maryborough, who were not Muslim but required a special diet (such as diabetic prisoners), whose circumstances are the same in that they are all incarcerated at Maryborough. The evidence of Mr Kubler was that a large number of prisoners were accommodated with special diets. [88] I also think Mr Ali’s circumstances are amenable to an analysis on the basis of indirect discrimination. I find that through the errors of the respondent a term was imposed on Mr Ali that he not be provided with a Halal diet. I find that Mr Ali was not able to comply with that term other than by eating a vegetarian diet. I have no evidence from the parties, but based on the smaller number of Muslim prisoners than non-Muslim prisoners, I find as a matter of common sense that a higher proportion of people without Mulsim beliefs would be able to eat a non-Halal diet. Based on Mr Kubler’s evidence that 4 prisoners were receiving a Halal diet, I conclude that there were approximately 4 of the 470 prisoners at Maryborough who were Muslim. Finally, I find that the term was unreasonable, because a Halal diet was available. It was also unreasonable because it forced a person who otherwise ate meat as part of his diet to eat a vegetarian diet. I find that Mr Ali was also indirectly discriminated against. Provision of meals that were allegedly not Halal after 22 January, 2009 [89] I accept the evidence of Mr Ali that he was provided with non-Halal pies, dim sims and pasties from time to time when these items formed part of the general prison diet. [90] I accept the evidence of the respondent’s witnesses that substitute prison kitchen prepared meals should have been provided to Mr Ali, that the kitchen is set up to do so and did in fact prepare the substitutes. [91] It is possible that other prisoners took the substitute meals or there was some other problem which occurred in the delivery of the substitutes. No evidence was given as to what could have gone -- 14 of 16 -- 15 wrong in the delivery of the appropriate food items to Mr Ali. However, the prospect exists that something did go wrong in the provision of substitute meals to Mr Ali. [92] I accept Mr Ali’s evidence because his evidence of complaint about the food items is corroborated by the prison officers, Mr Claffey and Mr Speers, who made enquiries for him. The evidence of Mr Claffey and Mr Speers is that they were told the food was Halal. Mr Ali’s complaints and requests did not result in the provision of a substitute meal as Mr Kubler suggested should have occurred. [93] Accepting Mr Ali’s evidence does not mean that I must disbelieve the evidence of the respondent’s witnesses. I do not. I consider there was miscommunication between the prison officers and the kitchen staff and that the kitchen staff did not check that Mr Ali was receiving the meals they prepared for him when the complaint was raised. Finding [94] The upshot is that Mr Ali was forced to eat general prison fare as a result of error or misunderstanding. It does not matter that he could have received Halal food, if in fact he did not, despite raising the issue with the respondent. [95] The situation is again analogous to Mahommed’s case. I do not think this issue is amenable to a direct discrimination analysis. I do not think Mr Ali was asked to eat the non-Halal food because of his religious beliefs. However, I consider there has been indirect discrimination, because the respondent imposed a term that Mr Ali eat the food given to him. He was unable to comply because of his religious beliefs. On the basis of common sense I find that a higher proportion of non -Muslim prisoners could eat the food in question, because it was an acceptable part of their diet. I find the imposition of the term to be unreasonable, given that Halal food was available and could have been provided if someone from the kitchen had taken the care to check what food was in fact given to Mr Ali. Ham Sandwich on 6 May, 2009 [96] I accept the evidence of Mr Ali that he was given a ham sandwich for lunch before leaving Maryborough and that he was not offered a substitute upon making a complaint that he was unable to eat the sandwich. I accept his evidence because the officer in charge of the reception area on the day did not give evidence that Mr Ali did not complain about the ham sandwich. Mr Bazan’s evidence was that he did not recall any complaint. On this basis there is no reason to disbelieve Mr Ali, who gave evidence in a forthright way. Finding [97] Again, it does not assist the respondent that Mr Ali could have been provided with a substitute sandwich if he was not provided with a substitute upon making a complaint. [98] I find that the respondent imposed a term that Mr Ali eat the general prison fare, that the majority of the prison population could eat the -- 15 of 16 -- 16 ham sandwich and that the imposition of such a term was unreasonable given that it was the policy of the Maryborough kitchen to provide a substitute upon request. Compensation [99] On the basis that I have found the respondent discriminated against Mr Ali in requiring him to eat a vegetarian diet for the period from 24 September, 2008 to 22 January, 2009, Mr Ali is entitled to an award of compensation. Mr Ali left the quantum of any award to the discretion of the Tribunal. [100] The respondent submitted that this matter was analogous to the decision in Mahommed’s case where an award of $2,000.00 was made. That award reflected a period of only one month which the President was able to assess, given that earlier periods were out of time for consideration. [101] I award Mr Ali the sum of $3,000.00 by way of compensation for the discrimination he was subjected to by being required to eat a vegetarian diet for a period of 4 months. [102] I make no award of compensation in relation to the provision to him of non-Halal pies, dim sims and pasties on some occasions after 22 January, 2009 and the provision of ham sandwich on his last day at Maryborough. [103] The respondent has referred me to s319I(2)(a) of the Corrective Services Act 2006 which requires that a finding of bad faith must be made before an order for compensation can be made with respect to the remaining complaints. [104] I have made no finding of bad faith against the respondent and its witnesses. I find that it did not intend to discriminate in any malicious way so as to amount to bad faith, but did so through mistake and misunderstanding. [105] Section 319I (4) of the Corrective Services Act 2006 applies to the Orders I intend to make with respect to the findings of contravention of the ADA, the subject of complaint before 7 November, 2008. The section provides that if the Tribunal decides to make a compensation order it cannot require that payment of an amount of compensation or interest on an amount of compensation, be paid directly to the offender; and the order has effect as an award of compensation only for Part 12B of the Act (which deals with the Victim trust funds); and the offender has no property or interest in the compensation. [106] Accordingly, I order that the respondent pay compensation in the sum of $3,000.00 to be dealt with in accordance with Chapter 6 Part 12B of the Corrective Services Act 2006. -- 16 of 16 --