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Feature Articles

Cite as: (2008) 82(10) LIJ, p. 50

Federal anti-discrimination laws prohibit discrimination in the provision of services, but can a prison provide a service? Recent hearings appear not to have settled the matter.

By Frances Simmons

Can a prison provide a “service” to a prisoner? When will performing a government function involve providing a “service” for the purposes of anti-discrimination law?

These questions were considered in Rainsford v Victoria1 (Rainsford) where Sundberg J decided that the accommodation and transport of prisoners were not “services” for the purposes of the Disability Discrimination Act 1992 (Cth) (the DDA).

In dismissing an appeal against the decision of Sundberg J, the Full Federal Court found it was unnecessary to determine whether prison accommodation and transport can provide a “service” to prisoners. However, in obiter the Court left the door open for future courts to take a broader approach to the issue of what constitutes a “service” than that of Sundberg J.2

This article considers the challenges of defining a “service” in light of the decision in Rainsford.

What constitutes a service?

Federal anti-discrimination laws prohibit discrimination in the provision of services.3 The DDA defines services to include “services of the kind provided by a government, a government authority or a local government body”.4

The question of what governmental activity will constitute a service was considered by the High Court in IW v City of Perth5 in the context of Perth City Council’s decision to reject an application for town planning approval for a centre for people with HIV.

The members of the High Court took different approaches to the question of whether the council was providing a service and, if it was, how that service should be identified.6 However, they agreed that in some cases the performance of statutory duties may also amount to a “service” to a particular individual.7

In subsequent cases, the courts have held:

  • the provision of additional superannuation benefits under Retirement Benefits Regulations was a service;8
  • a regulatory impact statement prepared by the federal Attorney-General for Cabinet in relation to a disability standard was not a service;9 and
  • the alteration of a person’s sex on birth registration was a service.10

These decisions show that the question of whether government activity amounts to a service will depend on the facts of the case and, in particular, whether the activity in question is beneficial.

Conferring benefits?

Whether the activities said to be services conferred benefits on the applicant was the critical issue in Rainsford.

Mr Rainsford alleged that the state of Victoria indirectly discriminated against him while he was in prison, in breach of s24(1)(c) of the DDA. This section prohibits discrimination on the ground of disability “in the manner in which the goods and services are provided or facilities made available to the person”. The test for indirect discrimination is set out in s6 of the DDA.

Mr Rainsford, who had injured his back before he was incarcerated, alleged that the state of Victoria:

  • required him to travel in prison vans for up to two hours without the opportunity to stretch and exercise his back; and
  • placed him in a separation cell for nine days in conditions which aggravated his back injury.

Complex proceedings

The proceedings brought by Mr Rainsford have a complex history. In 2004, Raphael FM concluded that the respondents had not provided a “service” to Mr Rainsford within the meaning of s24 of the DDA.11 In doing so, his Honour concluded (at 118) that the performance of a statutory duty where no discretionary element exists is not a “service” within the meaning of s24 of the DDA.

The Full Federal Court allowed the appeal against the decision of Raphael FM on procedural grounds.12 However, in relation to the issue of whether the acts complained of amounted to services, Kenny J (with whom Hill and Finn JJ agreed) observed in obiter (at 296) that Raphael FM “erroneously relied on a distinction that he drew between the provision of services pursuant to a statutory discretion and the situation . . . where no discretionary element exists”. Her Honour continued:

“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, s47. Indeed this proposition is fortified by the provision of the Prison Services Agreement to which counsel for Mr Rainsford referred on the hearing of the appeal. 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.” (at 296)

Her Honour added that “[a]lthough the provision of transport and accommodation would ordinarily constitute the provision of services”, the question whether the acts complained of by Mr Rainsford constituted services would depend on the findings of fact and the identification of the acts said to be services.

The Full Federal Court remitted the matter to the Federal Magistrates Court where it was transferred to the Federal Court and heard by Sundberg J.

The decision of Sundberg J

Sundberg J rejected the applicant’s submissions that the relevant service was “prison management and control”.13 Instead, the alleged services had to be more precisely identified as the transport of prisoners and the accommodation of prisoners in cells within the prison system (at [76]).

Sundberg J held that neither the transport of prisoners between prisons nor the accommodation of prisoners in cells within the prison system constituted “services” or the “making available of a facility” for the purposes of s24(1)(c) of the DDA.14

His Honour confirmed (at [80]) that IW v City of Perth was authority for the following general propositions:

  • not all government functions are services, although some undoubtedly are;
  • the way in which the service is identified is critical; and
  • the question whether a particular act constitutes a service will be a question of fact in each case.

Sundberg J held (at [80]) that in determining whether an act constitutes a service it is necessary to show that the act in question is helpful or beneficial to the class of persons to which the person alleging the discrimination belongs. In this case, the correct question was whether the respondents provided a service for the benefit of the prisoners. The fact that maintaining a prison system provides a service for the benefit of the general public was not the point.

Sundberg J rejected Mr Rainsford’s submission that if a prisoner were not provided with a cell and transport he would have to survive in the elements and walk between prisons, observing (at [74]) that:

  • if Mr Rainsford were not placed in the separation cell he would have remained in the general body of Port Phillip Prison, which could “hardly be said to be beneficial”;
  • the lack of transport would be both helpful and unhelpful: prisoners would be unable to access medical facilities at other prisons but they would also be unable to be transported from court back to prison.

His Honour added (at [77]–[78]) that speculating about what might happen if prisoners were denied accommodation or transport was “entirely hypothetical” because both these activities were an “inherent part of incarceration”. The prison system could not function without transport or accommodation. Therefore, it was “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”.

His Honour characterised the choice exercised by the respondent in allocating prison cells as a “purely administrative and prison management matter” which did not, of itself, provide prisoners with a benefit. The alleged services were better described as “part and parcel of the exercise of a statutory duty and can not be described as the provision of a service or services” (at [78]).15 Mr Rainsford’s claims were therefore rejected because he had not been provided with a “service” within the meaning of the DDA.

In case a contrary view was taken on the issues of services, Sundberg J wnt on to consider whether the acts Mr Rainsford complained of amounted to indirect discrimination within the meaning of s6 of the DDA. His Honour held (at [82]–[102]) that none of the matters complained of met the test of indirect discrimination because there was no requirement or condition imposed on Mr Rainsford that he could not reasonably comply with.

Appeal to the Full Federal Court dismissed

The Full Federal Court dismissed an appeal against the decision of Sundberg J.16 The Court agreed with Sundberg J that there was no requirement or condition that Mr Rainsford accept transport or accommodation that did not cater for his disability. The Court held that Sundberg J had correctly identified that:

  • the relevant requirement imposed for prison transport was that any prisoner who was medically unfit for regular transport must get a medical certificate before alternative arrangements would be made;17 and
  • the relevant requirement imposed in the provision of accommodation was that Mr Rainsford take steps to demonstrate that he was medically unfit for his cell.18

Section 6 of the DDA provides that indirect discrimination on the ground of a disability of the aggrieved person occurs if the discriminator requires the aggrieved person to comply with a requirement or condition “(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply”.

The Court held (at [17], [22]) that the requirements imposed on Mr Rainsford were reasonable in the circumstances and therefore did not constitute indirect discrimination under s6 of the DDA.

Having dismissed the appeal on this basis, the Court considered it was unnecessary to decide whether Sundberg J erred in his interpretation of what is a “service” within the meaning of s24 of the DDA. However, the Court did observe, in obiter (at [9]), that while the issue was not argued in depth, there was “some strength in the view that the provision of transport and accommodation, even in a prison, may amount to a service or facility”.

Comment

If future courts favour the interpretation of services adopted by Sundberg J it may have significant implications for people who are, in the words of Kenny J, “dependent in all aspects of their daily living” on the state.

The question whether acts constitute a service will ultimately depend on findings of fact. However, it is difficult to reconcile Sundberg J’s statement that it is artificial to describe “a fundamental integer of a system over which those affected have no or almost no control”19 as a service with the earlier obiter of Kenny J.20

The comments of Kenny J appear to support the view that the fact an act is a fundamental part of discharging a statutory duty to provide for people who are unable to provide for themselves should not, of itself, preclude a finding that the act is also a service.

The discharge of a statutory duty may meet obligations owed to the public and simultaneously provide a service to a particular individual.21 Given the remedial character of the DDA it is well-established that the word “service” should receive a broad and purposive construction.22

The obiter of the Full Federal Court on appeal from the decision of Sundberg J suggests that the circumstances in which a prison may be regarded as the provider of a “service” will be the subject of further legal argument.

Significantly, in Rainsford Sundberg J found both the applicant and the respondent mischaracterised the relevant “service” (at [84]). While Rainsford does not definitively resolve the question of when a prison can provide a “service” to a prisoner, it does demonstrate the critical importance of precisely identifying the alleged service and the benefit which the activity in question confers on the complainant.


FRANCES SIMMONS is a lawyer at the Human Rights and Equal Opportunity Commission. A shorter version of this article was published in the NSW Law Society Journal in March 2008. The article has now been updated to include the decision of the Full Federal Court.

1. [2007] FCA 1059. See http://www.austlii.edu.au/au/cases/cth/federal_ct/2007/1059.html.

2. Rainsford v Victoria (2008) FCR 26, 29 [9].

3. See Disability Discrimination Act 1992 (Cth) (DDA), s24; Sex Discrimination Act 1984 (Cth) (SDA), s22; Racial Discrimination Act 1975 (Cth) (RDA) s13; Age Discrimination Act 2004 (Cth) (ADA) s22.

4. See s4(1)(f) of the DDA. There are identical provisions in the SDA and the ADA.

5. (1997) 191 CLR 1.

6. For further consideration of this case see the Human Rights and Equal Opportunity Commission publication Federal Discrimination Law 2008: http://www.humanrights.gov.au/legal/FDL/index.html, pp232-233.

7. McHugh J and Brennan CJ at [13] and Gummow J at [43]-[44] noted that a government body or official performing a statutory duty had also been found to be performing a service in Attorney-General (Canada) v Cumming [1980] 2 Canada Federal Court Reports 122 and Savjani v Inland Revenue Commissioners [1981] QB 458.

8. Australian Education Union v HREOC (1997) 80 FCR 46, 56 (Merkel J).

9. Vintila v Federal Attorney-General [2001] FMCA 110.

10. AB v Registrar of Births, Deaths and Marriages (2006) FCA 1071, [62] (Heerey J). On appeal, Kenny J (with whom Gyles J agreed) did not consider whether this aspect of Heerey J’s decision was correct: AB v Registrar of Births Deaths and Marriages (2007) 162 FCR 528, 560 (Kenny J; Gyles J agreeing). Black CJ at 537-538 considered that the alteration of a person’s sex on their birth registration is a service.

11. Rainsford v Victoria (2004) 184 FLR 110.

12. Rainsford v Victoria (2005) 144 FCR 279. The appeal was upheld on the basis that his Honour had incorrectly applied the separate question procedure under Part 17, r17 of the Federal Magistrates Court Rules 2001 (Cth).

13. Rainsford v Victoria [2007] FCA 1059.

14. Although the analysis in Rainsford focused on whether the alleged acts constituted a service, Sundberg J also noted [at 80] that an analysis of whether the acts would amount to “the making available of a facility” would not have led to a different outcome.

15. These words were adopted by Sundberg J from Underwood J in Secretary of the Department of Justice and Industrial Relations v Anti-Discrimination Commissioner (2003) 11 Tas R 324, 341.

16. Note 2 above.

17. Note 2 above, 30 [13] citing with approval the conclusions of Sundberg J at [85] at first instance.

18. Note 2 above, 32 [20] citing with approval the conclusions of Sundberg J at [89] at first instance.

19. Rainsford v Victoria, note 1 above.

20. Rainsford v Victoria (2005) 144 FCR 279, 296 (Kenny J, Hill and Finn JJ agreeing). These comments were cited by Sundberg J at [65].

21. IW v City of Perth (1996) 191 CLR 1, 24 (Dawson and Gaudron JJ); 27 (Toohey J); 41 (Gummow J); 74-5 (Kirby J); Ferneley v Boxing Authority of New South Wales (2001) 115 FCR 306, 318; Director-General, Department of Community Services v MM and Another [2003] NSWSC 1241,[42]; Rainsford v Victoria (2005) 144 FCR 279, 296.

22. IW v City of Perth (1996) 191 CLR 1, 23 (Dawson and Gaudron JJ); 41 (Gummow J); 72-3 (Kirby J); Rainsford v Victoria, note 12 above, 296.

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