Tafao v State of Queensland [2020] QCATA 76

Date: 22 May 2020
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Members: Senior Member Howard; Member Traves
Human Rights Act 2019 (Qld) Sections: s 108
Rights Considered: N/A
Other Legislation: Anti-Discrimination Act 1991 (Qld) ss 7(m), 8, 10, 11, 101, 133, Schedule; Births, Deaths and Marriages Registration Act 2003 (Qld) ss 23, 24; Corrective Services Act 2019 (Qld) ss 5A, 319B, 319C, 319G, 319H, 319I, Chapter 6, Part 12A, Part 12B

Keywords: Discrimination; Prison; Gender Identity

A former prisoner applied for leave to appeal and appeal of a decision in which she experienced discrimination on the basis of her gender identity during her incarceration in a male prison. Pursuant to section 108, the Human Rights Act 2019 (Qld) was found to not apply because the Tribunal’s decision was made prior to the commencement of the Act.

This case was brought by a former prisoner, Ms. Tafao (the applicant), who is a transgender woman. It concerned an application for leave to appeal and appeal of a decision made by the Tribunal to dismiss the applicant’s complaint ‘that the respondents had contravened the Anti-Discrimination Act 1991 (Qld)…by unlawfully discriminating against her on the basis of gender identity while she was incarcerated in a male, high security, prison’: at [1]. The second respondent was Serco Australia Pty Ltd (the company that operates the South Queensland Correctional Centre) and Mark Walters (a director of the South Queensland Correctional Centre).

The applicant argued that she was discriminated against by prison officers, particularly due to their ‘insistence on referring to her by male pronouns and by the imposition of behavior plans’ which she argued were ‘aimed at mitigating her transgendered behavior and which prevented her from “being who [she was]”’: at [2].

After discussing the application of the Anti-Discrimination Act 1991 (Qld), the Tribunal observed that the Human Rights Act 2019 (Qld) was not necessary to consider because it ‘does not apply to an act or decision made by a public entity before its commencement, which was 1 January 2020’: at [18].

The Tribunal granted the leave to appeal, allowed the appeal, and set the Tribunal’s original decision aside. It was held that in respect of the use of male pronouns to refer to Ms. Tafao, the respondents were ‘jointly and severally liable for unlawful indirect discrimination’ pursuant to section 101 of the Anti-Discrimination Act 1991 (Qld) and ordered the respondents to make a private apology: at [180].

Visit the reported judgement: Tafao v State of Queensland [2020] QCATA 76