Case: Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279
Outcome: considered
Mr Rainsford then appealed to the Full Federal Court which unanimously found that the separate questions posed by Raphael FM were inappropriate to answer because they relied on facts that had not been found or agreed between the parties: Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279. The Full Court remitted the matter back to the Federal Magistrates Court. 12 Finally, on 6 December 2005, after hearing submissions from counsel, Walters FM determined that it was appropriate to transfer the proceeding to this Court. No party objected to this course. 13 I must also mention a related proceeding. In September 2001, Mr Rainsford commenced a related proceeding in the Supreme Court of Victoria seeking judicial review of the decision to move him to the Charlotte Management Unit. That proceeding was dismissed on 23 November 2001. It is not challenged in this proceeding, and nor could it be. I mention it only because some of the affidavit evidence given in that proceeding has been put in evidence before me. 65 Some assistance on this question is to be gained from the obiter comments of Kenny J (with whom Hill and Finn JJ agreed) in the Full Court in this case. To begin with, however, it is important to note Kenny J's caveat at Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 at [52] : "The absence of findings of fact makes it very difficult indeed to provide any guidance to the parties on any substantive matter. An expression of opinion by this Court may be misleading because it is based on a misconception of the facts that are ultimately found ... With this in mind, only some very brief comments may be made about [the Federal Magistrate's] reasons in relation to the ['service'] question." Her Honour made those brief comments at [2005] FCAFC 163 ; 144 FCR 279 at [54] [55]: "[54] Section 4(1) provides an inclusive definition of services and that, amongst other things, unless the contrary intention appears, "services" includes "services of the kind provided by a government, a government authority or a local government body" (par (f)). As [the Federal Magistrate] recognised, on account of its remedial character, the DDA is to be generously construed and the word 'services' includes all matters which ordinarily fall within that notion: see IW v City of Perth at 11-12 per Brennan CJ and McHugh J; 22-23 per Dawson and Gaudron JJ; 27 per Toohey J; 39, 41-42 per Gummow J; and 69-70 per Kirby J. The identification of the 'service' at issue in any case is a question of fact for the trier of fact: see Waters at 361 per Mason CJ and Gaudron J, with whom Deane J relevantly agreed (382); 394 per Dawson and Toohey JJ; and 404-405 per McHugh J; and also Catholic Education Office at [12]-[13] per Tamberlin J and [102] per Sackville and Stone JJ. The question of whether an activity is a service for the purposes of s 24 of the DDA is essentially a matter of characterisation. In discharging statutory duties and functions and in exercising statutory powers in the public interest, a body may also be engaged in the provision of services to particular individuals: see IW v City of Perth at 44 per Gummow J; also 12-13 per Brennan CJ and McHugh J; 24 per Dawson and Gaudron JJ; 29 per Toohey J; and 72 per Kirby J. The Federal Magistrate 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": see [17]. [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, eg, s 47. Indeed, this proposition is fortified by the provisions of the [Prison Services] 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." 79 I am conscious of the arguments made by Mr Rainsford relying on the provisions of the Corrections Act and the Prison Services Agreement; they are referred to in the passage of the judgment of Kenny J in the Full Court in this matter that I have set out at [65]. 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. However, for the reasons I have identified, I do not consider either of the postulated services to fit the definition in the DDA. In addition, it is important not to focus only on the prisoner welfare purposes of the Corrections Act and the Prison Services Agreement. The first purpose listed in the Corrections Act is "to provide for the establishment management and security of prisons and the welfare of prisoners": s 1(a). This purpose demonstrates the balancing act that prison authorities must perform. Their obligations are not just to the welfare of prisoners but also to the general public and prison staff through providing adequate security measures, to other prisoners by ensuring that prisoners do not harm one another, and to the general good governance of the prison. To suggest that transport of prisoners or cell accommodation is a service to prisoners is to ignore the fact that they are functions performed in order to comply with the sometimes competing obligations of prison management to its prisoners, its staff, the public and the good governance of the prison. 80 The parties did not argue for any difference in result depending on whether transportation and accommodation were analysed as involving the provision of a service or the making available of a facility. I agree that in this case there is no relevant difference. Neither activity can be described as a facility any more than as a service. 81 Having concluded that the respondents did not provide a relevant service or make available a relevant facility, the application must be dismissed. In case a contrary view should be taken on this point, I will consider the other aspects of the applicant's claim.