Arnesen v Commissioner, NSW Department of Corrective Services

[2008] NSWADT 294

CITATION:	Arnesen v Commissioner, NSW Department of Corrective Services [2008] NSWADT 294
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Damon Arnesen RESPONDENT Commissioner, NSW Department of Corrective Services
FILE NUMBER:	071106
HEARING DATES:	29 February 2008
SUBMISSIONS CLOSED:	7 April 2008
DATE OF DECISION:	31 October 2008
BEFORE:	Rice S - Judicial Member; O'Sullivan M - Non-Judicial Member; Hayes E - Non-Judicial Member
CATCHWORDS:	Race Discrimination - services
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Migration Act 1958 (Cth)
CASES CITED:	Commissioner of Police, Police, NSW Police Service v Estate Edward John Russell & ors [2001] NSWSC 745 Dezfouli v Department of Corrective Service & anor [2008] NSWADT 198 Director-General, Department of Community Services v MM [2003] NSWSC 1241 Dutt v Central Coast Area Health Service [2002] NSWADT 133 IW v City of Perth (1997) 191 CLR 1Rainsford v State of Victoria and GSL Custodial Services Pty Ltd, [2007] FCA 1059 Rainsford v State of Victoria [2008] FCAFC 31 Shamoon v. Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26 Tanevski v Fluor Australia Pty Ltd [2008] NSWADT 217 Walker v State of New South Wales [2003] NSWADT 13
REPRESENTATION:	APPLICANT P Batley, barrister RESPONDENT T Anderson, barrister
ORDERS:	The complaint is dismissed.

1 In light of the reasons set out below, Mr Arnesen’s complaint is dismissed. That means that his application to this Tribunal has been unsuccessful.

Background

2 Mr Damon Arnesen was born in Canada. He migrated to Australia when he was aged two, in 1962. He is now aged 48. Mr Arnesen has been an Australian citizen since 1983.

3 In late 2006 Mr Arnesen was an inmate at Cessnock Correctional Centre, where he was classified in Category C1 under clause 22(1) of the (since-repealed) Crimes (Administration Of Sentences) Regulation 2001. Being classified in Category C1 meant that Mr Arnesen was ‘confined by a physical barrier unless in the company of a correctional officer or some other person authorised by the Commissioner’.

4 Under clause 22(2) of the Regulation, Mr Arnesen applied to the Commissioner to have his classification varied to Category C2, which would have meant that he ‘need not be confined by a physical barrier at all times’. On about 23 November 2006 Mr Arnesen was told that his application to vary his classification would not be approved until and unless he proved that he was an Australia citizen. After Mr Arnesen made necessary inquiries and, with assistance, obtained documentation to establish his Australian citizenship, his classification was varied to Category C2 on about 20 December 2006.

Conduct complained of

5 It would be possible to describe the Commissioners’ conduct in relation to Mr Arnesen’s application for variation of his classification as either a delay, or a refusal, or as a conditional approval. It does not matter: however it is described, the Commissioner’s conduct was to require Mr Arnesen to establish his Australia citizenship before his classification would be varied. That is the conduct that Mr Arnesen complains of. Mr Arnesen expressed it this way in his letter of complaint to the NSW Anti-Discrimination Board: ‘I was told it was up to me to prove my Australian citizenship to progress to a minimum security camp’.

6 Mr Arnesen does not say that he had to comply with an unreasonable requirement with which he could not comply but others could. That is a claim under the NSW Anti-Discrimination Act 1977 that he, through his legal representatives, explicitly declined to make in his pleadings and at the hearing.

7 Rather, Mr Arnesen says that Commissioner’s requiring him to establish his Australia citizenship was less favourable treatment, and that the reason for that less favourable treatment was his national origin. Less favourable treatment on the ground of national origin is unlawful race discrimination under the Anti-Discrimination Act 1997.

8 Mr Arnesen says that this discrimination occurred in the provision by the Commissioner of a ‘service’: the classification of inmates. The Commissioner says that the system of classifying inmates is not a ‘service’ within the meaning of the Anti-Discrimination Act 1977, and so any discrimination, if it occurred, cannot be unlawful. We must decide first whether the classification of inmates is a ‘service’ to Mr Arnesen.

A service?

9 Two cases under the NSW Anti-Discrimination Act 1977 make it clear that the carrying out of its functions by a government agency can be a ‘service’: Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors [2001] NSWSC 745 (police, protecting people and property), and Director-General, Department of Community Services v MM [2003] NSWSC 1241 (community service officers, receiving and dealing with applications from prospective foster parents). Similarly the High Court has said that the carrying out by a government agency of its functions can be a ‘service’ (IW v City of Perth (1997) 191 CLR 1).

10 Recent cases have considered whether certain conduct by a corrections authority in relation to inmates is a service. In Dezfouli v Department of Corrective Service & anor [2008] NSWADT 198, currently under appeal, this Tribunal, differently constituted, decided at [41] that ‘acts such as strip searches … and the provision of accommodation to inmates’ were ‘services’ for purposes of the Anti-Discrimination Act 1977. In doing so the Tribunal referred to recent decisions under the Disability Discrimination Act (Cth) 1992 relating to complaints made by Mr Rainsford.

11 Mr Rainsford was an inmate who complained that the prison authority had discriminated against him in the way it transported him to court and between prisons. In Rainsford v State of Victoria and GSL Custodial Services Pty Ltd, [2007] FCA 1059 at [77] and [78], Sundberg J said that prison transport is a ‘fundamental integer’ of the prison system, without which it ‘simply could not function’. He said that it is artificial to call it a service when ‘those affected have no or almost no control’, and the conduct ‘does not, of itself, provide … a benefit’.

12 In responding to Mr Arnesen’s case, the Commissioner relies on Sundberg J’s decision, and the tests of whether a person has control and receives a benefit.

13 Mr Rainsford appealed against Justice Sundberg’s decision. After the hearing in Mr Arnesen’s matter, but before we published this decision, the Full Court of the Federal Court published its reasons for dismissing Mr Rainsford’s appeal. The Court did not, however, dismiss the appeal because it agreed with Sundberg J’s view that prison transport cannot be a ‘service’. In Rainsford v State of Victoria [2008] FCAFC 31 at [9] the Court said that, differently from Sundberg J, ‘we see some strength in the view that the provision of transport and accommodation, even in a prison, may amount to a service …’.

14 We respectfully agree with the Full Court of the Federal Court. Sundberg J’s view, and the Commissioner’s response to Mr Arnesen’s complaint, would limit the provision of a service to circumstances where a person seeks or requests the carrying out of some conduct, such as the request in Department of Community Services v MM to be considered as foster parents, or the application in IW v City of Perth for zoning approval for premises. While something done in response to a request may be a service, it is not obvious that conduct cannot be a service when it is not requested by a person or when, as submitted by the Commissioner, it is ‘imposed’ on a person.

15 An example of when conduct is a service when imposed and not requested is Commissioner of Police, NSW Police Service v Estate Edward John Russell, where the conduct of the police in detaining Mr Russell was integral to their carrying out their duties, and something over which Mr Russell had no control. Nevertheless the conduct of the police was a ‘service’, a finding that was not disputed on appeal: Commissioner of Police v The Estate of Edward John Russell & ors [2002] NSWCA 27.

16 To the extent that the conduct must have the potential to confer a benefit to be a ‘service’, Sundberg J’s view at [78] was that performance of an inherent part of an agency’s duties could not confer a benefit. He said: ‘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’.

17 When something is done because it has to be done, it does not follow that what is done cannot confer a benefit. In fact, it seems to us that accommodating prisoners in cells is indeed ‘a helpful or beneficial activity so far as the prisoner is concerned’. To exclude the way in which prisoners are accommodated from the definition of ‘service’ would allow prisoners to be discriminated against, for example on the basis of their race, with impunity. They could be refused a cell, allocated to an overcrowded cell, or put in dangerous or unhygienic accommodation. Prisoners will be better or worse off for decisions made as to their accommodation. Whether the conduct could confer a benefit has to be decided on the facts.

18 A distinction can be drawn, as Sundberg J did, between a government agency’s provision of a service, and its performance of its duty. But for purposes of anti-discrimination it is far from necessary, and possibly wrong, to do so. In IW v City of Perth Dawson and Gaudron JJ, said, 'at p22'

In construing legislation designed to protect basic human rights and dignity, the courts "have a special responsibility to take account of and give effect to [its] purpose"[ Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J (with whom Deane J agreed). See also at 372 per Brennan J, 394 per Dawson and Toohey JJ and 406-407 per McHugh J.]. For this reason, the provisions of the Act concerned with discrimination in the provision of goods or services … should be construed as widely as their terms permit. In particular, "services", a word of complete generality, should not be given a narrow construction unless that is clearly required by definition or by context.

19 A construction of ‘service’ that excludes from its scope the things that a corrections authority does to manage inmates is not ‘clearly required’ by definition or by context. The Tribunal in Dezfouli noted at [30] ‘Cases where aspects of gaol life have been found to be ‘services’ within the ADA equivalent in other States ..:

In Victoria, the provision of work and promotional opportunities to inmates have been held to be ‘services’ within the ADA equivalent: Alipek v GSL Custodial Services Pty Ltd & Anor (Anti-Discrimination) [2008] VCAT 845.

In Queensland, provision of meals, work and accommodation have been held to be ‘services’ within the ADA equivalent: As to work and accommodation see NC and others v Queensland Corrective Services Commission [1997] QADT 22. As to meals see Mahommed v State of Queensland [2006] QADT 21.

The Human Rights Equal Opportunity Commission found that provision of work, sport and accommodation in West Australia (WA) gaols have been found to be ‘services’ within the Commonwealth Disability Discrimination Act: See X & Y v Western Australia [1996] HREOCA 32.

20 In our view the system of classifying inmates is probably a ‘service’ within the meaning of the Anti-Discrimination Act 1977. But the service that Mr Arnesen is complaining about is more specific: it is consideration of his application to vary his classification. Even on the Commissioner’s view of what is necessary to constitute a service, the Commissioner’s consideration of Mr Arnesen’s application was a service. It is analogous to the request in Department of Community Services v MM to be considered as foster parents, and the application in IW v City of Perth for zoning approval for premises. Mr Arnesen requested consideration of his application to vary his classification, and classification into Category C2 would have conferred on Mr Arnesen the benefit of the lower-security category.

21 We note that most recently, in Dezfouli v Department of Corrective Services [2008] NSWADT 277 this Tribunal, differently constituted again, said at [18] that “there is real difficulty in identifying a shower schedule as a ‘service’ within the meaning of the Act. The ‘early shower programme’ appears to be an administrative matter rather than a ‘service’ in the usual sense of the term”. The Tribunal in that matter did not need to decide whether a service was in fact being provided. We note however that what was in issue in that matter was conduct towards the complainant in the course of his using the special shower facilities provided by the Commissioner, specifically “to secure [certain inmates’] safety”. For the reasons we have given, a distinction in such circumstances between an ‘administrative matter’ and a ‘service’ seems artificial, a narrower approach than that propounded by the High Court in IW v City of Perth, and unduly limiting of the scope of the Anti-Discrimination Act in protecting people against discriminatory conduct.

22 In our view, consideration of Mr Arnesen’s application to vary his classification was a ‘service’ provided by the Commissioner to Mr Arnesen within the meaning of the Anti-Discrimination Act.

Less favourable treatment

23 The next question for us is whether, when considering Mr Arnesen’s application to vary his classification, the Commissioner’s conduct – requiring Mr Arnesen to establish his Australia citizenship – was less favourable treatment of Mr Arnesen.

24 The usual approach to this question is to consider the circumstances of a comparator. We assume that inmates commonly make applications to vary their classification, and that records of the manner in which those applications are dealt with would be available. Evidence of the Commissioner’s consideration of an application to vary classification made by an inmate who was in the same circumstances as Mr Arnesen would have been helpful in assessing whether Mr Arnesen was subjected to less favourable treatment. But no evidence was led of the Commissioner’s consideration of an application to vary classification made by another inmate who was in the same circumstances as Mr Arnesen.

25 Evidence of an actual comparator is, however, not essential; we can instead consider how a hypothetical comparator would have been treated. Conceptually, it is not possible to decide how a hypothetical comparator would have been treated separately from deciding what in fact the reason for the conduct was (Dutt v Central Coast Area Health Service [2002] NSWADT 133; Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26).

Reason for the conduct: born in Canada?

26 Mr Arnesen says that the reason for the Commissioner’s conduct was that he was born in Canada. In his complaint to the Anti-Discrimination Board Mr Arnesen complained of treatment ‘owing to my Canadian Heritage’. Mr Arnesen’s evidence is that he was born in Canada, and that he told the Commissioner that he was born in Canada. In his pleadings Mr Arnesen states that he was born in Canada, and alleges that the reason for the Commissioner’s conduct was his ‘national origin’. It is clear therefore that Mr Arnesen’s claim is that his having been born in Canada – which, for purposes of the Anti-Discrimination Act, is his national origin – was a reason for the Commissioner’s conduct. Mr Arnesen would say therefore that a comparator would be a person who was not born in Canada.

Reason for the conduct: a ‘characteristic’?

27 In the alternative to relying on his race as the reason for the Commissioner’s conduct, Mr Arnesen relies on the ‘characteristics’ extension of the definition of ‘race’ in the Anti-Discrimination Act, which recognises that a reason for conduct could be a characteristic that appertains generally to, or is generally imputed to, a person’s race. In making this claim Mr Arnesen refers, however, not to a characteristic of his national origin – that is, not to a characteristic of a person born in Canada – but to a characteristic of persons of non-Australian origin. He relies on a characteristic that appertains generally to, or is generally imputed to, people born outside Australia, which is (he says) “susceptibility to removal or deportation under the Migration Act 1958 (Cth)”.

28 This alternative claim is inconsistent with Mr Arnesen’s primary claim. Either he alleges that the reason for the conduct was his being of Canadian origin with an alternative claim that relies on a characteristic of having been born in Canada, or he alleges that the reason for the conduct was his not being of Australian origin with an alternative claim that relies on a characteristic of not having been born in Australia. The former approach focuses on the fact of Canadian birth, and asks what characteristics appertain generally to, or are generally imputed to Canadian-born people. The latter is a much broader approach, as it focuses on the fact of having been born outside Australia, and asks what characteristics appertain generally, or are generally imputed, to people born outside Australia. But whichever argument Mr Arnesen makes, we do not think he can succeed in a claim based on a characteristic.

29 Proof of a characteristic can be difficult. There will be times when a characteristic can be accepted as a matter of common knowledge (eg Tanevski v Fluor Australia Pty Ltd [2008] NSWADT 217 at [47] (under appeal)), and times when it cannot (eg, Walker v State of New South Wales [2003] NSWADT 13 at [46]). When a characteristic cannot be accepted as a matter of common knowledge, it must be established by logically probative evidence (Walker at [46]).

30 It does not matter whether Mr Arnesen’s claim is that susceptibility to removal or deportation was a characteristic that appertains generally to, or is generally imputed to, people born in Canada or, more broadly, people born outside Australia. In light of our own experience, and in the absence of any evidence, we do not accept, as matter of common knowledge, that susceptibility to removal or deportation is a characteristic that appertains generally to, or is generally imputed to, either group of people. In fact, in the absence of evidence, it is our opinion that, in Australia’s migrant-based population, susceptibility to removal or deportation is a characteristic that is not generally imputed, certainly to people born in Canada and probably not to people born outside Australia.

Whether being born in Canada was a reason for discrimination

31 We return therefore to the question of whether Mr Arnesen’s national origin was a ground for the Commissioner’s conduct. We are satisfied that the Commissioner was aware that Mr Arnesen had been born in Canada; Mr Arnesen’s uncontested evidence is that in a case management meeting in June 2006 he said “I was born in Canada”, and a Departmental document titled ‘Initial Case Plan Classification and Placement and dated 21 June 2006 is endorsed ‘Australian. Ex Canadian (Vancouver) (1962 arrived)’.

32 In considering Mr Arnesen’s application for reclassification, the Commissioner was obliged to give effect to the policy set out in ‘Commissioner’s Memorandum No 2006/38, dated 19 May 2006. The terms of the Commissioner’s Memorandum make clear that a person’s migration status was relevant to their eligibility for variation to classification. The terms of the policy imposed restrictions on the classification of inmates according to their citizenship status: restrictions on classification were imposed on inmates who were non-citizens, whether lawful or non-lawful. The same restrictions were not imposed on inmates who were Australian citizens. Under the policy, an inmate’s place of birth – their national origin – was irrelevant. An inmate’s non-Australian citizenship was the reason for imposing restrictions on classification. A reason for the Commissioner’s requiring Mr Arnesen to establish his Australia citizenship was therefore that it was required in order to give effect to the policy.

33 But Mr Arnesen would be treated less favourably because of his having been born in Canada if a person in the same circumstances, but born in Australia, was not required to establish their Australia citizenship. The issue for us to decide is whether, by requiring him to prove his Australian citizenship, the Commissioner treated Mr Arnesen differently from the way he treated or would have treated a person born in Australia.

34 Mr Arnesen asks us to assume that this is so, and asserts that a person born in Australia would not be required to prove his Australian citizenship. The Commissioner responds by saying that there is no evidence that that would be the case, and that it is therefore not possible for us to decide that that would be the case.

Absence of evidence

35 In the absence of evidence having been led by either party on the central issue of less favourable treatment, we can only consider whether the available material is a sufficient basis for drawing an inference as to how a person born in Australia would have their application for variation to classification assessed. There is no evidentiary onus on the Commissioner to show how a person born in Australia would have had their application for variation to classification assessed, and we do not, as was proposed for Mr Arnesen, draw any inference from the Commissioner’s not having called evidence on this issue.

36 On the very limited material made available to us we must try to determine how a person born in Australia was or would have been treated in the same circumstances as Mr Arnesen’s. It is frustrating that we must do so in the absence of evidence we assume would be available as to how people born in Australia were in fact treated in the same circumstances as Mr Arnesen’s. Although we may ‘inquire into and inform ourselves on any matter in such manner as we think fit’ (section 73(2) Administrative Decisions Tribunal Act 1997), we think it fit in this case to not make or initiate our own inquiries, or to call evidence on our own motion, but to rely principally on the evidence prepared and presented by the parties’ legal representatives who, it is apparent from the pleadings that have been filed, had carriage of the matter for some months before the hearing.

Whether a person born in Australia would have been treated differently

37 We are aware that a person who is born in Australia is not necessarily an Australia citizen. A person born in Australia would be a lawful non-citizen if they were born to parents who were not citizens but were present in Australia lawfully at the time, i.e. who were neither permanent residents nor Australian citizens, but were present in Australia on, say, valid temporary visas. Similarly a person born in Australia would be an unlawful non-citizen if they were born to parents who were not citizens and were present in Australia unlawfully at the time, i.e. they were neither permanent residents nor Australian citizens, and were present without a valid visa.

38 It cannot, therefore, be assumed that a person who says that they were born in Australia is an Australia citizen: even if it is accepted that they were born in Australia, a person may not have, by that fact alone, become an Australian citizen.

39 If the Commissioner proceeded on that very cautious basis in applying the terms of the Commissioner’s Memorandum, then every inmate – regardless of country of birth – would be required to prove their Australian citizenship before a decision could be made about their application for a variation to classification.

40 The Commissioner’s Memorandum, for example, has a heading ‘General’, under which it says ‘Careful consideration is to be given to the type of visa an inmate may have, and confirmation from DIMA is required in written form in all circumstances’. On its face this ‘general’ statement applies to every inmate, regardless of their place of birth and claim of citizenship, and indicates that the Commissioner may well take a cautious approach and require written confirmation of every inmate’s citizenship status before acting on any application to vary classification.

41 It might be thought unlikely that that is what the Commissioner did; it might be thought that an inmate in the same circumstances as Mr Arnesen but who claimed an Australian place of birth and presented in, say, name appearance and accent as likely to have been born in Australia, would not be required to prove their Australian citizenship. But we do not know. We cannot assume that the Commissioner does not proceed cautiously, and there is no evidence before us that suggest the Commissioner does otherwise.

42 The context of the 'General' statement in the Commissioner's Memorandum suggests that it could, instead, be read as being limited to inmates whose circumstances indicate that they may be non-citizens. There is nothing in the evidence or submissions that enables us to resolve this.

43 We are left in the position of not knowing how an inmate who was born in Australia would have been treated in the same circumstances as Mr Arnesen was. We cannot do as Mr Arnesen asks us to, and assume that the Commissioner did not require a person born in Australia to prove their Australian citizenship before having their classification status determined.

44 The comparative test does not, therefore, help us decide whether Mr Arnesen was subject to less favourable treatment on the ground of his having been born outside Australia. The ‘comparator’ exercise itself is not essential: what must be decided is whether there was less favourable treatment, and the ‘comparator’ exercise is merely an aid, although a powerful one, in making that decision (Shamoon v Chief Constable of the Royal Ulster Constabulary, per Lord Scott of Foscote at [109]-[110].

Other evidence

45 In this matter there is no other evidence available to us on which we could find or infer that Mr Arnesen was subject to less favourable treatment on the ground of his having been born outside Australia.

46 An observation that it might be thought unlikely that the Commissioner did in fact require an inmate, in the same circumstances as Mr Arnesen but who claimed an Australian place of birth, to prove their Australian citizenship is not evidence, and could not support a finding that Mr Arnesen was treated less favourably.

47 There is evidence that Mr Arnesen had previously been classified in Category C2. But that occurred in 2004 and 2005, before the Commissioner’s Memorandum in evidence before us was in effect, so is not a fact on which we can base an inference that on this occasion, in 2006, he was discriminated against on any ground, let alone his national origin.

Decision

48 On the evidence available to us, the Commissioner treated Mr Arnesen in the same way that he treated, in the same circumstances, any person not born in Australia, whether or not they were born in Canada. More to the point, however, on the evidence available to us we cannot say that the Commissioner treated Mr Arnesen differently from the way that he treated, in the same circumstances, any person not born in Australia.

49 If full effect was given to the Commissioner’s Memorandum then any person, regardless of their place of birth, should have been treated the same way that Mr Arnesen was treated. The evidence does not show that anyone was treated differently. We therefore cannot say that Mr Arnesen was discriminated against within the meaning of the Anti-Discrimination Act.

50 In those circumstances Mr Arnesen’s complaint is dismissed. Having regard to section 110 of the Anti-Discrimination Act 1977, we make no order for costs.

Order

The complaint is dismissed.