Contreras-Ortiz v Commissioner, Department of Corrective Services - [2008] NSWADT 308

CITATION: Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308

DIVISION: Equal Opportunity Division

PARTIES:
APPLICANT
Carlos Contreras-Ortiz
RESPONDENT
Commissioner, Department of Corrective Services

FILE NUMBER: 071077

HEARING DATES: 7, 8 April 2008
13 May 2008

SUBMISSIONS CLOSED: 19 May 2008

DATE OF DECISION:
19 November 2008

BEFORE: Pritchard S - Judicial Member; Hiffernan N - Non-Judicial Member; Monaghan-Nagle L - Non-Judicial Member

CATCHWORDS: Race Discrimination - Goods and Services

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Anti-Discrimination Act 1977 (NSW)
Anti-Discrimination Act 1992 (NT)
Anti-Discrimination Act 1991 (Qld)
Anti-Discrimination Act 1998 (Tas)
Crimes (Administration of Sentences) Regulation 2001 (NSW)
Conveyancers Licensing Act 2003 (NSW)
Conveyancers Licensing Regulation 2006 (NSW)
Crimes (Administration of Sentences) Act 1999
Crimes (Administration of Sentences) Act 2001 (NSW) Disability Discrimination Act 1992 (Cth)
Discrimination Act 1991 (ACT)
Equal Opportunity Act 1984 (WA)
Equal Opportunity Act 1984 (SA)
Equal Opportunity Act 1995 (Vic)
Evidence Act 1995
Migration Act 1958 (Cth)
Nurses and Midwives Act 1991 (NSW)
Police Service Act 1990 (NSW)
Race Relations Act 1976 (UK)
Sex Discrimination Act 1975 (UK)

CASES CITED: AB v Registrar of Births, Deaths and Marriages (2006) 235 ALR 147
AB v Registrar of Births, Deaths and Marriages (2007) 162 FCR 528
Australian Medical Council v Wilson (1996) 68 FCR 46
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165
Catholic Education Office v Clarke (2004) 138 FCR 121
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 11
Commissioner of Police, NSW Police Service v Estate Edward John Russell [2001] NSWSC 745
Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78
Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74
Director-General, Department of Community Services v MM and another [2003] NSWSC 1241
Farah v Commissioner of Police of the Metropolis [1998] QB 65
Ferneley v Boxing Authority of New South Wales (2001) 115 FCR 306
Kumaran v Rail Infrastructure Corporation [2005] NSW ADTAP 41
Macabenta v Minister of Immigration and Multicultural Affairs (1998) 90 FCR 202
Purvis v State of New South Wales (2003) 217 CLR 92
Rainsford v State of Victoria and anor (2004) 184 FLR 110
Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat & Livestock Corporation (No 2) (1980) 44 FLR 455
Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251
Sydney University Postgraduate Representatives Association (SUPRA) v Minister for Transport Services [2006] NSW ADT 83
Victoria v Schou [2004] VSCA 71
Waters v Public Transport Corporation (1991) 173 CLR 349 and IW v City of Perth (1997) 191 CLR 1

REPRESENTATION:
APPLICANT
C Lenehan, barrister
RESPONDENT
E Brus, barrister

ORDERS: 1.The complaint of direct race discrimination in contravention of s19(a) and (b) of the Anti-Discrimination Act 1977 (NSW) substantiated
2.The complaint of indirect race discrimination is dismissed.Parties to file within 7 days of these orders submissions as to the form of orders in relation to remedies which are appropriate in light of the Tribunal’s reasons and conclusions.

1 The applicant was born in Bogota, Colombia. He is and was at all relevant times a citizen of Colombia. He is not and has never been a citizen of Australia.

2 The applicant is currently a prison inmate in custody at the Long Bay Correctional Complex (Metropolitan Special Programs Centre). He has been detained in the care, custody and control of the Commissioner (“the Commissioner”) of the New South Wales Department of Corrective Services (“the Department”) since 28 April 1998. On 11 August 2000, he was convicted for a federal offence and sentenced for a period of 15 years, commencing 28 April 1998. Accordingly, his release date is 27 April 2013. However, as a federal offender, his non-parole period will expire on 27 April 2009. This means that his earliest possible release date is 27 April 2009.

3 At all material times, the applicant has been classified as Category “C1” under clause 22 of the Crimes (Administration of Sentences) Regulation 2001 (NSW). This is the category of inmates who, in the opinion of the Commissioner, should be confined by a physical barrier unless in the company of a correctional officer or some other person authorised by the Commissioner. In order to be eligible for a work release or other release program, an inmate must be classified as Category “C3”.

4 With effect from 1 November 2005, the Commissioner adopted a policy in relation to “Inmates ‘Of Interest to Immigration’” (“the policy”), the effect of which is that unless “exceptional circumstances” exist, unlawful non-citizens, such as the applicant, cannot progress beyond Category “C1” security level, and are ineligible to be considered for a work order under s 6, or a local leave permit under s 26 of the Crimes (Administration of Sentences) Act 2001 (NSW). The result is that unless they can establish exceptional circumstances, inmates who are not Australian citizens and do not hold a permanent visa under the MigrationAct1958 (Cth) cannot progress to “C2” and “C3” security levels, and cannot be considered for a work order or local leave permit enabling work or employment outside a correctional centre.

5 The applicant alleges both direct and indirect discrimination on the ground of race by the Commissioner, as first respondent, and/or the Commissioner’s employer, the State of New South Wales, as second respondent. He alleges that the respondents have contravened s 12(a) and (b) of the Anti-Discrimination Act 1977 (NSW) (“AD Act”) (relating to qualifying bodies), s 13 (a), (b) and (c) (relating to employment agencies), and s 19 (a) and (b) (relating to the provision of goods and services).

The ADB complaint

6 On 8 November 2006, the applicant lodged a complaint with the President of the Anti-Discrimination Board (“ADB”) alleging breaches of the AD Act by the Commissioner during the period 8 November 2005 to 8 November 2006. The applicant was then held in custody at the Cessnock Correctional Centre.

7 In his complaint, the applicant alleged that the Commissioner had “ordered the Classification Section not to approve [his] C-2 Classification so that [he could] not apply for Work Release to which all prisoners, Australian or not, are entitled to.” According to the complaint:

The excuse is that I am a not Australian and that several prisoners have escaped Minimum Security consequently for security reasons I am not entitled to me benefits (C-2 C-3). Prisoners have always escaped Minimum Security and the rules remain the same: Upon recapture or reoffense (Classification E-1 E-2) minimum security benefits are cancelled for life (C-1 C-2 C-3

8 By letter dated 22 December 2006, the ADB advised the Commissioner that it had received a complaint from the applicant alleging race discrimination in the provision of goods and services. According to the ADB’s Assistant Conciliation Officer, the complaint appeared to involve ss 6, 7 and 19 of the AD Act.

9 By letter dated 19 February 2007, the Commissioner advised the President of the ADB that as the applicant is not an Australian citizen, “the Department of Immigration and Multicultural Affairs issued a bridging visa to the complainant in 1999 to maintain his lawful status until the cessation of his custodial sentence, at which time he will become an unlawful non-citizen and be deported.” Further, as of 1 November 2005, the Commissioner had directed that “unless exceptional circumstances exist, unlawful non-citizens (such as the complainant) were not to be considered for the issuing of a work order enabling work or program activity outside a correctional centre and were not to progress beyond Category C1 security level”. There was no record on the applicant’s file of him having submitted an application for work release on the grounds that exceptional circumstances exist.

10 By letter dated 1 March 2007, the applicant sought a 40 day extension to advise the ADB as to the status of his complaint whilst he made an “exceptional circumstances” application.

11 On 2 March 2007, the applicant submitted an application for work release on the grounds of exceptional circumstances, identifying as his main concern the health of his wife in Colombia, the progressive nature of her disease, her inability to work, and his inability to provide for her health treatment. The applicant also referred to the lamentable situation of his four children, said to have been traumatized by his absence, to lack an adequate and appropriate diet and clothing, and to presently attend the public school system in Colombia. Annexed to the application were copies of medical certificates in relation to his wife’s progressive disease and psychological reports on his four children.

12 On 2 March 2007, the exceptional circumstances application was submitted under cover of a memorandum to the General Manager of Cessnock Correctional Centre. The General Manager declined to support the justification for “exceptional circumstances”, and made the following notations on the cover memorandum:

There is work at Cessnock for C1, at present inmate is the library

he could, but does not, work in an area that earns more money. In addition he has not sent any money out

13 The applicant’s evidence, unchallenged, was that he was provided with an envelope containing the annotated cover memorandum dated 2 March 2007 by a wing officer at the Long Bay Correctional Complex in around late July 2007.

14 By letter dated 7 June 2007, the ADB advised the applicant of the decision that his complaint was unsuitable for conciliation, and provided him with the opportunity to request a referral to the Administrative Decisions Tribunal (“the Tribunal”) for a hearing. By letter dated 12 June 2007, the applicant requested that his complaint be referred to the Tribunal. By letter dated 20 July 2007, the Tribunal notified the applicant that the President of the ADB had referred his complaint to the Equal Opportunity Division of the Tribunal for inquiry.

The Points of Claim

15 On 11 December 2007, the applicant filed Points of Claim in the Tribunal.

16 He alleges that at all material times, the respondents provided services for the purpose of finding work or employment for inmates of correctional services (including work or employment outside correctional centres), and that in providing those services the first and/or second respondents were "employment agencies" within the meaning of s 4 of the AD Act. This allegation is denied by the respondents.

17 Further, the applicant alleges, and the respondents admit, that during the period 8 November 2005 to 8 November 2006, and at a classification review meeting on 14 February 2007, in purported compliance with the policy, the first and/or second respondents and/or officers or employees of the Department:

(b) refused to consider authorising or permitting the applicant to participate in a development programme involving work or employment outside Cessnock Correctional Centre; and/or

(c) were only prepared to grant that authorization or permission (or consider such a grant) if the applicant was able to demonstrate "exceptional circumstances";

(d) refused to re-classify the applicant as a Category C2 or C3 inmate, which was a necessary qualification for participation in a development programme involving work or employment outside Cessnock Correctional Centre; and/or

(e) refused to consider re-c1assifying the applicant as a Category C2 or C3 inmate, which was a necessary qualification for participation in a development programme involving work or employment outside Cessnock Correctional Centre; and/or

(f) were only prepared to re-c1assify the applicant as a Category C2 or C3 inmate (or to consider reclassifying the applicant in that manner) if the applicant was able to demonstrate "exceptional circumstances";

(g) refused to find work or employment for the applicant outside the Cessnock Correctional Centre; and/or

(h) refused to consider finding work or employment for the applicant outside the Cessnock Correctional Centre; and/or

(i) were only prepared to find work or employment for the applicant outside the Cessnock Correctional Centre (or to consider finding such work or employment) if the applicant was able to demonstrate "exceptional circumstances";

(j) refused to consider exercising the powers or functions conferred by ss 6 and/or 26 of the Crimes (Administration of Sentences) Act and/or clause 22 of the Crimes (Administration of Sentences) Regulation in relation to the applicant; and/or

(k) were only prepared to consider exercising the powers or functions conferred by ss 6 and/or 26 of the Crimes (Administration of Sentences) Act and/or clause 22 of the Crimes (Administration of Sentences) Regulation if the applicant was able to demonstrate "exceptional circumstances".

18 In essence, the direct discrimination claim consists of the following allegations:

Migration Act 1958

(b) the applicant was treated less favourably than a person who was an Australian citizen would have been treated in the same circumstances or in circumstances which were not materially different;

(c) by reason of s 53(1) of the AD Act, the acts and omissions of the first respondent are taken to have been done by the second respondent, and the acts and omissions of the officers or employees of the Department are taken to have been done by the first respondent;

(d) in the premises, the first and second respondents contravened ss 12(a) and (b), 13(a), (b) and (c) and 19(a) and (b) of the AD Act.

19 In essence, the indirect discrimination claim consists of the following allegations:

i. authorise or permit the applicant to participate in a development programme involving work or employment outside Cessnock Correctional Centre; and/or

ii consider authorising or permitting the applicant to participate in a development programme involving work or employment outside Cessnock Correctional Centre; and/or

iii re-classify the applicant as a Category C2 or C3 inmate, which was a necessary qualification for participation in a development programme involving work or employment outside Cessnock Correctional Centre; and/or

iv consider re-c1assifying the applicant as a Category C2 or C3 inmate, which was a necessary qualification for participation in a development programme involving work or employment outside Cessnock Correctional Centre; and/or

v find work or employment for the applicant outside the Cessnock Correctional Centre; and/or

vi consider finding work or employment for the applicant outside the Cessnock Correctional Centre; and/or

vii consider exercising the powers or functions conferred by ss 6 and/or 26 of the Crimes (Administration of Sentences) Act and/or clause 22 of the Crimes (Administration of Sentences) Regulation in relation to the applicant

if the applicant was not susceptible to removal or deportation under the Migration Act 1958;

(b) the applicant was not able to comply with the requirement or condition;

(c) a substantially higher proportion of persons who are Australian citizens comply with or are able to comply with that requirement or condition;

(d) the requirement or condition was not reasonable having regard to the circumstances of the case;

(e) by reason of s 53(1) of the AD Act, the acts and omissions of the first respondent are taken to have been done by the second respondent, and the acts and omissions of the officers or employees of the Department are taken to have been done by the first respondent;

(f) in the premises, the first and second respondents contravened ss 12 (a) and (b), 13 (a), (b) and (c) and 19 (a) and (b) of the AD Act.

20 Section 7 of the AD Act provides as follows in relation to what constitutes discrimination on the ground of race:

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if, on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or

(b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or

(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person’s race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race

21 Section 12(a) and (b) of the AD Act provides as follows in relation to qualifying bodies:

It is unlawful for an authority or a body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of race:

(a) by refusing or failing to confer, renew or extend the authorisation or qualification,

(b) in the terms on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification ...”

22 Section 13 provides in relation to employment agencies as follows:

It is unlawful for an employment agency to discriminate against a person on the ground of race:

(b) in the terms on which it offers to provide the person with any of its services, or

(c) in the manner in which it provides the person with any of its services.”

23 Section 19 provides in relation to the provision of goods and services as follows:

It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:

(b) in the terms on which the other person is provided with those goods or services

24 The Crimes (Administration of Sentences) Act 1999 confers on the Commissioner power to issue a “local leave permit”. Section 26(1) provides that the Commissioner may issue a local leave permit allowing an inmate to be absent from a correctional centre (a) on such conditions and for such period as may be specified in the permit, and (b) for such purpose as the Commissioner considers appropriate. Section 26(2) provides that without limiting subsection (l)(b), the purposes for which a local leave permit may be issued include the following: “(f) enabling an inmate to apply for work or attend an interview with an employer or prospective employer” and “(h) enabling an inmate to engage in employment specified in the permit”.

25 Section 6(1) confers a related power on the general manager of a correctional centre to make an order directing any convicted inmate in the correctional centre to carry out such work as the general manager considers suitable. Section 6(2) provides that such convicted inmates or such classes or groups of convicted inmates “as the Commissioner may from time to time determine may be directed to carry out community service work, or any work for the Department or a public or local authority, outside the correctional centre in which they are imprisoned”.

26 The Crimes (Administration of Sentences) Regulation provision for the classification of male inmates. Relevantly, cl 22(1) provides:

“Each male inmate is to be classified in one of the following categories for the purposes of security and the provision of appropriate development programs:

"Category AA", being the category of inmates who, in the opinion of the Commissioner, represent a special risk to national security (for example, because of a perceived risk that they may engage in, or incite other persons to engage in, terrorist activities) and should at all times be confined in special facilities within a secure physical barrier that includes towers or electronic surveillance equipment.

"Category A1", being the category of inmates who, in the opinion of the Commissioner, represent a special risk to good order and security and should at all times be confined in special facilities within a secure physical barrier that includes towers or electronic surveillance equipment.

"Category A2", being the category of inmates who, in the opinion of the Commissioner, should at all times be confined by a secure physical barrier that includes towers, other highly secure perimeter structures or electronic surveillance equipment.

"Category B", being the category of inmates who, in the opinion of the Commissioner, should at all times be confined by a secure physical barrier.

"Category C1", being the category of inmates who, in the opinion of the Commissioner, should be confined by a physical barrier unless in the company of a correctional officer or some other person authorised by the Commissioner.

"Category C2", being the category of inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times but who need some level of supervision by a correctional officer or some other person authorised by the Commissioner.

"Category C3", being the category of inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times and who need not be supervised.”

27 As noted at paragraph 4 above, effective from 1 November 2005, the Commissioner adopted a departmental policy in relation to “Inmates ‘Of Interest to Immigration’”. In a memorandum dated 11 November 2005, Terry Halloran, Director, Inmate Classification and Case Management Branch, advised that the Commissioner had determined as departmental policy, effective 1 November 2005 “in regard to all inmates who will or may be removed (deported) from Australia at the cessation of their custodial sentence”, inter alia, the following:

“Progression to C3/CAT1

1. Unlawful Non-Citizens

– Unless exceptional circumstances suggest otherwise, no inmate should be considered for a progression to “C3/Category 1” or for the issuing of a section 6(2)/26 order enabling work or program activity outside a correctional centre. Such inmates should not progress beyond C1/Category 3 security level. Unlawful citizens include those holding a visitors visa, a students visa, a study visa, a work visa and illegal immigrants. Additional visa types may place the inmate in this category.

2. Criminal Justice Stay Visa – Unless exceptional circumstances suggest otherwise, no inmate should be considered for a progression to “C3/Category 1” or for the issuing of a section 6(2)/26 order enabling work or program activity outside a correctional centre. Such inmates should not progress beyond C1/Category 3 security level.

3. Lawful non-citizens - Inmates who are lawful non-citizens and have a permanent visa (usually resident or special category), but who have never been naturalized, may be considered for the issuing of a section 6(2)/26 order enabling work or program activity outside a correctional centre. Such inmates may

progress to C3/Cat 1

security

level. Recent advice from the DIMIA should be included with documentation from the council to the Commissioner in the cue of serious offenders and public interest inmates or with documentation to the Directors’ Committee in the case of all other inmates.

Exceptional circumstances

Exceptional circumstances will be considered by the Commissioner for serious offenders and public interest inmates only when the inmate’s application outlining exceptional circumstances is supported in writing by the General Manager of the centre in which the inmate is accommodated and after considering a recommendation from the SORC/PRLC ….”

28 The policy was restated in relevantly identical terms in Commissioner’s memoranda dated 28 March 2006 and 19 May 2006. It was also incorporated in Chapter 18, entitled “External Leave Programs”, of the Inmate Classification Placement and Procedures Manual, as amended at December 2006.

29 18.1.1 of the Inmate Classification Placement and Procedures Manual provides as follows in relation to “Case management and Throughcare to the Community”:

The External Leave Programs developed by the Department in consultation with the community provide an opportunity for selected inmates approaching the end of their sentence to:

· re-establish themselves in the community while still supported by the specialist services available through the correctional centre

· gain meaningful employment which may be ongoing upon release

· re-establish family relationships which have been affected

· assume financial responsibility for themselves and their families

· participate in external education and/or training

· make retribution to the community

contribute towards the cost of their incarceration.

30 18.1.4 of the Inmate Classification Placement and Procedures Manual provides as follows in relation to “External Leave Programs Available”:

The type of External Leave Program in which an inmate may participate is influenced by his/her security classification as indicated below:

*Escorted External Leave Programs*
Inmates need some level of supervision and are supervised by an officer (or some other person authorised by the Commissioner).	Male inmates: C2 security classification Female inmates: Category 2 security classification
*Unescorted External Leave Programs*
Inmates need not be supervised by staff and may be monitored by the PRPU.	Male inmates: C3 security classification Female inmates: Category 1 security classification

31 18.1.14 of the Manual provides as follows in relation to “Inmates of Interest to Immigration”:

18.1.14 Inmates of interest to immigration

When the nationality and/or the visa status of an inmate is unclear, s/he is not to be considered for C2/C3/Cat 2/Cat 1 security level until written confirmation clarifying the status of that inmate is obtained from the Department of Immigration & Multicultural Affairs (DIMA).

18.1.14.2 Unlawful non-citizens and temporary visa holders

Unless exceptional circumstances suggest otherwise (refer to s.18.1.15.3), no inmate should be considered for progression beyond C1/Cat 3 or for the issuing of a section 6(2) 26 Order enabling work or program activity outside a correctional centre.

18.1.14.3 Lawful non-citizens

Inmates who are lawful non-citizens having been granted an Australian Permanent Residency visa, including special category visa, but who have never been naturalised, may be considered for a section 6 (2) 26 Order/Leave Permit enabling work or program activity outside a correctional centre. Such inmates may progress to C3/Cat1 security level.

Advice from the DIMA should be included with documentation to the Serious Offender Review Council (SORC) for the Commissioner in the case of serious offenders and public interest inmates applying for C3/Cat1 security level. In the case of all other inmates who are seeking approval for a classification progression to C3/Cat1, advice from the DIMA should be included in the documentation to the Directors' Review Committee.

General

Additional caution must be applied with respect to any inmate within this category being considered for progression, having regard to the additional incentives to escape for inmates facing uncertainty about being removed or deported.

Where the DIMA notifies the Department and/or the inmate that s/he will be removed or deported from Australia at the completion of his/her custodial sentence, the inmate is to be regressed to a security classification no lower than C1/Cat3, and any section 6(2) 26 Order/Leave Permit is to be revoked.

Where the DIMA has issued an inmate with a Notice of Intention To Cancel their visa, any section 6(2) 26 Order/Leave Permit is to be withdrawn and the inmate moved to a location of a C1 / Cat3 security standard. A regression in classification is not automatic. The inmate is to remain in such a location pending a final decision by the DIMA on the inmate's status.

18.1.14.4 Exceptional circumstances

Exceptional circumstances will be considered by the Com missioner for serious offenders only when the inmate's application outlining exceptional circumstances is supported in writing by the General Manager of the centre in which the inmate is accommodated, and after considering a recommendation from the SORC.

Exceptional circumstances for non serious offenders, including public interest inmates, will be considered by the Directors' Committee (refer below). This will only occur when the application from the inmate outlining the exceptional circumstances is supported in writing by the General Manager of the centre in which the inmate is accommodated.”

32 It is not in dispute that the applicant was an unlawful non-citizen for the purpose of the policy, and that the policy applied to him at all material times. The effect of the policy is that unless he can demonstrate “exceptional circumstances”, the applicant cannot progress beyond Category “C1” security level, and is ineligible to be considered for a work order under s 6, or a local leave permit under s 26 of the Crimes (Administration of Sentences) Act.

Factual background

33 As noted at paragraph one above, the applicant is a citizen of Colombia. According to his affidavit filed in the proceedings, he was born on 20 June 1958. According to documents of the Department which were in evidence, the applicant was born on 5 June 1957. As well as being known as Carlos Contreras-Ortiz, the applicant is known as Jose De Jesus Boada Peneranda.

34 The applicant has been in the care, control and custody of the Commissioner at all relevant times since 28 April 1998. He is currently in custody at the Long Bay Correctional Complex (Metropolitan Special Programs Centre).

35 The tendered documents establish that on 6 January 1999, the Department undertook an Initial Case Plan and Security Risk Rating of the applicant. The Case Management Committee decided that he be given an “A2” security classification.

36 By letter dated 16 February 1999, the Criminal Deportation Section of the Department of Immigration and Multicultural Affairs notified Lithgow Correctional Centre (where the applicant was then held) that the applicant had been granted a bridging visa. The bridging visa would “maintain his lawful status for the period of imprisonment and any period during which he is the subject of a periodic release order.” The bridging visa did not prohibit work or study while the holder served his sentence. However, it would cease on unconditional release from imprisonment, escape from imprisonment, completion of any term of periodic release, breach of any conditions of periodic release, or release from remand. Upon cessation of the bridging visa, the applicant would become an “unlawful non-citizen and subject to immigration detention and removal.” Removal would be implemented as soon as practicable after the prisoner completed his sentence and/or term of periodic release.

37 On 11 January 2000, the applicant, who was then detained at Goulburn Correctional Centre, underwent a classification and case plan review. The Case Plan recorded in relation to “Employability Skills” that the applicant was working in the furniture/timber shop, and described his current performance as “Good worker”. His conduct was described as “Good general conduct.” The Case Management Team’s recommendation of an “A2” security classification was adopted by the Case Management Committee.

38 On 11 August 2000, the applicant was convicted of a federal offence and sentenced to 15 years, commencing from 28 April 1998.

39 In February/March 2001, there was a further classification and case plan review of the applicant, who was then detained at Lithgow Correctional Centre. Again, the Case Management Team recommended a security rating of “A2”, with a revised projected placement and classification in 2002 of “B”, in 2004 of “C1”, in 2006 of “C2”, and in 2007 of “C3’. Again, the “A2” recommendation was approved by the Case Management Committee.

40 In September 2001, on a further classification and case plan review, the applicant, still detained at Lithgow Correctional Centre, was described in his Case Plan as a “conscientious student who is using his gaol time to best advantage”. Again, the Case Management Team recommended a security rating of “A2”, with a recommendation that “B classification to be considered next review”. The Case Management Committee decided to confirm the “A2” security classification, with the comments “Good reports in all areas”.

41 The next available documents in relation to classification and case plan review of the applicant are dated August 2005. Despite the service of a summons to produce, the respondents were unable to locate documents in relation to the applicant for the period September 2001 to August 2005. However, the respondents accepted that the documents produced indicated that the applicant was “of more than good behaviour” throughout the entire period of his imprisonment.

42 On or about 19 August 2005, the applicant attended a meeting with officers of the Department for a six-monthly review of his case management, classification and placement at Mid North Coast Correctional Centre. The Case Management Team recommended that he progress to “C1” classification. The recommendation was supported by the General Manager. However, the decision of the Case Management Committee was that the applicant “remain B @ MNC. CMC rejects C1.” The Case Management Committee also noted that “Next review may see C1 at MNC”.

43 As noted, with effect from 1 November 2005, the policy applied to the applicant, with the result that unless he can demonstrate “exceptional circumstances”, he cannot progress to “C2” and “C3” security level, and cannot be considered for a work order or local leave permit enabling work or employment outside a correctional centre.

44 On 15 February 2006, the applicant attended a six-monthly case review meeting at Cessnock Correctional Centre. As a result of the review, the Case Management Team recommended a “C1” classification”, and described the applicant’s work goals as “Work towards work release”. Under the heading “Security and Placement Recommendations”, the Case Management Team noted: “Inmate has performed very well in Custody. Keen to gain C2 on earliest possible release date. Please advise earliest possible release date.” The Case Management Team’s recommendation was approved by the Manager/Deputy Manager Classification & Placement, who noted under the heading “Approval”: “1. Review of PRLC offender is approved. 2. Has very good reports. C2 may not be possible due to DIMIA Alert. Policy states he should remain C1 until this matter is sorted out.”

45 Departmental Case Notes for the applicant dated 24 March 2006 record that “inmate would like to know if he will get work release in community at any time during his sentence”.

46 On 9 August 2006, the applicant attended a further six-monthly case review meeting at Cessnock Correctional Centre. According to the “Review of Case Plan and Classification”, under the heading “Additional Comments: Work”: “Contreras-Ortiz is an enthusiastic and willing worker. He is punctual, conscientious and courteous”. The Case Management Team again recommended that the applicant’s classification remain “C1”, whilst noting “exc work reports”. The Case Management Team’s recommendation was approved by the Manager/Deputy Manager Classification & Placement, who noted under the heading “Approval”:

* 6 month R/v. Remain as is. EPRD 27/4/09.

* Will become an unlawful non-citizen at completion of sentence. DIMA letter 16/2/99

* Excellent work report noted. …”

47 Departmental Case Notes for the applicant dated 21 August 2006 record that “Would like to classo to C2, C3 DIMA (Immigration;) explained will not proceed to lower classo”.

48 On 8 November 2006, the applicant lodged his complaint with the ADB.

49 Departmental Case Notes for the applicant dated 5 December 2006 record as follows: “Inmate has problem – ongoing – RE: No works release inmate writing to different departments - … Inmate requests s C2 he says he meets the requirements - as above a ongoing situation with the department because of immigration.” Department Case Notes dated 3 February 2007 record “Classo due 13 Feb 07 inmate is awaiting Request – from Mr Woodham of class to C2 which he is not allowed due to immigration alerts. Inmate generally going well requires C2 for outside work opportunities”.

50 On 14 February 2007, the applicant attended a further six-monthly case review meeting at Cessnock Correctional Centre. His unchallenged evidence was that at this meeting, he had a conversation with an officer from the Department in words to the following effect:

Contreras-Ortiz: I want to move onto a C2 classification so I can start applying and working in section 6 jobs and eventually move towards a C3 so I can apply for better paid jobs.

Officer: Because you are a deportee you are not entitled to a C2 or C3 under the new policy by the Commissioner so you cannot progress beyond a C1.”

51 However, notwithstanding such a positive report, the Case Management Team noted the following under the heading “General Report”:

Has been working in Activities building as Library clerk and has had several positions. Inmate helps in other areas – Education – D&A and other areas without asking. Inmate has been working in area for a considerable time and is good influence on other workers in activities. Work performance is very high

52 However, notwithstanding such a positive report, the Case Management Team recommended that the applicant’s classification remain “C1”, with the following comments: “Of interest to DIAC”. The recommended “C1” classification was approved by the Manager/Deputy Manager Classification & Placement, with the following comments:

1. Review approved. ERD

2. PRLC Inmate subject to DICA removal order.

3. Reports @ CESS remain very good. Remain C1 as minimum requirement.”

53 The applicant relied on an affidavit sworn 27 March 2008, with annexures, and various tendered documents.

54 The respondents called evidence from Mr Domenic Pezzano, an officer of the Inmate Classification and Case Management Branch of the Department of Corrective Services, and Ms Anne Brady, senior correctional officer.

55 In his statement, Mr Pezzano gave evidence in relation to Departmental policy and procedures as to the classification, placement and case plans of inmates. Mr Pezzano confirmed that he was aware of only two occasions where inmates had satisfied the exceptional circumstances required to move from a C1 classification. In both cases, the inmates were female, had given to birth following their detainment in custody, and were approved for progression to the female equivalent of C2 classification due to placement on the Mother and Children’s Program at Emu Plains Correctional Centre with special security provisions.

56 During cross examination, Mr Pezzano accepted that the requirement to demonstrate "exceptional circumstances" was construed so as to impose a "very high threshold" (Transcript, day 1, page 54).

57 In her statement, Ms Brady gave evidence in relation to work release programs, including the requirement to be classified as a C3 inmate in order to be eligible for a work release program, the availability of work for inmates classified as C3, and the obligation of C3 inmates to pay the Department 15% of their income as rent and a rental fee of $38.50 per week for the electronic security anklet required to be worn on work release. Ms Brady also gave evidence as to the availability of paid work to inmates with C1 and C2 classifications within the confines of correctional centres, at a rate of pay in the range from $18 to $60 per week, and with no deductions for rent or fares and incidentals.

58 In cross-examination, Ms Brady was referred to Chapter 18 of the Inmate Classification Placement and Procedures Manual, as amended at December 2006, which provides at 18.3.1 that “Work Release/Education and Vocational Training Programs allow selected inmates to go to employment, education and vocational training in the community while continuing to serve the latter portion of their sentences in minimum-security conditions at various correctional centres”. In particular, Ms Brady was referred to the following passage: "Staff are to make every effort to assist suitable inmates to gain employment that is both meaningful and may be ongoing on release". Ms Brady agreed that she took that requirement seriously and complied with it, where possible, in performing her duties.

The Direct Discrimination Claim

59 The applicant submits that in relation to the direct discrimination claim, the following issues arise for determination:

race

(b) did the respondents treat the applicant less favourably than in the same circumstances (or in circumstances which are not materially different) the respondents treat or would treat a person of a different race (“the comparator issue");

(c) was any such treatment on the ground of race (“the causation issue”); and

(d) is the conduct made unlawful by one or more of the proscriptions that appear in Part 2, Divisions 2 or 3 of the AD Act (and, in particular s 19).

60 The respondents did not take issue with the applicant’s contentions in relation to the race issue, the comparator issue, and the causation issue. However, they disputed that their conduct was unlawful, contending that the classification process for the purpose of cl 22(1) of the Administration of Sentences Regulation is not a development program, nor a service within the meaning of s 19 of the ADA. The respondents submitted that whilst it is true to say that cl 22 “identifies that classification is for the purpose of security and the provisions of development programs, the fundamental function of the classification process is to enure the security of the correctional centre where the inmate is located”. According to the respondents, the applicant’s claim can only succeed if the Tribunal is satisfied that the process of classification is a “service” within the meaning of s 19 of the AD Act.

61 As to that part of the applicant’s claim which relies on s 12 and contends that the first respondent is a qualifying body, the respondents submitted that s 12 is intended to cover bodies or authorities such as the Boxing Authority of NSW “established to regulate the operation of specific activities.” The purpose of classification, it was submitted, is security, and not “issuing or acknowledging a “qualification” for the practice of a profession or occupation”. As to that part of the claim which relies on s 13 the respondents submitted that if it is accepted that the process of classification is not a service, it matters not whether or not the first respondent is an employment agency.

Race

62 The respondents did not dispute the applicant’s contention that the concept of “race” comprehends citizenship for the purposes of the AD Act. The applicant submitted and the respondents accepted that the word “nationality”, as used in the definition of “race” in s 4(1) of the AD Act, is synonymous with citizenship.

63 Section 4(1) of the ADA defines "race" non-exhaustively in the following terms: “colour, nationality, descent and ethnic, ethno-religious or national origin” (emphasis added). Similarly, anti-discrimination legislation in other States and Territories includes “nationality” in the definition of “race”: for example, s 4 of the EqualOpportunity Act 1995 (Vic); Schedule, Anti-Discrimination Act 1991 (Qld); s 4 of the Equal Opportunity Act 1984 (WA); s 5 of the Equal Opportunity Act 1984 (SA); s 3 of the Anti-Discrimination Act 1998 (Tas); Dictionary, Discrimination Act 1991 (ACT); and s 4 of the Anti-Discrimination Act 1992 (NT)): see Sydney University Postgraduate Representatives Association (SUPRA) v Minister for Transport Services [2006] NSW ADT 83 (“SUPRA”) at [53].

64 By contrast, the prohibitions and guarantees in the Racial Discrimination Act 1975 (Cth) (“RDA”) are not concerned with “nationality”. Section 9 of the RDA renders unlawful any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life (emphasis added). Section 10 of the RDA is concerned to ensure equality before the law of persons of another race, colour or national or ethnic origin (emphasis added).

65 In Macabenta v Minister of Immigration and Multicultural Affairs (1998) 90 FCR 202, the Full Court of the Federal Court (Carr, Sundberg and North JJ) dismissed an appeal in which the appellant contended that the primary judge erred in holding that the expression "national origin" in s 10 of the RDA did not include nationality. The Full Court held that the primary judge was right in construing nationality as equivalent to citizenship, but different from national origin. The Full Court observed at 207:

Citizenship (which for present purposes has been accepted as synonymous with nationality) is, in international terms, a universally recognised and understood concept or status. It is, of course, not the only personal status which international law recognises as being both capable of change and at the same time having no necessary connection with matters of race. Another which springs readily to mind is domicile, which may provide a useful analogy. The international community has long accepted that there is, on the one hand, a domicile of origin which remains forever available as a reference point of potential relevance, but not necessarily having any connection with race, and, on the other, a changeable domicile of choice again having no necessary connection with race

In our opinion, there would have to be very cogent reasons advanced why we should diverge from what we perceive to be a growing body of English and Australian authority and international learning in the field. That body of learning distinguishes between, on the one hand, "national origin" as an indicator of race and, on the other hand, nationality or citizenship as being a sometimes transient legal status

66 In SUPRA, the Tribunal adopted the approach of the Full Court in Macabenta, and held that the concept of “race” comprehends citizenship for the purposes of the AD Act. We respectfully concur in the analysis of the Full Court in Macabenta and the Tribunal in SUPRA on this issue. Accordingly, we are satisfied that “nationality” which is included in the definition of race in s 4(1) of the AD Act is synonymous with citizenship, and that the Act is concerned to proscribe certain forms of discrimination on the ground of citizenship.

The comparator issue

67 The next issue in connection with the direct discrimination claim is whether, as required by s 7(1)(a) of the AD Act, the respondents treated the applicant less favourably than in the same circumstances (or in circumstances not materially different) they treat or would treat a person of a different citizenship.

68 Again, the respondents did not put in issue the applicant’s contentions in relation to the comparison required in order to determine whether there has been differential treatment. However, since we do not consider this aspect of the applicant’s claim to be straightforward, it is appropriate to deal with his arguments in some detail.

69 On behalf of the applicant, it was submitted that he was treated less favourably than Australian citizens for the following reasons:

(b) the policy was applied to the applicant;

(c) the applicant was therefore treated less favourably than Australian citizens, to whom the policy did not apply.

70 The first question which arises in relation to the comporator issue, as formulated by the applicant and accepted by the respondents, is that the policy does not apply to all non-citizens. In particular, it does not apply to lawful non-citizens who may progress to C3/Cat 1 security level without demonstrating exceptional circumstances. Thus, 18.1.14.3 of the Inmate Classification Placement and Procedures Manual provides as follows in relation to lawful non-citizens:

Inmates who are lawful non-citizens having been granted an Australian Permanency Residency visa, including special category visa, but who have never been naturalized, may be considered for a section 6(2) 26 Order/Leave Permit enabling work or program activity outside a correctional centre. Such inmates

may

progress to C3/Cat 1

security

level

71 The applicant acknowledged that the policy does not apply to certain non-citizens, but submitted, in reliance on the Tribunal’s decision in SUPRA, that this does not detract from the conclusion that there was less favourable treatment.

72 In SUPRA, the applicants, who were full-fee paying overseas university students, complained that they had been discriminated against on the ground of race in relation to the provision of public transport services. In particular, they claimed that they were denied concessional travel on public transport on the basis of their nationality. The Tribunal upheld the claim, notwithstanding that non-citizen tertiary students who were Australian permanent residents, and New Zealand citizens, were entitled to concessional travel on public transport on the same basis as Australian citizens. The Tribunal held at [73] that it was sufficient to demonstrate that the applicants were treated less favourably than students of Australian nationality:

“... some full time university students other than people of Australian nationality were entitled to student concessions on public transport if they were excluded from the definition of 'overseas student' because they were Australian permanent residents, New Zealand citizens, or the family or staff members of a New Zealand diplomat. This fact does not detract from the conclusion that

were treated less favourably - than a student of Australian nationality would have been treated in same or similar circumstances. Even though some people other than those of Australian nationality were entitled to the student concessions to which all university students of Australian nationality were entitled (subject to satisfying the other eligibility criteria), it does not alter the fact that

were treated less favourably than a similarly placed university student of Australian nationality. Had they been of Australian nationality they would have been eligible for concessional travel on public transport.

73 Thus, on the approach in SUPRA, it is sufficient for the applicant to establish that he was treated less favourably than Australian citizens in the same or similar circumstances. In particular, the circumstance that other non-citizens with permanent visa status are not subject to the policy does not prevent a finding that the applicant was not subject to less favourable treatment.

74 Support for the Tribunal’s approach in SUPRA is also to be garnered from the language of s 7(1)(a) itself, which requires the aggrieved person to show that he or she has been treated less favourably than the perpetrator treats or would treat "a person of a different race". This provides a textual indication that the comparison is not required to be made with all persons of a different race, in other words, that the statutorily mandated comparison is not between all Australian citizens and all non citizens.

75 Given the textual support for the Tribunal’s approach in SUPRA to the comparator issue, and the fact that the respondents did not take issue with the applicant’s contentions in relation to it, we see no reason for departing from the approach in SUPRA, subject to one further matter. The further matter which arises in relation to the applicant's approach to the comparator question is that in Purvis v State of New South Wales (2003) 217 CLR 92 a majority of the High Court, in considering the language of s 5(1) of the Disability Discrimination Act 1992 (Cth) which is in similar terms to that of s 7(1)(a) of the AD Act, held that “all the objective features which surround the actual or intended treatment” of the aggrieved person are to be taken into account. In Purvis, the issue was whether the circumstances which were the same or not materially different included the violent behaviour of a student with a disability. Gummow, Hayne and Heydon JJ said at 161 [224]-[225] (McHugh and Kirby JJ dissenting):

The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there has been no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of the intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different ... In the present case, the circumstances in which

was treated as he was, included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils

76 Applying Purvis in the instant case, it is not possible to postulate a comparison of the circumstances of the treatment of the applicant with the “same circumstances” in which an Australian citizen would be treated. This is because Australian citizens in detention cannot be persons of interest to immigration, and are not vulnerable to exclusion or deportation under the Migration Act 1958 (Cth) at the end of their period of imprisonment: see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 29 per Brennan, Deane and Dawson JJ.

77 However, the applicant sought to identify various categories of Australian citizen inmates in "circumstances which are not materially different" to those of unlawful non-citizens. In particular, the applicant submitted that the most obviously analogous Australian citizen inmates are those subject to a risk of extradition at the end of their period of imprisonment. In relation to this category of inmates, Mr Pezzano accepted under cross-examination that:

a major risk factor

(b) there was no blanket policy which applies to persons under threat of extradition and seeking re-classification or work release to demonstrate "exceptional circumstances". Rather, Mr Pezzano accepted that the risk factor associated with the threat of extradition would be considered with all the other circumstances of the inmate in order to form a view as to whether the inmate should be progressed from one classification to another (Transcript, 7/4/08, pages 45.41-46.2).

78 In light of the respondents’ concession in relation to the comparator question, it was not argued before us that there are material differences between the circumstances of Australian citizen inmates subject to extradition at the end of the term of imprisonment, and who present a risk of escape in order to avoid prosecution and possible imprisonment in a foreign country, and the circumstances of non-citizen inmates who present a risk of escape to avoid, at the end of their imprisonment, deportation to a country of which they are citizens. In light of the respondents’ concession, and having regard to Mr Pezzano’s evidence, we are prepared to find that Australian citizens would be treated differently from the applicant in "circumstances which are not materially different".

79 The applicant also sought to rely on the evidence of Mr Pezzano in relation to the following categories of Australian citizen inmates, none of which is subject to a blanket prohibition of progressing to a C3 security classification unless they can demonstrate exceptional circumstances, and each of which, Mr Pezzano accepted, presents a level of risk:

(b) sex offenders for whom the risk assessment relates to the risk of re-offending (Transcript, 7/4/08, pages 46.29 - 47.26); and

(c) those inmates with a history of drug use and who, Mr Pezzano accepted, pose a risk of escaping for the purpose of bringing drugs back into a correctional facility (Transcript, 7/4/08, page 44.46). While such inmates are excluded from external leave programs for a period of 6 months, after that time, they are not required to demonstrate exceptional circumstances (Transcript, 7/4/08, pages 46.4 - 46.27).

80 We have some difficulty in accepting that inmates denied parole, sex offenders and inmates with a history of drug use are in "circumstances which are not materially different" to those of unlawful non-citizens. It is true that each category of inmate presents particular issues in terms of risk assessment. However, the nature of the risk posed by each category is in our view insufficiently similar to the nature of the risk posed by inmates subject to deportation at the end of a period of imprisonment to permit a conclusion, for the purpose of the comparison required to be undertaken by s 7(1)(a) of the AD Act, that their circumstances are not materially different.

81 However, given our conclusion in relation to the less favourable treatment of the applicant than an Australian citizen subject to extradition would be treated in circumstances not materially different, we do not consider that the analysis required by Purvis is an obstacle to the applicant's claim of direct discrimination. If the same or similar circumstances are identified as including the applicant's vulnerability to deportation and removal, it follows that the respondents have treated him differently from the manner they would treat an Australian citizen subject to deportation and who is not required to demonstrate exceptional circumstances.

Causation

82 In connection with the direct discrimination claim, there next arises to consider whether there exists the requisite causal connection between the applicant’s nationality and the less favourable treatment said to have been accorded to him. The requirement for such a connection arises from the words "on the ground of” which appear in the chapeau to s 7 of the AD Act. Again, the respondents do not put causation in issue.

83 The causation inquiry does not involve asking whether the discriminator acted with a discriminatory motive or intention to discriminate (even though in some cases evidence of motive or intention may assist in identifying the ground of or reasons for the treatment). Rather, as stated by Gummow, Hayne and Heydon JJ in Purvis, the central question is why was the aggrieved person treated as he or she was. As their Honours said at 163 (of the statutory language in s 5(1) of the Disability Discrimination Act 1992 (Cth)):

For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be – why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of

See also McHugh and Kirby JJ at 142-143 (in dissent); and discussion in SUPRA at [47]-[50].

84 In SUPRA at [75], the Tribunal held that:

“By adopting a policy which specifically referred to "full fee paying students" as a category of students who were denied the benefit of concessional travel which was granted to similarly placed students of Australian nationality, and bearing in mind the finding that to be an "overseas student" a person must be of a nationality other than Australian, it is self-evident that the applicants received differential treatment because of their nationality. The reason why they were denied concessional travel was because they were "full fee paying overseas students" and that is a categorisation which ultimately turns, primarily, upon nationality

85 The policy in issue in these proceedings similarly adopts the criterion of citizenship or nationality. Accordingly, we consider that as in SUPRA, it is "self-evident" that the applicant received differential treatment because of his nationality.

Section 19 of the AD Act: The services provided by the respondents

86 For the reasons given, we are satisfied that s 7(1)(a) of the AD Act is engaged. It is necessary next to consider whether the relevant acts or omissions of the respondents contravened one or more of the proscriptions in Part 2, Divisions 2 or 3 of the Act. In this regard, the applicant relies principally upon s 19, which is in the following terms:

It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which the other person is provided with those goods or services.”

87 This raises for determination whether the respondents are persons who provide (whether or not for payment) services. In particular, the question raised is whether some of the functions performed by prison authorities are capable of constituting services within the meaning of s 4 of the AD Act.

88 The term "services" is defined in s 4 of the AD Act in the following non-exhaustive terms:

“services

includes:

(a) services relating to banking, insurance and the provision of grants, loans, credit or finance,

(b) services relating to entertainment, recreation or refreshment,

(c) services relating to transport or travel,

(d) services of any profession or trade,

(e) services provided by a council or public authority,

(f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.”

89 The respondents take issue with the applicant’s contention that the applicant is being provided with a “service” within the meaning of s 19 of the AD Act. Their submissions on this point can be summarised as follows:

Crimes (Administration of Sentences) Regulation

“Each male inmate is to be classified in one of the following categories for the purposes of security and the provision of appropriate development programs ….

any fair reading of the Regulation, it is apparent that the fundamental purpose of classification is to ensure proper security for the detention of inmates

(b) while the provision of development programs is related to classification in that an inmate’s security classification will determine what programs and whether or not they may be undertaken, the classification process is not itself development program, nor a service within the meaning of s 19 of the AD Act.

90 The High Court has considered the meaning of the expression "services" when used in anti-discrimination legislation in two cases: Waters v Public Transport Corporation (1991) 173 CLR 349 and IW v City of Perth (1997) 191 CLR 1. Whilst both of those cases involved different statutory definitions in legislation from different jurisdictions, in each case various members of the High Court made statements of general application.

91 IW v City of Perth (1997) 191 CLR 1 involved a discrimination claim brought on behalf of an association of people with AIDS who had sought and been refused planning approval from the City of Perth to build a drop-in centre for people affected by AIDS. They alleged that the decision to refuse the planning permit discriminated against the group on the basis that its members had AIDS. The High Court found against the association. However, a majority held that the process by which a city council considered applications for planning approval and granted or withheld approval constituted the provision of services for the purposes of the Equal Opportunity Act1984 (WA). The WA Act defined the term “services” inclusively, in terms relevantly identical to s 4 of the New South Wales AD Act.

92 Brennan CJ and McHugh J (who took the narrowest approach) said at 191 CLR at 11-12 that a council considering planning approvals is not engaged in the provision of a service:

The term ‘services’ has a wide meaning. The Macquarie Dictionary relevantly defines it to include ‘an act of helpful activity’; ‘the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance’; ‘the organised system of apparatus, appliances, employees, etc, for supplying some accommodation required by the public’; ‘the supplying or the supplier of water, gas, or the like to the public’; and ‘the duty or work of public servants’. But wide as the definition is, in our opinion it is not capable of including a refusal to exercise the statutory discretion provided for by the Town Planning and Development Act 1928 (WA) and Clause 40 of the City of Perth City Planning Scheme to approve the use of premises for use other than as a shop."

93 Their Honours referred at 12 to s 18 of the Interpretation Act 1984 (WA) which requires preference to be given to the construction of a written law that would promote the purpose or object underlying that law to a construction that would not promote that purpose or object. Their Honours continued:

The injunction contained in s 18 of the Interpretation Act is reinforced by the rule of construction that beneficial and remedial legislation, like the Act, is to be given a liberal construction. It is to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical". Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural. But subject to that proviso, if the term "service", read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal, exercising jurisdiction under the Act, should hold that that activity is a "service" for the purpose of the Act

94 Brennan CJ and McHugh J emphasised the importance of the proper characterisation of the services in question, saying at 16-17:

In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides

95 Further at 18, they said:

The process by which the Council considers applications for approvals is not in our view arguably describable as a service that it provides to applicants for planning approval. Rather it is a power to process applications for the protection and general benefit of the residents of the City."

96 In the result, Brennan CJ and McHugh J distinguished between the exercise of a quasi-legislative role and a role of providing services. They considered that a “service” properly described as a deliberative process was not a service for the purposes of the AD Act.

97 The other members of the Court took a broader view. Dawson and Gaudron JJ considered that the term “services” was apt to include the administration and enforcement of a planning scheme. Their Honours observed at 191 CLR at 23 that “service” is a word of complete generality, and that it should not be given a narrow construction unless clearly required by definition or context. Dawson and Gaudron JJ held that the Council provided a service, but that it needed to be properly identified. They identified the service as "the exercise of a discretion to grant or withhold planning approval", and when so identified it was apparent that the Council had not failed to provide a service. The Council had considered the application for planning approval and had exercised its discretion, albeit contrary to the wishes of the association.

98 Gummow J took a similar approach to that of Dawson and Gaudron JJ, considering that the term “service” and its variants were of wide and varied meaning. His Honour referred at 41 to the work of a public servant as serving the State or community in a particular capacity. At 191 CLR at 44, Gummow J said:

"There is no reason in logic or good sense to deny the proposition that the Council may be engaged in the provision of services, not only to the community as a whole, but also to individual applicants who invoke the exercise of the powers of the Council under the town planning law. There is no dichotomy here between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions."

99 Like Dawson and Gaudron JJ, Gummow J held that the Council had not refused to provide the relevant service, since it had considered the application and refused it.

100 Toohey J dissented in the result. He agreed with Dawson and Gaudron JJ and Gummow J that the Council provided a service, but held that classifying the service as the consideration of applications for planning permits was too narrow. His Honour said at 191 CLR at 28:

"If the service is seen as the consideration of the application and its disposition and if it appears that the Council refused the application on the ground of impairment, why is that not discrimination ‘in the manner in which the first-mentioned person provides the other person with those ... services’? Consideration of an application is of itself hardly a service; it is the disposition of the application which either provides or refuses the service. In the manner of that refusal there may be discrimination."

101 Kirby J also dissented, concluding, at 191 CLR at 75 that the concept of “services” was extremely wide, and that it was wide enough to cover the administration and performance of statutory functions.

102 In the earlier case of Waters v Public Transport Corporation (1991) 173 CLR 349, McHugh J considered the issue of characterisation at length, and emphasised the importance of articulating with precision the service which is contended for. At 404-405, McHugh J said:

Accordingly, the goods or services which must be identified are those goods or services which are relevant to the complainant or any person or persons whom the complainant represents. Before there can be a finding of discrimination by a person in relation to the provision of goods or services, therefore, the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination. If a person is alleged to have refused to perform services, e.g., the services in question must be identified in sufficiently concrete terms to enable the Board to determine whether or not there has been a refusal to perform those services. What is a sufficiently precise identification of the service in one case may be too general in another. If the discrimination alleged was the refusal to allow impaired persons to travel on trams to St Kilda, it would be meaningless to identify the service provided as "the public transport system". If, however, the discrimination alleged was the refusal to allow impaired persons to travel on trams generally, "transportation of members of the public by trams" might identify the service with sufficient precision to enable the relevant issues to be resolved.

103 The meaning of the word "services" in s 4 of the Act has been considered by the NSW Supreme Court in two cases: Commissioner of Police, NSW Police Service v EstateEdward John Russell [2001] NSWSC 745 per Sully J; and Director-General, Department of Community Services v MM and another [2003] NSWSC 1241 per Barr J.

104 In the first of these cases, an Appeal Panel of this Tribunal had referred to the Supreme Court three stated questions of law, including: “(ii) Whether the conduct of the individual respondent constables in the course of their pursuance and arrest of Mr Russell amounted to the provision of a “service” within the meaning of section 19 of the Anti-Discrimination Act, and if so whether such a “service” within the section was provided by the appellants.” Sully J’s answer was: “(ii) No; but the subsequent failure of those police officers to afford Mr Russell the protection to which he was entitled in terms of section 6(3)(b) of the Police Service Act was conduct of the kind contemplated by section 19(a) of the Anti-Discrimination Act.” According to Sully J at [44], a correct assessment of the conduct of the individual police officers in the course of their pursuit and arrest of Mr Russell was as follows:

Police Service

Act 1990

(b) as soon as Mr Russell had been formally arrested, and had passed thereupon into police custody, the arresting police, and any police officer who had any part at all in the way in which he was subsequently handled, or who witnessed the way in which he was handled, became thereupon charged with a public duty to provide to him police services by way of the protection of his person from injury or death, and the protection of his property from damage “whether arising from criminal acts or in any other way”.

105 Sully J thus concluded that the police officers wholly failed, on the facts found by the Equal Opportunity Division of this Tribunal, to provide the services which they were bound to provide to Mr Russell pursuant to section 6(3)(b) of the Police Services Act.

106 In the second case, Director-General, Department of Community Services v MM and another [2003] NSWSC 1241, the question referred to the Supreme Court pursuant to s 118 of the AdministrativeDecisions Tribunal Act 1997 (NSW) for its opinion on a question of law was whether a Government department that deals with an application by a person to be appointed a foster carer provides a service for the purposes of the AD Act. Barr J answered the question “yes”. His Honour concluded at [44] that when the Department receives and deals with applications from those who wish to be foster carers it provides a service to the applicants in much the same way as a Local Government authority provides a service in dealing with development applications. In so concluding, Barr J noted the concession of counsel for the appellant that the Department provided a service to the children with whom it dealt, and continued;

41. … Obviously, to provide care, housing and other benefits is to provide services. However, the fact that a person provides a service directly for the benefit of one person does not mean that that service is not also provided for anyone else. As Sully J found in Commissioner of Police v Russell, police officers may in relevant ways provide a service to the community at large as well as to individuals. …

107 The question of whether activities conducted by a prison authority can constitute a service has been considered in a series of decisions of the Federal Magistrates Court, the Federal Court, and the Full Court of the Federal Court. In Rainsford v State of Victoria and anor (2004) 184 FLR 110 the applicant sought to characterise certain activities of the respondents in providing accommodation and prison related transport as services for the purpose of the Disability Discrimination Act 1992 (Cth). The respondents argued that prison management and control does not constitute a service, but is the core government function implementing the detention of people after the exercise of judicial power. As summarised by Raphael FM at [14], the respondents argued:

constitutes conduct which is an incident of detention. The actions of placing a prisoner in a particular cell accommodation and of transporting him from one prison to another are integral parts of the performance of the respondents' core function of detaining people. To this extent it is no different from the judicial function of sentencing or the administrative detention of an asylum seeker neither of which activities, they argue, were comprehended as a function of a service or facility. They argue the DDA does not prohibit discrimination in the exercise of statutory functions

108 Raphael FM accepted the respondents’ arguments, in effect ensuring a dichotomy between governmental activity conducted pursuant to discretionary powers (which his Honour held could be said to constitute a service) and activity conducted pursuant to a statutory duty (which his Honour held could not be characterised as a service). At [24], Raphael FM noted:

128 In light of the view we have reached as to the services provided by the respondents, as alleged in sub-paragraphs 11(a) to (d) of the Points of Claim, it is not necessary for us to decide whether the matters alleged in sub-paragraphs 11(e) and (f) of the Points of Claim amount to a service within the meaning of ss 4 and 19 of the ADA. However, it seems to us that the better view is that the text of clause 22 of the Regulation does not support the approach contended for by the respondents. Rather, it seems tolerably clear that clause 22, read literally as well as beneficially, contemplates a non-exclusive duality of purposes of classification. Consistent with clause 22, Chapter 14 of the Inmate Classification Placement and Procedures Manual (November 2005, Interim), entitled “Classification, Placement and Case Plan Reviews”:

The classification and placement of an inmate is part of a comprehensive and detailed case plan designed to address his/her individual and identified needs in response to offence(s) committed for which the inmate has been sentenced.

In carrying out the provisions of the legislation there is to be a presumption that an inmate will always obtain a significant rehabilitative benefit from programs, including external leave programs when motivated to participate.”

129 Accordingly, whilst we have no doubt that the classification process is absolutely fundamental to ensuring the security of the correctional system, we are also satisfied that classification can also be properly characterised as helpful or beneficial to inmates. Accordingly, we find that the respondents provided the service alleged in paragraph 11(e) of the Points of Claim and that, consistent with the decisions in IW and MM, they also provided the service alleged in paragraph 11(f).

130 Finally, as to paragraph 11(g) of the Points of Claim, we find that considering whether to exercise the powers conferred by sections ss 6 and/or 26 of the Crimes (Administration of Sentences) Act and/or clause 22 of the Regulation in relation to particular inmates is potentially helpful or beneficial to inmates, and hence ought be characterised as services within the meaning of ss 4 and 19 of the AD Act. The benefits to inmates approaching the end of their sentence of External Leave Programs, set out in 18.1.1 of the Inmate Classification Placement and Procedures Manual, include the following:

- re-establish themselves in the community while still supported by the specialist services available through the correctional centre

- gain meaningful employment which may be ongoing upon release

- re-establish family relationships which have been affected

- assume financial responsibility for themselves and their families

- participate in external education and/or training …

- make retribution to the community

- contribute towards the cost of their incarceration.”

131 Accordingly, we conclude that the respondents provided the service alleged in paragraph 11(g) of the Points of Claim and that, consistent with the decisions in IW and MM, they also provided the service alleged in paragraph 11(f).

132 Finally, in relation to this part of the applicant’s claim, it remains to consider whether the applicant was in fact, refused a service, as alleged in paragraphs 17, 20 and 23 of the Points of Claim. The respondents admitted the allegations in those paragraphs. It was therefore not in dispute that if, as we have found, the various matters alleged in paragraph 11 were in fact services, the respondents refused to provide them to the applicant, thus engaging section 19(a) of the AD Act. Alternatively, the respondents were only prepared to provide them to the applicant is he was able to demonstrate exceptional circumstances, thus engaging section 19(b) of the AD Act, which proscribes discrimination on the grounds of race in the terms on which a person is provided goods or services.

133 It is unnecessary for present purposes to consider authority on the question of when there will be a relevant "refusal" in the provision of services under a statutory power: see IW v City of Perth (1996) 191 CLR I at 24 and 45; and Ferneley v Boxing Authority of New South Wales (2001) 115 FCR 306 at [50] and [60]; compare AB v Registrar of Births, Deaths and Marriages (2006) 235 ALR 147 at 158 [64]-[66]; also AB v Registrar of Births, Deaths and Marriages (2007) 162 FCR 528 per Black CJ.

134 Overall, we conclude that the applicant’s complaint of direct discrimination in the provision of services, contrary to s 19(a) and (b) of the AD Act is substantiated.

Section 12 of the Act: The qualifying bodies provision

135 Further, or in the alternative, the applicant claims that the respondents have contravened the qualifying bodies’ provision in s 12 of the AD Act. In light of our conclusion that the respondents have breached s 19 of the Act, it is unnecessary for us to decide whether, in addition, there has been a breach of s 12. However, given that both parties made submissions on the question, it is appropriate to address this part of the applicant’s claim briefly.

136 First, it is to be noted that in construing s 12, the Tribunal is unassisted by any relevant statutory definitions or explanatory material. The applicant drew our attention to Ferneley v Boxing Authority of New South Wales (2001) 115 FCR 306. In that case, Wilcox J considered the interaction between the provisions of ss 18 and 22 of the Sex Discrimination Act 1984 (Cth) (“SDA”), which are relevantly similar to ss 12 and 19 of the AD Act. The New South Wales legislation in question made it an offence to box without registration. The same legislation made no provision for a female person to apply for registration. It was common ground in Ferneley that s 18 of the SDA (the equivalent of s 12 of the AD Act) was not available to the applicant since the respondent was properly to be regarded as the Crown in the right of New South Wales, and s 12(1) of the SDA provided that the Act did not apply to the Crown in right of a State unless otherwise expressly provided by the Act. Accordingly, the applicant contended that the respondent had contravened s 22 of the SDA (the equivalent of s 19 of the AD Act).

137 Wilcox J said at [61] that if s 22 of the SDA stood alone, he would have held that the Boxing Authority's failure to consider, on its merits, Ms Ferneley's application for registration was an act falling within s 22. However, s 22 did not stand alone, and although s 18 did not apply to the Boxing Authority, its existence had to be taken into account in determining the proper construction of s 22 and, in particular, the extent of the latter section's operation. At [64], Wilcox J said:

In the present case, it seems to me, Parliament made a special provision (s 18) concerning sex discrimination by authorities empowered to confer an authorization or qualification needed for engaging in an occupation. The general words of s 22, which might otherwise have been thought wide enough to cover such a case, must therefore be read down to the extent necessary to exclude cases covered by the special provision. As I have indicated, the words of s 18 cover this case. Whatever might be the position in relation to an application for exercise of a statutory discretion in respect of something not related to a person engaging in an occupation - for example, a permit to participate in an amateur boxing contest - s 22 does not cover applications for registration in respect of professional bouts

138 We do not consider that Ferneley has any present application. The decision did not deal with the AD Act. Moreover, it is significant that s 12 of the AD Act, unlike s 18 of the SDA, binds the Crown in right of the State by operation of s 5 of the AD Act. In our view, there is no reason to regard ss 12 and 19 as repugnant, or to detect any legislative intention that the special provision in s 12 exhaustively governs the subject matter of authorisation or qualification needed for engaging in an occupation, and that the general provision in s 19 encroaches impermissibly on that subject matter: see discussion by Deane J in Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat & Livestock Corporation (No 2) (1980) 44 FLR 455 at 468-469. Further, whilst we accept the applicant’s submission that Ferneley is authority for the proposition that an authority or body exercising statutory powers is capable of being characterised as an "authority or a body which is empowered to confer, renew or extend an authorisation or a qualification", we do not consider that the relevant powers of the respondents in the present case would be so characterised.

139 In particular, we do not consider that a local leave permit issued by the Commissioner pursuant to s 26 of the Crimes (Administration of Sentences) Act or an order made by the general manager of a correctional centre pursuant to s 6 directing a convicted inmate to carry out such work as the general manager considers suitable, would be characterised as the conferral, renewal or extension of “an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation”. Rather, in our view, statutory provision for such permits and orders is to be understood in the context of the provision to inmates of services and programs that:

(a) offer the inmate an opportunity to develop skills, behaviours and attitudes that lessen the likelihood of the inmate reoffending, or

(b) contribute to the inmate living in society after release from custody, or

(c) promote the health, safety and well-being of the inmate.”

see Clause 60 of the Regulation, and in particular subclause 60(2)(g) which provides that such services and programs may include pre-release and post-release programs to enable inmates to adapt to normal lawful community life.

140 In this context, External Leave Programs, as set out in 18.1.1 of the Inmate Classification Placement and Procedures Manual, are said to provide an opportunity for selected inmates approaching the end of their sentence to, inter alia:

- gain meaningful employment which may be ongoing upon release

- re-establish family relationships which have been affected

- assume financial responsibility for themselves and their families.

141 In our view, the provision of such opportunities to selected inmates would not be regarded as the conferral, renewal or extension of “an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation”, within the meaning of s 19 of the AD Act.

142 Rather, properly construed, the section applies to those persons who wish to practise an occupation in respect of which requirements to be registered with or obtain a license from a local authority apply. We do not need to and we do not express any concluded view on the matter, but consider that such bodies may well include the Nurses and Midwives Board, the statutory authority established under the Nurses and Midwives Act 1991 (NSW) responsible for the registration of nurses and midwives, the authorisation of nurse practitioners and midwife practitioners, and the enrolment of nurses in New South Wales. Another such body to which the section may apply is the Office of Fair Trading which issues licenses, inter alia, to persons wishing to person wishing to carry on business as a conveyancer pursuant to the Conveyancers Licensing Act 2003 (NSW) and the Conveyancers Licensing Regulation 2006 (NSW).

Section 13 of the AD Act: Employment agency services

143 Further, or in the alternative, the applicant claims the respondents have contravened the employment agency services provision in s 13 of the AD Act.

144 Section 4(1) of the AD Act defines “employment agency” as “a person who, for profit or not, provides services for the purpose of finding work or employment for others or for supplying employers with workers or employees.” In our view, the provision of services and programs to inmates, which may include pre-release and post-release programs to enable inmates to adapt to normal lawful community life, would not be regarded as the provision of “services for the purpose of finding work or employment for others or for supplying employers with workers or employees”.

145 In our view, the services which we have found to be provided by the respondents would not be characterised as provided “for the purpose of finding work or employment” etc. First, the purpose of the program provided would not be so narrowly defined. Second, there is no suggestion that in providing the services that it does, the respondents are doing so in any agency relationship with inmates. However, given our finding in relation to a contravention of s 19, it is unnecessary to express a concluded view as to whether there has also been a contravention of s 13.

Indirect discrimination

146 The applicant also alleges that the definition of indirect discrimination is engaged. Section 7(1)(c) of the AD Act defines indirect discrimination as follows:

A person (the

perpetrator)

discriminates against another person (the

aggrieved person)

on the ground of race if, on the ground of a person's race or the race of a relative or associate of the aggrieved person, the perpetrator:

…

(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply”.

147 The applicant contends and the respondents accept that four elements must be established to succeed on this part of the claim, namely:

(b) a substantially higher proportion of persons of a different race comply or are able to comply with that requirement or condition;

(c) the applicant does not or is not able to comply with that requirement or condition; and

(d) the requirement or condition was not reasonable having regard to the circumstances of the case.

148 The applicant alleges the imposition of a condition or requirement whereby the respondents and or their officers or employees were only prepared to take the steps there referred to if the applicant was not susceptible to removal or deportation under the Migration Act 1958 (Cth)/or was able to demonstrate exceptional circumstances. The steps referred to include authorising or permitting (and/or considering authorising or permitting) the applicant to participate in a development programme involving work outside Cessnock Correctional Centre, reclassifying (and/or considering reclassifying) the applicant as a Category C2 or C3 inmate, finding (and/or considering finding) work for the applicant outside Cessnock Correctional Centre, and/or considering exercising the powers or functions conferred by ss 6 and/or 26 of the Crimes (Administration of Sentences) Act or clause 26 of the Regulation.

149 The expression “requirement or condition” is to be construed broadly to encompass any form of qualification or prerequisite, although the actual requirement or condition should be formulated with some precision: Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 per Dawson J at 185; McHugh J at 195-196; Waters v Public Transport Commission per Dawson and Toohey JJ at 393; McHugh J at 406-407. In this respect, the legislation should be given a generous interpretation and an alleged discriminator not be permitted to evade the statutory prohibition of indirect discrimination by defining its services so as to incorporate the alleged requirement or condition: Waters v Public Transport Commission per Dawson and Toohey JJ at 394; Catholic Education Office v Clarke (2004) 138 FCR 121 per Sackville and Stone JJ at [104].

150 Further, it is unnecessary that a condition or requirement be explicitly imposed. As Sackville and Stone J observed in Catholic Education Office v Clarke (2004) 138 FCR 121 at [104]:

... an alleged discriminator may be found to insist on compliance with a 'requirement or condition' within s 6 even though the requirement or condition is not explicitly imposed. It is sufficient for the requirement or condition to be implicit in the conduct which is said to constitute discrimination: Waters v Public Transport Commission, at 360, per Mason CJ and Gaudron J; at 393, per Dawson and Toohey 11; at 407, per McHugh 1. Hence in Waters v Public Transport Commission itself, it was held to be open to the Victorian Equal Opportunity Board to find that the removal of conductors from Melbourne's trams amounted to a requirement or condition that disabled people could fully avail themselves of the services only if they could use the trams without the assistance of conductors: see at 361, per Mason C1 and Gaudron

151 The question of whether a person has imposed a particular requirement or condition is a question of fact: Waters v Public Transport Commission (1991) 173 CLR 349 per Dawson and Toohey at 394; McHugh at 408. On the facts of this case, we find that a requirement or condition as alleged by the applicant was imposed on the applicant. In his letter to the ADB of 19 February 2007, the first respondent referred specifically to the fact that the applicant (and other non-citizens in his position) faces impending deportation.

Substantially higher proportion

152 Section 7(l)(c) also requires a comparison to be made between persons of the race of the victim and persons “not of that race”. At paragraph 31 of the Points of Claim, the applicant alleges that a substantially higher proportion of person who are Australian citizens comply with or are able to comply with the pleaded requirement or condition.

153 To establish discrimination within the meaning of s 7(l)(c), it is necessary that there be a substantially higher proportion of people within the group of persons not of the applicant’s race who comply or are able to comply with the relevant requirement or condition: see Catholic Education Office v Clarke (2004) 138 FCR 121 at [111]-[112] per Sackville and Stone JJ. The required comparison is not with the aggrieved person, since that person’s ability to comply with the requirement or condition is addressed separately in the final words of s 7(1)(c). In any event, as Sackville and Stone JJ observed in Catholic Education Office v Clarke (2004) 138 FCR 121 at [111], it does not accord with the ordinary use of language to refer to the “proportion” able to comply with a requirement in relation to only one person.

154 There was no statistical evidence before us concerning the rates of compliance of Australian citizens and Colombian citizens with the requirement or condition that they not be susceptible to removal or deportation under the Migration Act 1958 (Cth)/or able to demonstrate exceptional circumstances in order that the respondents and or their officers or employees take the steps referred to. However, the Appeal Panel has accepted that the question of the rate of compliance may be determined by reference to "common knowledge": see s 144 of the Evidence Act1995. In Kumaran v Rail 1nfrastructure Corporation [2005] NSW ADTAP 41 the Appeal Panel said at [19]:

There was no statistical evidence supporting the Tribunal's finding that a substantially higher proportion of persons not of Mr Kumaran's race would have been able to comply with the requirement. Nor was there any statistical evidence that Sri Lankans would be less likely to be able to comply

155 In Kumaran, the Tribunal had found that the requirement imposed was that "in written work, certain matters be addressed (content), and written English be used (form), to a standard that, in Mr Gill’s view, would neither convey inaccurate information nor compromise the Division’s professional reputation." The Appeal Panel acknowledged the difficulty of comparing compliance rates of Sri-Lankans and non Sri-Lankans with such requirement (at [52]):

To the extent that the requirement meant having to anticipate, and to infer accurately from his corrections, how Mr Gill wanted matters expressed, people of any race might have been as unable as Mr Kumaran was to comply; as we noted above, some of Mr Gill's expectations appear to have been as much a matter of choice as a matter of correct grammar

156 Despite this difficulty, the Tribunal had concluded that a substantially higher proportion of persons not of Mr Kumaran's race would have been able to comply with the requirement. The Appeal Panel concluded that in coming to that view, the Tribunal must have accepted that it was common knowledge that people from nationalities whose first language is English would have substantially less difficulty complying with the requirement than those of Sri-Lankan nationality whose first language is not English. The Appeal Panel, although not bound by the rules of evidence, was of the view that that was a matter of common knowledge and not reasonably open to question (see s l44 of the Evidence Act 1995.

157 Similarly, we conclude that it is a matter of common knowledge, and not reasonably open to question, that a higher proportion of Australian than Colombian citizens could comply with the condition or requirement as alleged. It is not necessary to have regard to statistical evidence to conclude that an alien in detention is susceptible to removal or deportation under the Migration Act, whereas an Australian citizen is not.

Applicant’s ability to comply

158 The next question is whether the requirement or condition is one with which “the aggrieved person does not or is not able to comply”.

159 Insofar as the part of the alleged requirement or condition relating to susceptibility to removal or deportation is concerned, it is clear that the applicant is unable to comply with such condition or requirement. The evidence before us leaves little room for doubt that at the expiration of his imprisonment, the applicant is susceptible to removal or deportation.

160 As to the part of the alleged requirement or condition relating to demonstration of "exceptional circumstances", the evidence before us is that the applicant does not presently demonstrate such circumstances. That is a sufficient basis for us to conclude that the aggrieved person does not comply with the condition or requirement. As to whether the aggrieved person is able to comply with the condition or requirement, Mr Pezzano accepted that the requirement to demonstrate "exceptional circumstances" is construed to impose a "very high threshold".

161 A "broad” or "reasonably liberal” approach should be adopted to the question of ability to comply: Travers v State of New South Wales [2000] FCA 1565 at [17]; Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 56 at [51]. This does not go so far as requiring in every case that it be literally impossible for the applicant to comply with the requirement or condition: Travers v State of New South Wales [2000] FCA 1565 per Lehane J at [17] and authorities there cited. It is sufficient that the applicant was not in fact able to meet the very high threshold of demonstrating exceptional circumstances.

162 For these reasons, we find that the requirement or condition is one with which the applicant does not comply and to the extent that is necessary so to find, one which he is not able to comply.

Reasonableness

163 It remains finally to consider whether the requirement or condition was not reasonable having regard to the circumstances of the case. The principles to be applied when determining whether a requirement or condition is not reasonable having regard to the circumstances of the case are now well settled: State of Victoria v Schou [2004] VSCA 71 at [25], per Phillips JA (with whom Buchanan JA agreed; Catholic Education Office v Clarke (2004) 138 FCR 121 Sackville and Stone at [115]. As summarised by Sackville and Stone JJ in Clarke at [115], they include the following:

(i) The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances: Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, at 111, per Sackville J (with whom Davies and Beaumont JJ agreed), and the authorities cited there.

(ii) The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other: Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251, at 263, per Bowen CJ and Gummow J; Waters v Public Transport Commission, at 395-396, per Dawson and Toohey JJ; at 383, per Deane J. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74, at 82-83, per Lockhart J.

(iii) The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles, at 263. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Australian Medical Council v Wilson (1996) 68 FCR 46, at 61-62, per Heerey J; Commonwealth Bank v HREOC, at 112-113, per Sackville J.

(iv) The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discrimination of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement condition: Waters v Public Transport Corporation, at 395, per Dawson and Toohey JJ (with whom Deane J agreed on this point, at 383-384). However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable: Commonwealth Bank v HREOC, at 88, per Beaumont J; State of Victoria v Schou [2004] VSCA 71, at [26], per Phillips JA.”

164 The applicant referred to a number of matters in support of his contention that the Tribunal should conclude that the condition or requirement was not reasonable. First, it was submitted that the discriminatory effect of the requirement or condition is substantial. It was submitted that his inability to comply with the requirement or condition had resulted in further encroachments on his liberty and in other personal hardship being experienced by the applicant and his family. In this regard, the respondents submitted that the unfortunate circumstances of the applicant’s family as at 2006 were not caused or exacerbated by any discriminatory act of the respondents. Rather, it was submitted, “they would seem to have arisen as a direct result of the applicant’s criminal conduct and subsequent incarceration in a foreign country”

165 We accept that the applicant has found his inability to progress to a lower security classification to be distressing, and perceives the policy to be unfair and discriminatory. Indeed, we have found that he has been directly discriminated against by the respondents. We also accept that the applicant is concerned that because of his incarceration, he is unable to provide for his wife’s health treatment, and for an adequate and appropriate diet for his children, and for their clothing and education. On the other hand, we note that when his exceptional circumstances application was refused, the General Manager of Cessnock Correctional Centre noted that that the applicant was then working in the library, and that he could, but did not work in an area that earned more money. Further, it was noted that he had not “sent any money out”. Under cross-examination, the applicant said he had since sent out $120 on one occasion, and had applied to send out another $120. He also accepted that he received $100 on a fairly regular basis into his account by mail order from a pastor and friends in Australia and Colombia. He said that the same friends send money to his wife and children.

166 It was also submitted by the applicant that the reasons advanced by the respondents for the imposition of the condition or requirement were scant, and that the respondents had been unable to locate any contemporaneous documents in which the introduction of the policy was considered. We accept that the absence of any document recording consideration by the respondents of the circumstances perceived to require the introduction of the policy is somewhat surprising. However, we have regard to the first respondents’ letter to the ADB dated 19 February 2007 which identified the "flight and security risk" posed by persons in the position of the applicant. The respondents also submitted at the hearing that the prospect of deportation is a self evident risk factor. In this regard, the applicant gave evidence that he wishes to return to his family in Colombia and, as such, has no reason to escape from custody. However, as the respondents submitted, whether or not this is true in the case of the applicant, the applicant’s subjective intentions do not of themselves make it unreasonable for the respondents to regard the prospect of deportation at the conclusion of a custodial sentence as an incentive to escape.

167 In this regard, the applicant also challenged as “not necessarily valid” the assumption that a non-lawful citizen subject to deportation at the end of their imprisonment is more likely to escape. The applicant pointed to Mr Pezzano’s acceptance in cross-examination that a noncitizen escaping from custody may face a further period of imprisonment or refusal to grant parole, and submitted that that represented a considerable disincentive to a non-citizen who (like the applicant) is separated from his family. In our view, this submission is based on speculation. The reality is that any person escaping from custody may face a further period of imprisonment or refusal to grant parole. Moreover, separation from family is a hard but inescapable feature of the incarceration of all prisoners. It would be conjecture for the Tribunal to consider whether or not a person minded to seek to escape custody is likely to weigh the consequences to himself of recapture.

168 The applicant also referred to Mr Pezzano’s acceptance in cross-examination that frustration at the failure to procure a lower security classification may be a factor that leads an inmate to escape, and submitted that, as such, the policy may in fact increase the risks of escape. Again, in our view, this submission is based on speculation. While we accept that the applicant has found his practical inability to secure a lower security classification to be frustrating and distressing, we are unwilling to conjecture as to the relationship, if any, between unsuccessful classification applications and escapes from correctional facilities.

169 The applicant also referred to an e-mail from a Mr Tony Markham, apparently an officer of the Department, to Ms Liz Ball, a lawyer in the Employment and Administrative Law Branch of the Department in which Mr Markham advised that inmates such as the applicant “do present as a “Risk” of flight, but as with this inmate and many others like him, if they maintain good reports and follow centre routine they can be held in a minimum security facility such as Cessnock CC.” In our view, this email is equivocal as to the reasonableness of the policy, since it confirms both the risk of flight, as well as the appropriateness in many cases of a minimum security facility.

170 The statistical material tendered by the applicant was of limited utility in determining the issue of unreasonableness. That material included an extract from the Escapes Database maintained by the Department for all escapes from a New South Wales Correctional Centre between 1 November 2005 and 30 May 2007. That extract showed that of the 25 inmates who escaped during this period, 3 of these were non-citizens (or about 8%). One had escaped from the Metropolitan Remand and Reception Centre whilst on “Escort eg. Hospital/transfer”, one had escaped from Glen Innes Corrective Centre “Minimum Security”, and one had escaped from Metro Special Programs Centre (Minimum) “Minimum Security”. We were not provided with any precise figures concerning the percentage of non-citizens amongst the overall NSW prison population. However, the applicant tendered material which suggested that some 109 persons with citizenship recorded as “Not Australian” and with a known visa status were held in minimum security at some time during the period 1 November 2005 and 30 March 2007. The applicant also tendered a graph which showed that during the same period the total NSW Correctional Centre population ranged from about 8,820 to 9,490.

171 This material does not permit any particularly reliable conclusions to be drawn, particularly given that the total figure is for all correctional facilities, and the figure for non-citizens relates only to minimum security facilities. The Tribunal is not possessed of any information in relation to the number, if any, of non-citizens detained in other than minimum security facilities. However, it is apparent that the 109 non-citizens in minim security facilities during this period were a very small percentage of the overall NSW prison population of circa 9,000 prisoners; roughly 1.2%. Even assuming a reasonable number of non-citizens held in other than minimum security facilities, it is apparent that non-citizens represent a very small percentage of the NSW prison population, and that the number of non-citizen escapes during the period 1 November 2005 to 30 May 2007 (about 8%) is disproportionately high. Accordingly, we do not consider that the statistical material advances the applicant’s case in relation to the unreasonableness of the policy.

172 To the contrary, as the respondents submitted, the material establishes that there were 8 escapes from custody between November 2005 and March 2007 by inmates who were on external work programs. There were a total of 25 escapes from custody in the same period of time, and only one of those was from a high security situation. This data tends to suggest a greater opportunity to escape from custody when the prevailing security conditions are lower.

173 The applicant further submits that the financial burden of accommodating the needs of the applicant is minimal. In this regard, we accept, as Mr Pezzano conceded in cross-examination that the Department does not save money through the implementation of the policy in terms of the classification review scheme. That is because regular classification reviews continue to be conducted. As well, we accept that given that the number of non-citizen inmates is comparatively small, any change to the policy is unlikely to have significant financial impacts.

174 Finally, the applicant submitted that there are obvious less discriminatory means of achieving the respondents' objectives without recourse to the requirement or condition. In particular, the respondents could apply a case by case assessment process, being the process applied to Australian citizens who are considered to present a risk of escape. In cross-examination Mr Pezzano accepted that that was the process which was applied to non-citizen inmates prior to the introduction of the policy. The applicant also referred to other means of managing escape risk, such as the use of ankle bracelets and monitoring systems referred to by Ms Brady in her evidence.

175 We have found this issue of unreasonableness difficult to determine, in particular because of the paucity of material produced by the respondents which explains the introduction of the policy. Ultimately, however, the onus is on the applicant to demonstrate the unreasonableness of the requirement or condition. The statistical material, whilst not particularly extensive, does suggest a high proportion of non-citizens amongst prison escapees in New South Wales. Moreover, as submitted by the respondents, the policy set out in the Commissioner’s memorandum does provide for exceptions, and the Tribunal heard from Mr Pezzano of two occasions where requests citing exceptional circumstances were given favourable consideration. We do not consider that the applicant has discharged his onus of establishing that the condition or requirement was not reasonable in the circumstances.

Conclusions

176 For the reasons given, we have concluded that the respondents have contravened s 19(a) and (b) of the AD Act. We also find that by reason of such contraventions, the applicant has suffered loss or damage.

177 We note the orders sought by the applicant in his Points of Claim, however we have not heard any submissions in relation to the form of orders which the Tribunal should make in relation to remedies.

178 Accordingly, we direct the parties to file and serve within 7 days from the date of these reasons written submissions as to the form of orders in relation to remedies which are appropriate in light of the Tribunal's reasons and conclusions.

ORDERS

1. The complaint of direct race discrimination in contravention of s19(a) and (b) of the Anti-Discrimination Act 1977 (NSW) substantiated

2. The complaint of indirect race discrimination is dismissed

3. Parties to file within 7 days of these orders submissions as to the form of orders in relation to remedies which are appropriate in light of the Tribunal’s reasons and conclusions.

CITATION:	Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Carlos Contreras-Ortiz RESPONDENT Commissioner, Department of Corrective Services
FILE NUMBER:	071077
HEARING DATES:	7, 8 April 2008 13 May 2008
SUBMISSIONS CLOSED:	19 May 2008
DATE OF DECISION:	19 November 2008
BEFORE:	Pritchard S - Judicial Member; Hiffernan N - Non-Judicial Member; Monaghan-Nagle L - Non-Judicial Member
CATCHWORDS:	Race Discrimination - Goods and Services
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 (NSW) Anti-Discrimination Act 1992 (NT) Anti-Discrimination Act 1991 (Qld) Anti-Discrimination Act 1998 (Tas) Crimes (Administration of Sentences) Regulation 2001 (NSW) Conveyancers Licensing Act 2003 (NSW) Conveyancers Licensing Regulation 2006 (NSW) Crimes (Administration of Sentences) Act 1999 Crimes (Administration of Sentences) Act 2001 (NSW) Disability Discrimination Act 1992 (Cth) Discrimination Act 1991 (ACT) Equal Opportunity Act 1984 (WA) Equal Opportunity Act 1984 (SA) Equal Opportunity Act 1995 (Vic) Evidence Act 1995 Migration Act 1958 (Cth) Nurses and Midwives Act 1991 (NSW) Police Service Act 1990 (NSW) Race Relations Act 1976 (UK) Sex Discrimination Act 1975 (UK)
CASES CITED:	AB v Registrar of Births, Deaths and Marriages (2006) 235 ALR 147 AB v Registrar of Births, Deaths and Marriages (2007) 162 FCR 528 Australian Medical Council v Wilson (1996) 68 FCR 46 Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 Catholic Education Office v Clarke (2004) 138 FCR 121 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 11 Commissioner of Police, NSW Police Service v Estate Edward John Russell [2001] NSWSC 745 Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 Director-General, Department of Community Services v MM and another [2003] NSWSC 1241 Farah v Commissioner of Police of the Metropolis [1998] QB 65 Ferneley v Boxing Authority of New South Wales (2001) 115 FCR 306 Kumaran v Rail Infrastructure Corporation [2005] NSW ADTAP 41 Macabenta v Minister of Immigration and Multicultural Affairs (1998) 90 FCR 202 Purvis v State of New South Wales (2003) 217 CLR 92 Rainsford v State of Victoria and anor (2004) 184 FLR 110 Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat & Livestock Corporation (No 2) (1980) 44 FLR 455 Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 Sydney University Postgraduate Representatives Association (SUPRA) v Minister for Transport Services [2006] NSW ADT 83 Victoria v Schou [2004] VSCA 71 Waters v Public Transport Corporation (1991) 173 CLR 349 and IW v City of Perth (1997) 191 CLR 1
REPRESENTATION:	APPLICANT C Lenehan, barrister RESPONDENT E Brus, barrister
ORDERS:	1.The complaint of direct race discrimination in contravention of s19(a) and (b) of the Anti-Discrimination Act 1977 (NSW) substantiated 2.The complaint of indirect race discrimination is dismissed.Parties to file within 7 days of these orders submissions as to the form of orders in relation to remedies which are appropriate in light of the Tribunal’s reasons and conclusions.