Khan v Commissioner, Department of Corrective Services

[2000] NSWADT 72

Set aside by Appeal: Set aside by appeal on 18/1/2001 - Remitted back to Tribunal

CITATION:

Khan -v- Commissioner, Department of Corrective Services & anor [2000] NSWADT 72

DIVISION:

Equal Opportunity Division

PARTIES:

APPLICANT
Rahiman Khan

FIRST RESPONDENT
Commissioner, Department of Corrective Services

SECOND RESPONDENT
Managing Director, Australasian Correctional Management Pty Ltd

FILE NUMBER:

001006; 001007

HEARING DATES:

26/05/2000

SUBMISSIONS CLOSED:

05/26/2000

DATE OF DECISION:

06/08/2000

BEFORE:

King P - Judicial Member; Farmer L - Member; Nemeth de Bikal L - Member

APPLICATION:

Race Discrimination - Goods and Services - Victimisation

MATTER FOR DECISION:

Principal matters

LEGISLATION CITED:

Anti-Discrimination Act 1977

CASES CITED:

Mandla v Dowell Lee (1983) 2 AC 548
Waterhouse v Bell (1991) 25 NSWLR 99
Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92 808
Commonwealth v Human Rights and Equal Opportunities Commission (1997) 147 ALR 469
A v Department of School Education [2000] NSWADT 59

REPRESENTATION:

D Hillard, solicitor
N Yetzotis, solicitor

ORDERS:

Applications dismissed.

1 On 23 March 1999 the Anti-Discrimination Board of New South Wales received the first of several complaints under the Anti-Discrimination Act 1977 (“the Act”) from the Applicant, Mr Rahiman Khan, alleging discrimination against the two Respondents on the grounds of race and victimisation. Attempts to resolve the complaints through conciliation were unsuccessful and they were subsequently referred to the Administrative Decisions Tribunal, Equal Opportunity Division under s.94(1) of the Act.

2 A summary of the complaints is found in the President’s report which for the purposes of the present determination together with the agreed facts is to be taken as the basis for resolution of the dispute currently before the Tribunal. At the time of the original complaint Mr Khan was an inmate of Junee Correctional Centre which is a private prison run under contract from the First Respondent by the Second Respondent. He is a person who subscribes to the Muslim faith and strictly obeys Islamic dietary laws which govern the types of food he can eat and the way in which animals are slaughtered for meat consumption. These dietary laws are laid down in the Koran, the primary biblical text of those adhering to the Muslim religion. The food which is prepared in accordance with these laws is referred to as Halal. In particular, that food must not contain pork or any pork derivatives and the food, having been prepared in the appropriate fashion, must be the subject of prayers by a recognised Muslim religious leader.

3 Mr Khan alleges that he has been discriminated against by the Respondents because the Commission and the Centre have failed to provide him with Halal food on the same or similar terms as they provide food to inmates not of his ethno-religious background. He further alleges that he has been victimised in various ways as a result of complaining about the lack of provision of Halal food. It is acknowledged that disposition of the victimisation complaint depends upon that of the discrimination complaint. In this regard it is alleged that the Applicant was placed in segregation for no reason, was assaulted by prison officers with his food supplies in his cell confiscated without reason.

4 Following correspondence from the Anti-Discrimination Board, the Commission and the Centre responded to Mr Khan’s allegations denying that he had been discriminated on the basis of his race, or victimised. The Commission, which has represented the interests of both Respondents in this hearing, states that it has a policy of allowing inmates with dietary needs such as kosher diets and Halal diets, to purchase their own provisions through the prison buy-up system, a system which is fair and reasonable in the circumstances. They state that the decision to transfer Mr Khan from one prison to another was for his own safety, given that he had made complaints about being assaulted by prison officers by reason of his complaints of discrimination. These would be issues for a final hearing. For present purposes the First Respondent acknowledges the correctness of the allegations stated in the President’s report and says that if its conduct is discriminatory it is on a ground that it is not unlawful.

5 By agreement between the legal representatives for the parties, two preliminary questions have been referred to the Tribunal for determination. The first is whether as a Muslim the Applicant falls within the definition of “race” in the Act, s.4. The second is, if the answer to the first is in the affirmative, is the complaint properly characterised as being discrimination on the ground of race. If the answer to the second question is no, it is agreed by the Applicant that the applications should be dismissed. If the answer is yes, then it is agreed by both parties that the matter should be referred to mediation with an indication by the Respondents that the adverse determination on the question will be taken into account in making an appropriate offer.

6 The Act provides:

“What constitutes discrimination on the ground of race
7.(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;

(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 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 person of that race.

Provision of goods and services

19. 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 this goods or services, or

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


Victimisation

50.(1) It is unlawful for a person (“the discriminator”) to subject another person (“the person victimised”) to any detriment in any circumstances on the ground that the person victimised has:


(a) brought proceeding against the discriminator or any other person under this Act;
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act;
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act;
(e) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.”

7 Race is defined by s.4(1) of the Act as follows:

“s.4(1) In this Act, except insofar as the context or subject matter otherwise indicates or requires:
“race” includes colour, nationality, descent and ethnic, ethno-religious or national origin”.

8 The word “ethno-religious” appears to be unique to the definition of race in s.4(1) of the Act. It does not appear in the Macquarie Dictionary. Nor is it found in the shorter Oxford English Dictionary. The word “ethnology” appears in the latter as being “a science which treats of races and peoples, their relations, their distinctive characteristics, etc”. The etymology of the related word “ethnic” is the Greek word for “heathen” which itself derives from an earlier Greek word for “nation”. The OED definition limits the meaning of races and nations contemplated by the word “ethnic” to those that are not Christian or Jewish, ie. those that are Gentiles or heathens. It is doubtful that the word has that meaning in Australia today. The word “religious” is defined similarly in both dictionaries as meaning “imbued with religion; exhibiting the spiritual or practical effects of religion” and also “of the nature of ... or connected with religion”.

9 In support of the contention that the phrase “ethno-religious origin” in s.4 brings within the definition of “race” in the Act all Muslim peoples, being approximately 25% of the human race, the Applicant has cited the second reading speech of the Attorney General in introducing the 1994 amendments to the Act which included a change in the definition of race to include “ethno-religious” origin. The Attorney General explained the provision as follows:

“Schedule 1 to the Bill contains amendments relating to the definition of race contained in the Anti-Discrimination Act. Section 4 of the Anti-Discrimination Act will be amended so that the existing definition of race will include the concepts of descent and ethno-religious origin ...

The effect of the latter amendment is to clarify that ethno-religious groups, such as Jews, Muslims and Sikhs have access to the racial vilification and discrimination provisions of the Act. At present, it is not clear whether the racial vilification and discrimination provisions cover such groups, although this would appear to be the position at common law.

The amendment will make it clear that vilification or discrimination begins to person based on ethno-religious origin falls within the protections against racial discrimination and racial vilification currently contained in the Act. The amendment is in line with existing judicial authority from both New South Wales and overseas which indicates that ethno-religious background is included in the concept of race” (NSW Hansard 4 May 1994, pages 827-828.

10 Bearing in mind the absence of any definition of the word “ethno-religious” in the standard dictionaries, and the ambiguity inherent in the combination of the two words “ethnic” and “religious”, it seems to us that the phrase is “ambiguous or obscure” within the meaning of the Interpretation Act 1987 (NSW) s.34(1)(b)(i), entitling us to have reference to the second reading speech of the Attorney General (Interpretation Act 1987 s.34(2)(f)). Having had reference to that address, it seems to us that all adherents to the Muslim religion are entitled, pursuant to the 1977 Act, to be considered to be a racial group for the purposes of that legislation. This is notwithstanding that some Muslims may have converted from other religions or be indistinguishable racially from other persons not of Muslim faith, or be distinguishable from other members of the Muslim religion in racial terms, even having regard to the type of biological considerations referred to by Lord Fraser in Mandla v Dowell Lee (1983) 2 AC 548. Accordingly we answer the first question in favour of the Applicant.

11 The second question is whether or not, on the assumption that a person of the Muslim faith is to be treated as a member of the Muslim race for the purposes of the 1977 Act, the conduct alleged by Mr Khan is unlawful. This depends on whether or not the conduct occurred “on the ground of” race within the meaning of the Act. The difference between the first and second inquiries was discussed by the Court of Appeal in Waterhouse v Bell (1991) 25 NSWLR 99 which was considered by the Equal Opportunities Tribunal in Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92 808 at page 7,8974ff and in Commonwealth v Human Rights and Equal Opportunities Commission (1997) 147 ALR 469.

12 Further refinement of this question was introduced by s.4A of the Act which provides that:

“If:
(a) an act is done for two or more reasons, and
(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reasons for doing the act),
then, for the purposes of this Act the act is taken to be done for that reason.”

It follows from this provision that so long as a reason for the conduct alleged against the Respondents, assuming that it had the adverse consequences claimed by the Applicant, is the race of the Applicant, whether or not it is the dominant reason, the case for wrongful discrimination has been made out.

13 In the present case the Respondents claim that they have acted in accordance with s.7 of the Operations Procedures Manual of the relevant detention Centre, which is headed “Dietary constraints on the basis of Religion”. Clause 2.5 of paragraph 34 notes that where an inmate is recognised as a member of the Jewish faith and requires a Kosher diet, the centre will provide cutlery consistent with security guidelines, cooking implements to enable the inmate to prepare his or her own meals, whole fruit and vegetables and preparation of meat subject to cost, availability and transport issues. Nothing is said in that manual regarding food which is required to be prepared in accordance with the dictates of the Koran. The Applicant’s case is that as members of the Jewish faith are given favourable treatment under the manual this provides a proper basis for a finding that there has been discrimination against him because he has been refused food prepared in accordance with the Koran.

14 The question before us however is not whether the conduct of the Respondents is fair. It seems to us that it is not and may even be described as unfortunate, that different faiths are identified and dealt with differently for the purposes of dietary preparation and service of foods in New South Wales prisons. The question before us is whether that conduct is unlawful. That depends on whether or not the conduct of the Respondents is characterised as having occurred on the ground of race.

15 We are of the view that the conduct of the Respondent in the circumstances of this case in refusing to serve food to the Applicant in accordance with the requirements of the Koran was not on the basis of “ethno-religious origin” but on the ground of the Applicant’s religion. That being so, a case for discrimination has not been made out. As Lord Fraser explained in Mandla v Darrell Lee (1983) 2AC 548 at 554ff, ethnic origin itself involves a racial connotation and not simply a cultural interpretation. There is no evidence before us as to the precise nature of the derivation of the requirements with respect to Kosher foods although there were suggestions in the argument that it was as much cultural as religious. With respect to Halal foods, it is clear that the dictates of the Koran itself, the primary religious document of all Muslims, are the source of the requirement that food be prepared, served and eaten in a certain way. It is the failure of the prison authorities to comply with the requirements of the Koran which are not referred to in the Manual that is complained of. In our view this is discrimination on religious grounds not by reason of ethno-religious origin.

16 The Act draws a careful distinction between religious and racial grounds proscribing the latter but not the former. That was recognised in the recent decision of A v Department of School Education where it was stated at page 59 of the decision: “Simply because the Applicant is a member of a “race” due to ethno-religious origin does not enable the Applicant to take proceedings under the Act on the ground of religious discrimination, because it is an element of the definition of race, which he has attempted to do in this case” (sic).

17 In the circumstances, bearing in mind the agreement between the representatives of the parties as to how the matter should be dealt with, we propose to dismiss the complaints of discrimination. The Tribunal dismisses the applications.