Murray v Commissioner of Corrective Services, New South Wales Department of Corrective Services - [2011] NSWADT 128

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Murray v Commissioner of Corrective Services, New South Wales Department of Corrective Services [2011] NSWADT 128
Hearing dates: 15 and 16 March 2010, 24 and 25 May 2010 and 5 August 2010
Decision date: 31 May 2011
Jurisdiction: Equal Opportunity Division
Before: Judicial Member E Grotte,
Non-judicial L Monaghan-Nagle,
Non- Judicial Member N Hiffernan
Decision:
The complaints of discrimination on the ground of race in the provision of goods and services are not substantiated and are dismissed

Catchwords: Race Discrimination - Provision of Goods and Services
Legislation Cited: Anti Discrimination Act NSW 1977
Evidence Act 1995
Cases Cited: Burns v Laws (EOD) [2008] NSWADTAP 32 Qantas Airways v Gama [2008] FCAFC 69
Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27
Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26
Dutt v Central Area Health Service [2002] NSWADT 133
Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5I
W v City of Perth (1997) HCA 30
Category: Principal judgment
Parties: Allan David Murray (applicant)
Commissioner of Corrective Services, New South Wales Department of Corrective Services (respondent)
Representation: Ms Phillipa Gormly for applicant
Ms T L Jowett for respondent
Logical Legal for applicant
Glenn Singer for respondent

File Number(s): 091016

REasons for decision

Background and the Claim

On 5 December 2007 the Anti Discrimination Board, the ADB, received a complaint from Allan David Murray. On 2 September 2008 the ADB received two further complaints from Mr Murray. The complaints concerned employees of the New South Wales Department of Corrective Services, the respondent. Mr Murray has alleged discrimination on the ground of race in the provision of goods and services to him by the respondent in respect of actions of its employees, for which Mr Murray claims the respondent is vicariously liable pursuant to section 53 of the New South Wales Anti Discrimination Act, 1977 (the ADA).

Mr Murray is an Aboriginal person and has identified himself as a member of the Stolen Generations. Mr Murray's complaints are cast as direct discrimination and he relies on sections 7 and 19 of the ADA. Mr Murray was at all material times an inmate of Long Bay Gaol.

There is no dispute between the parties that Mr Murray is an Aboriginal person and that he is a member of the Stolen Generations and that the respondent was at all material times providing "services" to him for the purposes of section 19 of ADA.

The First Complaint

Mr Murray's first complaint concerned his parole officer, Vincent Fitzsimmons. Mr Murray alleged that Mr Fitzsimmons wrote a report to the Parole Authority about him "as if he were an Englishman" without any evidence of empathy or understanding of his Aboriginality. Mr Murray alleged that Mr Fitzsimmons discriminated against him on the ground of his race by failing to show him empathy, sympathy or understanding as he would have shown a comparator, when Mr Murray told him of the deaths of his only son and of his sister, and that he had not been allowed by the respondent to attend their funerals.

Mr Murray alleged that at about 1:40pm on 26 November 2007 he attended a meeting with Mr Fitzsimmons, who told him that he wanted to discuss a report he was preparing for Mr Murray's pre-parole hearing, which was to take place on 27 December 2007. The full parole hearing was scheduled to occur on 27 February 2008.

Mr Murray alleged that Mr Fitzsimmons questioned him about his personal life, his convictions and sex-offender programmes, as well as about recently-deceased members of his family, being his older sister and his only son. He alleged that Mr Fitzsimmons did not appear concerned that Mr Murray had not been able to attend their funerals. He alleged that Mr Fitzsimmons said to him:

"You are in prison because you have raped an Aboriginal woman, which makes you an Aboriginal rapist."

Mr Murray stated that he explained to Mr Fitzsimmons that he had pleaded guilty to the offence and had apologised to the victim and had taken her to a medical centre to be treated. Mr Murray stated that he was participating in a sex-offender programme, in which he claimed he was being taught not to characterise victims in a biased manner.

Mr Murray claims that he tried to inform Mr Fitzsimmons about his background of deprivation, cruelty and injustice that he had suffered as a child and as a member of the stolen Generations. Mr Murray alleged that Mr Fitzsimmons responded as follows:

"None of that stuff affects me because I was born in England."

Mr Murray alleged that Mr Fitzsimmons discriminated against him on the ground of his race because he treated him differently than he would have treated someone of a different race in similar circumstances, by disturbing his equilibrium and causing him hurt and humiliation.

According to Mr Murray his meeting with Mr Fitzsimmons was terminated abruptly when he refused to provide written consent to enable Mr Fitzsimmons to access Mr Murray's medical file. Mr Murray claims that he refused consent because he was fearful that Mr Fitzsimmons would be judgmental.

The Second Complaint

Mr Murray's second complaint concerned Ms Deborah Markou, his temporary probation and parole officer. He alleged that she discriminated against him because of his race by failing to show the same empathy as she would have shown inmates of a different race and by failing to maintain a professional distance from him.

Mr Murray alleged that on 5 February 2008 he was approached by Ms Markou. He claims that she insisted that they sit together in the visitor's area to talk about his parole. He claimed that she told him that "someone" on the Parole Authority "wanted to hear" from him at the parole hearing, which was due to take place on 28 February 2008. Mr Murray said that Ms Markou seemed agitated and that she was holding a thick bundle of documents pressed close to her chest.

Mr Murray asked Ms Markou about Mr Fitzsimmons. She told him that Mr Fitzsimmons was no longer available and that she was now his parole officer. Mr Murray claims he told Ms Markou that he was aware that the Parole Authority had already decided to refuse him parole because of Mr Fitzsimmons's biased reports about him and that he wished to have his case manager present in any further dealings with Mr Fitzsimmons regarding his parole. Mr Murray also told Ms Markou that he had requested an Aboriginal parole officer.

Mr Murray alleged that Ms Markou became very agitated and abruptly dumped the thick pile of documents she had been holding onto the table in front of him, demanding that he sign them. He noticed the documents were the parole reports prepared by Mr Fitzsimmons. He asked her to wait until his case manager could be found. He claims that Ms Markou said "No" in a loud voice. Ms Markou began to read extracts from the documents in order to justify Mr Fitzsimmons's recommendation that parole be refused. Mr Murray stated that he refused to sign the documents, because some of the information was, in his opinion, biased, false and misleading.

According to Mr Murray, Ms Markou raised her voice again and consequently, he walked away from her to his work area in the storeroom, which is a small room with shelves on both sides and a fridge opposite the door. Some moments later he heard a loud bang behind him, when Ms Markou dumped the documents onto a shelf directly behind him.

Mr Murray felt threatened by her behaviour, so he reported the incident. Some minutes later Ms Markou returned to the office with another senior officer but Mr Murray again refused to sign any of the documents prepared by Mr Fitzsimmons. Later, on his way to his room for lockdown following the lunchtime muster, he encountered Ms Markou again. She was no longer aggressive towards him but appealed to him to sign the documents, stating that if he did not, he would not achieve parole. He again refused.

Even later, upon returning to his workplace, he encountered Ms Markou in the company of Ms Michelle Jordan, the head of the respondent's parole unit. A meeting took place which included Mr Murray, Ms Markou, Ms Jordan, the Deputy Governor and an Aboriginal prison delegate regarding the signing of the documents for the Parole Authority hearing. Mr Murray maintained his refusal on the basis that the reports were biased against him and that, in any event, if the Parole Authority wanted to hear from him, his consent was not required.

Mr Murray asked Ms Jordan about his request for an Aboriginal parole officer and about his query regarding the correct expiry date for his non-parole period. She told him that she would apply on his behalf. She confirmed the non-parole period expiry date was 27 February 2008 and that his attendance was required at the hearing on 28 February 2008. Ms Jordan confirmed he needed to sign the documents.

On 11 February 2008 Mr Murray requested a written reply to his application for an aboriginal parole officer. Later that day Ms Markou told him that she had arranged for Craig Madden, the Aboriginal Welfare Officer, to speak to him about parole matters on 12 February 2008, but Mr Madden did not attend on that day.

The Third Complaint

On 13 February 2008 Mr Murray was in his prison cell watching the televised broadcast of the apology by the then Prime Minister, Mr Kevin Rudd, to the Stolen Generations, when he heard his name called over the public address system to attend the central office.

Ms Markou was at the central office with a senior custodial officer and she insisted that she have a meeting with Mr Murray at that time to discuss parole matters. He told her it was not a good time, because he was watching the apology and he believed that it was disrespectful to discuss such matters at that time. Mr Murray stated that at the time he had been reflecting on his own experiences as a child of the Stolen Generations with mixed emotions. He asked Ms Markou to wait until the following day or another day, because he felt as if he had been attending a funeral. He was deeply moved by the apology and contemplating the injustices of the policies and actions which had been responsible for the removal of children from their parents. He stated that he had been feeling deep sorrow and was aggrieved by what had happened. Mr Murray described Ms Markou as dismissive and stated that she ignored his concerns or feelings about the apology.

Mr Murray stated that Ms Markou was concerned only about the fact that she was working part-time and that he needed to sign the documents for the parole hearing that day because she would not be available the following day. He stated that he felt that Ms Markou was mocking him. He felt under duress and that her words carried a cruel edge. He claimed that she had deliberately chosen the Sorry Day in order to humiliate him and demean him, causing him shame and to experience feelings of helplessness and worthlessness.

The Progress of the Complaints

The ADB wrote to the respondent seeking responses to the complaints. The allegations were denied.

On 25 January 2008 the Commissioner wrote to the ADB stating in summary as follows:

- Mr Murray had been ambivalent about attending his son's funeral and did not apply in time to obtain permission to attend, as required by the known policies and procedures. Additionally, Mr Murray had refused to travel to the funeral in a prison truck with the Manager of Security;

- As Mr Murray's parole officer, Mr Fitzsimmons was responsible for the preparation of the pre-release report for submission to the State Parole Authority. Mr Fitzsimmons denied characterising Mr Murray in the manner alleged. He intended to encourage Mr Murray to discuss his offending behaviour in order to face the reality of the reason for his incarceration, that is, his conviction for the sexual assault of an Aboriginal woman;

- Mr Murray consistently presented his status as a member of the Stolen Generations as a means of avoiding addressing his own behaviour;

- A parole officer's role is to encourage inmates to address their offending behaviour appropriately, so that a positive recommendation for parole could be made. Mitigating factors are considered in relation to sentencing and are addressed by the court, not by a parole officer or the State Parole Authority;

- Mr Fitzsimmons vaguely recalled mentioning that he had been born in England, but could not recall the exact circumstance and denied the allegation. Mr Murray's case management file indicates that parole officers had offered Mr Murray placement in treatment programmes and suggested counselling to assist him to address issues, but all offers had been refused;

- It was noted that at the time of the response, Mr Murray was participating in a PREP course, which is a motivational course, not a sex offender treatment programme. The PREP course is designed to encourage sex offenders to participate in an appropriate treatment programme;

- Mr Fitzsimmons asked for consent to review Mr Murray's Justice Health file as part of his preparation of the pre-release report. Mr Murray's consent was required in this regard and the meeting was terminated following this question because this request was the last question planned for that session;

- All parole officers undertake primary training, which incorporates a component regarding the supervision of Aboriginal offenders. Mr Fitzsimmons successfully completed this training in 2005. The training included information and discussion around understanding the Stolen Generations and applying this information to the case management of Aboriginal inmates who are members of those Generations;

- The pre-release report comprises information regarding significant social background, which includes relevant family and social issues, previous community supervision, factors relating to offending, relevant attitudes of the inmate towards the offence and the victim, correctional centre behaviour, programs and services undertaken while in custody, the risk of re-offending, post release plans including accommodation and level of surveillance and monitoring, child protection issues, employment and issues related to community re-integration, and a summary with recommendations.

On 9 May 2008 Mr Murray commented on the response to the ADB. He reiterated the following:

- Mr Fitzsimmons did not show any concern regarding his grief over the deaths of his family members and the fact that he could not attend their funerals, either in his report or at the parole hearing;

- Mr Murray's ambivalence was caused by his lack of financial means to pay for the two escort officers in order to attend the funerals in Griffith. The cost of attendance was $1,800. The Aboriginal Unit did not have the money either;

- Mr Murray's son died on 4 December 2005 and he was advised of this on 5 December 2005. On 6 December 2005 he completed an Inmate Application Form to attend the funeral, which was due to take place on 12 December 2005. The form was sent to the respondent and to the Aboriginal Unit. Mr Murray attached a copy of the application form dated 6 December 2005, in which he sought permission to attend his eldest son's funeral in Griffith on 12 December 2005:

- Mr Fitzsimmons called him an "Aboriginal rapist";

- Mr Fitzsimmons misinterpreted mitigation factors affecting his sentencing, which had been dealt with by the court;

- Mr Fitzsimmons said that being born in England somehow insulated him from the effects of past Australian government policies of the forced removal of Aboriginal children from their families, cultural identity and inheritance. Judge Shadbolt of the District Court, on the other hand, when sentencing Mr Murray on 15 December 2004, compared his beginnings with those described by Charles Dickens in writings about deprivation and cruelty suffered by orphans during earlier times in England;

- His discussions with Mr Fitzsimmons concluded when Mr Murray walked away from him after he demanded that he sign his medical consent contrary to privacy legislation and because of his demonstrated bias against him during their discussions.

On 7 July 2008 the respondent forwarded the following further material to the ADB for its consideration of the complaint in respect of Mr Murray's inability to attend his son's funeral:

- An application dated 6 December 2005 to attend the funeral service of Mr Murray's son. The application is supported by his family members. There is a handwritten note dated 7 December 2005 stating that Mr Murray "is considering whether he will go or not at this stage";

- A further copy of the application on which it is noted "has advised ... that he is not sure if wants to go. He has also confirmed with welfare officer he is uncertain if he wants to go. At 3am he was still unsure. Hence the lateness of the application..."

- A further copy of the application form on which it is noted that Mr Murray "will require transfer" and that "OT (overtime) costs will be incurred" and "Insufficient time to arrange escort" and "Inmate has held onto an Inmate Application for several days & has not submitted it along with this appl. He reckons he cannot go by truck & wants to go by car & expects OCS to accommodate this request at late notice".

- A further copy of the application dated 11 December 2008 in which it is noted that the request to attend the funeral cannot be "facilitated due to late notice";

- Copy of a letter dated 9 December 2005 from Area Manager 6, C Oldfield, addressed to Ms A West, the Security Manager Area 5/6, in which it is stated that Mr Murray "exhibited some ambivalence in attending the funeral previously". Mr Oldfield asked Mr Murray whether he intended to go to the funeral, to which Mr Murray responded that he would "let it go", because he was not prepared for a long escort in a truck and the long turnaround time to return to Long Bay. Mr Murray refused however to complete a form that stated that he would not be attending the funeral; and

- Copy of the NSW Department of Corrective Services Operation Procedures Manual in respect of local leave permits for funerals or other events of family or cultural significance.

On 29 November 2008 the Commissioner responded to the two further complaints made by Mr Murray. The Commissioner responded in summary as follows:

- The State Parole Authority (the SPA) is an independent statutory body and is not controlled by the respondent;

- On 18 January 2008 at a private hearing the SPA considered Mr Murray's case and decided to refuse parole because it decided that he would not be able to adapt to normal, lawful community life, that he had a potentially high risk of re-offending, that he had refused to address his offending behaviour and he had no confirmed post-release accommodation;

- The matter was then listed for a public hearing on 28 February 2008. Two particular forms were forwarded to the Long Bay Parole unit to be given to Mr Murray. The first form concerned whether Mr Murray wished to attend the hearing, whether he desired legal representation and whether an interpreter was required. The second form was an acknowledgement and receipt that he had received all relevant documents;

- The SPA also requested a supplementary report updating Mr Murray's circumstances;

- Ms Markou was temporarily allocated the file for the purpose of preparing the material for the public hearing. She was selected because of her considerable skills and experience with clients who have been convicted of sex offences;

- Ms Markou was anxious to complete the forms and prepare the report to ensure that Mr Murray was adequately represented at the hearing and so that he would have an opportunity to raise any issues directly with the SPA. Ms Markou was employed on a part-time basis of three days a week and there was some urgency to the preparation of the material;

- 13 February 2008 was Ms Markou's last work day for that week and the report was due on 14 February 2008. It was unfortunate that 13 February 2008 coincided with Sorry Day but Ms Markou had a professional obligation to complete the material for the SPA. The timetable is not set by the respondent but by the SPA;

- The respondent was unable to allocate an Aboriginal probation and parole officer as requested by Mr Murray because there were none located at the Long Bay Parole Unit;

- Mr Murray was difficult and uncooperative; and

- There is no evidence that Ms Markou treated Mr Murray in a discriminatory manner.

On 29 January 2009 Mr Murray commented on the respondent's response as follows:

- The decision by the SPA to refuse parole would have been based on the recommendations of the parole officers, Mr Fitzsimmons and Ms Markou, against his release on parole;

- The respondent would have been aware of his decision to appeal the decision of the SPA;

- On 13 February 2008 after Ms Markou left, he asked to see the Officer in charge of his unit. He complained that Ms Markou had provoked him and shown contempt for him by her conduct and manner of speech on the day of the national apology to indigenous Australians. He complained that as a member of the Stolen Generations, he felt hurt and offended by her behaviour and he said that he distrusted her motives;

- The Officer-in-Charge tried to contact the parole unit unsuccessfully but asked Mr Murray to return to following day at 10am. On 14 February at 10am the Officer-in-Charge told him that he could authorise his appearance at the parole hearing. They both signed the form. He said that he had done the same thing for other prisoners when they had problems with their parole officers; and

- In his opinion Ms Markou did not present as someone who had special skills or experience when dealing with prisoners who were members of the stolen Generations.

Mr Murray attached copies of the following documents to his response:

- Correspondence from the Deputy Commissioner of the Offender Management and Operations to the all staff regarding the broadcast of the "Apology to the Stolen Generations of Australia by the Prime Minister" on Wednesday 13 February 2008 commencing at 8:55am. The letter instructed all general managers of correctional centres to "take all reasonable steps to ensure indigenous offenders are provided with an opportunity to listen to this broadcast".

- Newsletter published by the respondent for September/October 2008 praising corrective services staff of the secretariat of the SPA for their good work; and

- An inmate acknowledgement form signed by the applicant and Superintendent Karl Williams on 14 February 2008 enabling him to apply to the Parole Authority for it to reconsider his case and indicating his intention to appear and to be legally represented.

Tribunal Proceedings

The complaint could not be conciliated and was referred by the President of the ADB to the Administrative Decisions Tribunal (ADT) for inquiry.

The complaint was case managed and attempts were made to mediate it on two occasions, unsuccessfully.

The complaint was listed for hearing on 15 and 16 March 2010, 24 and 25 May 2010 and 5 and 6 August 2010. At the hearing the following witnesses relied on signed and dated statements and gave oral evidence:

(a) Allan David Murray;

(b) Vincent Fitzsimmons;

(c) Deborah Markou;

(d) Michelle Jordan; and

(e) Victoria Bel.

The documentary evidence tendered in the proceedings is as follows:

(a) The ADB President's report to the Tribunal lodged in the Tribunal on 12 March 2009;

(b) Statements in reply of Allan Murray dated 3 March 2010 and 16 April 2010, ;

(c) Statement of Vincent Fitzsimmons with attachments dated 17 February 2010;

(d) Statement of Michele Jordan with attachments dated 17 February 2010;

(e) Probation and Parole Service Supplementary Pre-Release Report dated 15 February 2008;

(f) Statement of Deborah Markou with attachments dated 18 February 2010;

(g) Statement of Victoria Bel with attachments dated 6 April 2010.

The Evidence

The Supplementary Pre-release Report prepared by Ms Markou on 13 February 2008 set out Mr Murray's situation as at that time. She reported as follows:

"CURRENT SITUATION

Mr Murray's situation has basically remained the same since the previous report. He remains housed in 15 wing (sic) and continues to be employed as a cleaner for the Manager of Centre Services and Employment who states he is an excellent worker. Mr Murray has incurred no internal misconduct charges during this period of incarceration.

Mr Murray continues to participate in the PREP program, however has missed the last two sessions. The facilitator of the PREP program stated that Mr Murray has informed her that he needed "time out" from the program to deal with the impending "apology" from the Australian government to the Stolen Generations. She further added that he had appeared pre-occupied during group sessions by the Stolen Generations and has made frequent references to this and other racial issues. Mr Murray has recently indicated to the facilitator that following the "apology", he will be ready to rejoin the group, including making a disclosure of his offences.

Whilst his willingness to participate in the program is considered positive, PREP is not a therapeutic treatment program. It is hoped that PREP may assist Mr Murray to consider engaging in treatment thereafter.

Post release plans are yet to be formulated for Mr Murray given his outstanding treatment needs.

ASSESSMENT AND RECOMMENDATION

Mr Murray is a repeat sex offender who is considered to be in a high risk category of sexual/violent recidivism and to date, has failed to address his offending behaviour.

Successful completion of PREP and an appropriate sex offender therapeutic treatment program are considered vital before a recommendation to parole can be considered."

Written Statement and Oral Evidence of Vincent Fitzsimmons

Mr Fitzsimmons stated that from August 1984 to 1999 he worked as a Probation and Parole Officer (PPO) with the respondent in various districts. In 2001 he moved to Ireland, returning to work for the respondent in Albury in 2003 for 18 months. He then worked at Long Bay for 3 years and since 1998 has been working for the respondent in Wollongong.

Mr Fitzsimmons stated that over a 21 year period he has worked as a PPO with both indigenous and non-indigenous offenders. His training as a PPO included Aboriginal cross-cultural training and discussion regarding the "Stolen Generations", as well as specific issues regarding the management of Aboriginal offenders.

As part of his duties as a PPO he was required to prepare a pre-release report for Mr Murray for submission to the SPA because Mr Murray's non-parole period was due to expire on 27 February 2008. To this end, he interviewed Mr Murray on 26 November 2007. The SPA makes decisions about an inmate's parole after conducting a hearing at which the inmate and any representative may attend. Mr Fitzsimmons stated that he prepared the report in accordance with the guidelines set out in the "Community and Offender Services Policy and Procedures Manual".

At the interview, Mr Murray told him that he had been incarcerated as a direct result of the invasion in 1788 and he wanted to talk about the Stolen Generations and what was owed to him for being taken away from his family.

Mr Fitzsimmons stated that Mr Murray had not participated in any sex offender programmes and he told Mr Fitzsimmons that he had not decided whether he would. He accepted his guilt and had undertaken three sessions of PREP. Mr Fitzsimmons said that he told Mr Murray that it was unlikely that he would be paroled if he had not successfully completed a sex offender treatment programme. Mr Murray said that he had not undertaken those programmes because of his grief over the death of members of his family in 2005 and 2007, but he had not been permitted to attend their funerals. Mr Murray also stated that he had addressed his offending behaviour because he had apologised to the victim, escorted her to a health centre on the morning following the sexual assault, and pleaded guilty.

Mr Fitzsimmons explained that he asked Mr Murray about his siblings because he needed to obtain information about his family background but Mr Murray questioned him as to why he needed this information and Mr Murray refused to sign a consent form to enable Mr Fitzsimmons to peruse his medical file. Mr Murray denied having any other convictions for sexual assault despite having been convicted of rape in 1980 and "assault female" in 1985. H also noted that Mr Murray breached parole at that time.

Following his discussion with Mr Murray, Mr Fitzsimmons investigated Mr Murray's claim that he had not been allowed to attend the funerals of his son and sister. He stated that the documentation indicated that Mr Murray had been ambivalent about attending and had not provided his application in time.

The pre-release report was completed on 10 December 2007. The report was not favourable to Mr Murray because Mr Murray had not competed treatment for his sexual assault offending behaviour and his alcohol problem. Mr Fitzsimmons' supervisor, Ms Deborah Markou, supported his recommendation.

Mr Fitzsimmons denied calling Mr Murray "an Aboriginal rapist" but stated that he did try to focus Mr Murray's attention on the reason for his incarceration and in particular, on the fact that instead of being a victim, he should acknowledge that he was an aggressor towards Aboriginal women and that all of his crimes were perpetrated against Aboriginal persons. Mr Fitzsimmons also stated that he referred to Mr Murray's "severely disadvantaged background" in the report to the SPA and that he did not fail to take it into account.

Mr Fitzsimmons stated that he formed the view that Mr Murray used being a member of the Stolen Generations to avoid responsibility for his offending.

Mr Fitzsimmons stated that, if a psychologist had recommended that an offender undertake a course like CUBIT (Custody Based Intensive Treatment), he would never recommend parole until the course had been completed, regardless of the mitigating circumstances such as social background. CUBIT is a long term intensive programme and cannot be undertaken outside gaol. If an inmate has addressed their offending behaviour, he is less likely to re-offend and that is an important consideration if the inmate is to return to the community.

Mr Fitzsimmons denied Mr Murray's claim that he told him that "none of that stuff affects me because I was born in England". He recalled speaking to Mr Murray about his Irish forbears and the oppressive effects of British colonialism.

Shortly after completing Mr Murray's pre-release report, Mr Fitzsimmons was transferred to Sutherland and Ms Markou became Mr Murray's PPO, who became responsible for the supplementary report for the SPA. Mr Fitzsimmons stated that he attended Mr Murray's parole hearing at the SPA by telephone from the Long Bay Parole Unit.

Attached to Mr Fitzsimmons's statement include the following documents:

- Offender Intake Data Form - re Alan David Murray completed by Mr Fitzsimmons on 26 November 2007;

- Instructions on the preparation of Pre-Release Reports;

- Offender Details re Conviction, Sentences and Appeals in respect of Alan David Murray;

- Case Note Reports in respect of Alan David Murray for the period 7 September 2005 to 4 December 2008;

- Handwritten approval to attend son's funeral dated 7 December 2005;

- Inmate request form to attend funeral of eldest son dated 6 December 2005;

- Letter in respect of Mr Murray's son;

- Case notes dated 5 and 6 December 2005;

- Copy of documentation referred to in paragraph 26 above;

- Case notes Running Sheet dated 26 April 2007 in respect of Mr Murray's sister's death; and

- Pre-release report prepared by Mr Fitzsimmons and Ms Markou dated 10 December 2007.

The pre-release report referred to various sources of information such as interviews with the inmate, contact with the psychologist, the senior education officer, the Assistant Superintendent, the Wing Officer and the Judge's sentencing remarks, court depositions and police facts and attached the following documents:

- Psychiatric report prepared by Professor David Greenberg dated 29 October 2004;

- Psychological report prepared by Phil Gorrell dated 12 September 2004;

- Psychiatric report by Dr Stephen Allnutt dated 24 august 2004;

- Pre-sentence report dated 24 July 2001;

- Pre-sentence report dated 6 June 1986;

- Correspondence from John Maher dated 29 December 2004;

- Parole Report dated 17 October 1985;

- Pre-sentence report dated 1 October 1985; and

- Parole report dated 10 April 1985.

The pre-sentence report dated 1 October 1985 was produced to the Tribunal. This report contained details regarding Mr Murray's social background, which included his history of being placed by the Aboriginal Welfare Board in an institution known as Kinchella Boys Home, near Kempsey at the age of four at the time of his parents' separation. He remained there until the age of 16. The report noted that the regime at Kinchella was strict and rigid and that the only positive outcome was that he was able to obtain an education. The report outlined Mr Murray's educational achievements and his employment. It noted that he had become politicised which led to his involvement in the Aboriginal movement. The report detailed Mr Murray's imprisonment for the period 1980 to 1984. It stated that he impressed as "a well educated aborigine who has worked in recent years both in paid and in voluntary capacities for the Aboriginal Community". The report noted that sentencing options for Mr Murray were limited and that he was assessed as unsuited for Community Service because of his history of convictions for violent offences and an aggressive attitude which would make the administration of a Community Service Order extremely difficult".

The report prepared by Mr Fitzsimmons and Ms Markou set out in detail Mr Murray's significant social background and refers to his "severely disadvantaged background, which is comprehensively described in the attached documentation". It is asserted that "he has consistently used his unfortunate feature of being one of the 'stolen Generations' to avoid responsibility for his offending and to avoid complying with previous community based sentencing options". Reference is also made to Mr Murray's assertion that he was denied permission to attend family funerals, but the report states that "records indicate that he was ambivalent about attending his son's funeral on 12 December 2005 and had failed to apply in time. He had also refused to be transported in a prison truck and refused to speak with the Manager of Security". The report identified additional issues such as alcohol abuse and set out Mr Murray's history of offences, noting that he had not undertaken any substance abuse programmes or any offence-targeted programmes. It was noted that he was assessed as being at high risk of general recidivism and his post-release accommodation plans had not been confirmed or assessed for suitability. In summary it was reported that Mr Murray was a repeat sexual offender who was yet to undergo treatment for his offending behaviour and that he had given no indication that he intended to do so. It was noted that "until Mr Murray had successfully completed treatment for both his offending behaviour and his alcohol problem, a favourable recommendation for his release to parole cannot be made".

In oral evidence Mr Fitzsimmons confirmed his written statement. He said that he understood the importance of maintaining a prisoner's equilibrium and the importance of not developing personal relationships with the prisoners. He said that he recognised the need to show concern and empathy for the prisoners, particularly when preparing a pre-release report.

Mr Fitzsimmons said that his caseload at the time he interviewed Mr Murray in November 2007 was about 40, that is, he had to prepare about 40 pre-release reports at that time. He said that some inmates were cooperative and some were not. He said that he would have prepared himself by reading all of the material in the file. He conceded that prior to the interview he may have only glanced at some of the material, but that he would have looked at it in more detail later when preparing the report.

Mr Fitzsimmons agreed that Mr Murray told him that he was not allowed to attend his son's and his sister's funerals. He believed that it was a genuine complaint and investigated it. He said that he discovered that Mr Murray's attendance was not refused but that Mr Murray was ambivalent. He believed that Mr Murray had been dishonest with him and he conceded that this was reflected in the report he prepared. He conceded that he did not know that it would cost Mr Murray money to attend the funerals. Mr Fitzsimmons said that he showed concern and empathy towards Mr Murray, but that it was Mr Murray's perception that he did not.

Mr Fitzsimmons denied calling Mr Murray an "Aboriginal rapist" but then stated that it was an "unlikely possibility". He denied any intention to hurt. He denied saying "None of that stuff affects me because I was born in England". He agreed that he was born in England. He denied feeling frustrated. He said that he tried to relate to Mr Murray when he spoke of his Irish forbears. He said that he was trying to establish rapport.

Mr Fitzsimmons confirmed his evidence that the main reason for the refusal of parole was the fact that Mr Murray had refused to undergo sex offender treatment.

Written Statement and Oral Evidence of Deborah Markou

Ms Markou stated in her statement of 18 February 2010 that she commenced working for the respondent in February 2002 as a case manager in a temporary capacity. She obtained a permanent position as a PPO at Long Bay in the Probation and Parole Unit in early 2003. Ms Markou stated that in October 2006 she went on maternity leave until March 2007 and returned to work on an alternating two-day and three-day working fortnight until August 2008, when she relocated to the Henry Deane Building in Central Sydney as a Senior Project Officer.

Ms Markou stated that Mr Murray became her client because his PPO, Mr Fitzsimmons, was temporarily unavailable. It was her role to prepare a supplementary report for the SPA. This report served as an update. It also served as an opportunity for an inmate to put before the SPA any new information or changes to their situation.

Ms Markou stated that she also had to ensure that Mr Murray sign two documents, a Form 2B and a Form 2C. Form 2B is to be used for requesting a public hearing and Form 2C for recording an inmate's wish to be legally represented at the hearing. Form 2C is also for acknowledging that the inmate had received a copy of Form 2B and all of the other documents to be considered by the SPA.

Ms Markou stated that she could not recommend parole unless Mr Murray had taken part in a high risk sexual offender's treatment programme. She stated that about half of her clients at Long Bay were sex offenders and that she had a close working relationship with the psychologists at Long Bay as a result. Victoria Bel, a Department psychologist, had undertaken a Static 99 test on Mr Murray on 29 September 2006 and obtained a result of "high". This deemed Mr Murray to be a candidate for the CUBIT programme. She had noted that as at 12 February 2008 Mr Murray had missed two PREP sessions out of ten and had informed Ms Bel that he would miss further sessions due to the National Apology to the Stolen Generations by the then Prime Minister, Mr Kevin Rudd. Additionally, Ms Markou stated that in every session of PREP that Mr Murray had attended, he was focused on racial issues and constantly referred to the Stolen Generations. Ms Markou stated that Mr Murray failed to refer to his victim during the PREP sessions and instead focused on his own sense of victimhood.

Ms Markou stated that on 5 February 2008 she met Mr Murray in the visitor's section of Long Bay Gaol at about 9:55am. She explained the purpose of the supplementary report and she showed Mr Murray the papers. He asked her why he needed to sign the Forms 2B and 2C. She claims that she tried to explain but found him to be uncooperative. He told her that he had asked for an Aboriginal PPO. She said that she explained that Long Bay did not have an Aboriginal PPO. She stated that Mr Murray told her that the report prepared by Mr Fitzsimmons was a lie. She suggested that she go through the document with him to determine its accuracy and that if anything had to be changed it could be included in the supplementary report. She found Mr Murray to be antagonistic and that he called her a "white liar", and said that she was "judging him" and that "white people had been lying for 200 years". She tried to get Mr Murray to identify the deficiencies in the report. She denies that she was attempting to justify the report. She stated that she wanted to verify that there were no inaccuracies in the report. She said that he walked away from her abruptly. She stated that she walked after him and spoke to his work supervisor to locate where he had gone. She denied that she entered any storeroom as alleged by Mr Murray because she would not put herself in a vulnerable position with a sex offender. She denied that she either threw or dumped the documents she had been carrying. She could not leave any documentation with him without his signature. In any event she claims that she had ongoing back problems and was therefore incapable of throwing anything with any force.

Ms Markou stated that she was not aware that Mr Murray complained about her conduct on 5 February 2008 at that time, or that he had made a complaint to the ADB until some time after it was received by the Department.

Ms Markou stated that a short time later on 5 February 2008 she informed Assistant Superintendent Collins and Superintendent Crowley of what had occurred in her interview with Mr Murray, because she thought it would be more effective to speak with Mr Murray in the presence of two senior officers. Michele Jordan attended the Central Office and joined in the conversation with Mr Murray. Mr Murray said that he wanted an Aboriginal PPO. Ms Jordan informed him that there were no Aboriginal PPOs employed at Long Bay. Ms Jordan told Mr Murray that if he wanted to attend the SPA hearing he would have to sign the Form 2B documents requesting a hearing. He said he did want a hearing but did not want to sign any documents. She told him that she would return later and give him some time to think about it.

Ms Markou stated that she had no specific recollection of a conversation with Mr Murray on 11 February 2008, but noted that she had arranged for Craig Madden, an Aboriginal Welfare Officer to meet with Mr Murray and herself on 12 February 2008. Mr Madden later cancelled that appointment.

Ms Markou saw Mr Murray again on 13 February 2008, the day of the National Apology. She viewed the National Apology from 9am to 11am and considered it to be a significant moment in Australian history. That week Ms Markou worked Monday, Tuesday and Wednesday which was 13 February 2008. 13 February 2008 was her last day of work before Mr Murray's pre-release report was due to be submitted to the SPA on 14 February 2008. Ms Markou stated that she deliberately waited until the afternoon before speaking with Mr Murray in order to give him the opportunity to watch the National Apology, but she also thought that it was important for Mr Murray to put his case to the SPA on 28 February 2008.

Ms Markou stated that although Mr Madden was unavailable, she tried to contact other Aboriginal staff unsuccessfully. Time was running out and she asked Brian Farrell, Mr Murray's case officer to attend with her. She entered the Central Office at 1:50pm after lunch time lock down and apologised to Mr Murray for bothering him on such an important day but noted that his pre-release report was due the following day. She stated that he told her to go and write it. She denied raising her voice to Mr Murray or acting in an intimidating or aggressive manner towards him.

Attached to Ms Markou's statement are her case notes in respect of Mr Murray for the period 5 February 2008 to 13 February 2008, and the attendance register of non-uniform staff at MSPC 3 for 5 February 2008 and for 13 February 2008. The register for 5 February shows that Ms Markou and Ms Jordan entered at 9:55 and 9:58 respectively and left at 11:25 and for 13 February it shows that Ms Markou entered at 1:50 and left at 1:55pm. Ms Markou also attached a copy of a medical report that confirms that she has a shallow thoraco-lumbar scoliosis and advanced left L5/S1 disco-vertebral degenerative disease and information regarding the National Apology.

In oral evidence Ms Markou confirmed her written statement. She added that she had previously met Mr Murray while she was working on the Classification Coordination Committee in 2006. Inmates appeared before the Committee every six months, so that she usually saw him every six months in this capacity.

Ms Markou said that every inmate has a classification and it is the Committee's role to review the classifications of the inmates to determine whether an inmate should progress, remain the same or regress. The classification determined the level of security required for a particular inmate, as well as the level of freedom available to the inmate and the type of work allocated to the inmate. Ms Markou said that she believed that Mr Murray was classified as either C1 or C2, but suspected he was C1 because he had not undertaken any treatment. She said that sex offenders are not eligible to move beyond C2. Movement from level C1 to C2 was determined by whether or not an inmate had engaged in treatment programmes.

Ms Markou told the Tribunal that working part-time resulted in an intense caseload. She recognised that it was vital to maintain a reasonable relationship with inmates, and she always tried to be empathetic. She said the situation was slightly different with Mr Murray, because Mr Fitzsimmons was his PPO and she had been assigned the task of completing the supplementary report only, the purpose of which was to inform the SPA of any updated circumstances. The SPA would already have had the report prepared by Mr Fitzsimmons.

Ms Markou agreed that the documents she had with her when she saw Mr Murray could have been about two to two-and-a-half inches thick. She tried to encourage him to sign the papers, but he refused to sign them because he said that he did not agree with the report. She maintained that she explained the content of the documents, because this is what she usually does. She denied following Mr Murray into the storeroom and denied slamming the documents down. She said that she would not have done that because she could not leave the documents with the inmate unless he had signed for them. She said that she took the documents back with her to the office and spoke to her manager, Michele Jordan.

Ms Markou agreed that signing the documents was not compulsory, but it is in the best interests of the person to sign the documents. Ms Markou said that it is not helpful to act in the way it has been alleged.

Ms Markou agreed that the National Apology was a very important date for Mr Murray and she appreciated the importance of the Sorry Day broadcast, but she said that she did not know what the broadcast would entail. She told the Tribunal that she consulted her colleagues as to how to manage the day and her workload. It was suggested that she wait until the afternoon to speak with Mr Murray. She said that she was not aware that the telecast was continuing into the afternoon. She believed that she had respected Mr Murray's needs, but also needed to get her work done. She confirmed that 13 February was the last day she was working before the report had to be submitted on 14 February 2008. Ms Markou denied disregarding Mr Murray's membership of the Stolen Generations.

Written Statement and Oral evidence of Michele Jordan

Michele Jordan has been the District Manager of the Long Bay Parole Unit since May 2006. In late 2007 and early 2008 she was directly supervising Mr Fitzsimmons and Ms Markou.

Ms Jordan explained that the New South Wales State Parole Authority (SPA) is an independent statutory authority, which decides which inmate, whose sentence includes a non-parole period, will be released from prison to parole. It also sets conditions of release and determines if and how a home-detention or periodic-detention order should be revoked, substituted or re-instated. In deciding whether an offender should be released on parole, the SPA considers the interests of the community, the rights of the victim, the intentions of the sentencing court, and the needs of the offender. The SPA considers material provided to it by the Parole Unit.

In late 2007 Ms Jordan assigned Mr Murray's case to Mr Fitzsimmons, who prepared a pre-release report dated 10 December 2007. The SPA also required a supplementary report and Ms Markou was asked to complete this for the public hearing, which was listed for 28 February 2008, because Mr Fitzsimmons had been moved to Sutherland for some training. Ms Markou had been selected because of her skills in dealing with clients who are convicted sex offenders.

Ms Jordan stated that she directed Ms Markou to deliver documents to Mr Murray on 5 February 2008 for his review and signature and to speak to him about the supplementary report. The documents included a Form 2B and a Form 2C. Form 2B concerned the question of whether the inmate wished to attend the hearing and Form 2C confirmed that the paperwork had been received. The documents had to be provided to the SPA by 14 February 2008. Ms Jordan stated that Ms Markou told her that Mr Murray had refused to sign the documents and that he called her a liar. Ms Markou asked her to speak with Mr Murray at the Central Office together with Superintendent Crowley and Assistant Superintendent Collins. She did so. She stated that she also explained that the situation was urgent because Ms Markou only worked part-time, three days a week.

Ms Jordan acknowledged that on 27 January 2008 Mr Murray had requested an Aboriginal PPO to oversee his case but stated that there has been no Aboriginal PPO at Long Bay for some time and his request could not be granted. Ms Jordan stated that there were however some Aboriginal staff at Long Bay but at the time none of them were available.

Ms Jordan stated that Mr Murray said that he wanted a hearing but he did not want to sign any documents. She noted that he did sign the documents on 14 February 2008 in the presence of Senior Assistant Superintendent Karl Williams.

Ms Jordan stated that she received a copy of Mr Murray's complaint to the ADB concerning Mr Fitzsimmons, on 11 January 2008. She spoke with Mr Fitzsimmons about it. She stated that she learnt of the two further complaints in October 2008 ad she spoke to Ms Markou about them at that time.

Ms Jordan also refers in her statement to other later reports prepared by Greg Hoare, PPO, in 2009 and to documentation prepared by him but this material is not considered to be relevant to the matters to be determined by this Tribunal, and in any event, was objected to by the applicant's legal counsel and has not been considered in this decision.

Attached to Ms Jordan's statement are copies of documentation relating to paperwork prepared by another PPO, Greg Hoare, in 2009, copies of the subject Forms 2B and 2C, a pre-release report dated 17 October 1985, a pre-sentence report dated 6 June 1986, a New South Wales Probation Service Report dated 29 December 1994, a Probation and Parole Sentence Report dated 18 August 2000, a pre-sentence report dated 24 July 2001, a letter from Dr Stephen Allnutt dated 24 August 2004, a letter from Professor David Mace Greenberg dated 29 October 2004, as well as the written request by Mr Murray for an Aboriginal PPO dated 27 January 2008. It is noted that the written request contains the following reasons:

"Reasons being:

1. I am an Aboriginal elder inmate and member of the Stolen Generations of Aboriginal people.

2. I wish to be fairly represented in the reports to the Parole Authority.

3. I wish to be represented by someone who can empathise with my personal history without being judgemental (sic) or biased towards me.

4. I prefer someone who is familiar with the history, lifestyle of my people, Stolen Generations and who understands Aboriginal culture."

The letters from Dr Allnutt and Professor Greenberg set out difficulties experienced in trying to carry out psychiatric assessments of Mr Murray. Dr Allnutt reported that Mr Murray was reluctant to be interviewed without the opinion of his lawyer, whom Dr Allnutt unsuccessfully attempted to contact. Similarly, Professor Greenberg reported that Mr Murray declined to consent to a psychiatric assessment without the approval of his lawyer or barrister. Professor Greenberg also reported that he had been unable to contact the lawyer.

In oral evidence Ms Jordan confirmed receiving a request from Mr Murray for an Aboriginal Parole Officer and she confirmed that there were none at Long Bay and so, she had no one to allocate to his case. She noted there were Aboriginal Parole Officers in the community who supervised inmates released from custody. She said that there were Aboriginal Welfare Officers at Long Bay, but they were not always available, because resources were stretched.

It was put to Ms Jordan in cross-examination that she could have allocated an Aboriginal Welfare Officer to assist in Mr Murray's case and act as an intermediary. Ms Jordan said that these officers do not report to her. Under cross-examination Ms Jordan conceded it was not compulsory to sign the forms 2B and 2C, but in her view the best approach in the end was to get superintendent Karl Williams to assist in getting the documents signed. She conceded that she had a relationship with welfare staff and knew how to contact them but once they get involved, the situation becomes part of that unit's workload.

She agreed that she was aware of the directive that Aboriginal inmates are allowed to attend funerals but she said that the Parole Unit is not directly involved in those decisions. She understood that if an application is approved it is sent to the Aboriginal Planning Unit and it is at that unit's discretion whether costs are allocated to it.

Ms Jordan agreed that an inmate's background, childhood problems, membership of the Stolen Generations and any other aspects of their life would be included in the pre-release report, as would information about the deaths of any children or other family members. She agreed that parole is a crucial time in an inmate's life and that a welfare officer would participate in the process if requested. She agreed it was possible for Ms Markou to have asked someone else in the Parole Unit to have completed the report on 14 February 2008 and send it to the SPA by close of business on 14 February 2008.

Written Statement and Oral Evidence of Victoria Bel

Ms Victoria Bel is an Aboriginal person who commenced working for the respondent in February 1999 as a Senior Training Officer with Sex Offender Programmes, based at Forensic Psychology Services in Surry Hills. Between December 2001 and February 2002 as part of her Clinical Masters degree in Psychology she undertook clinical placement as an Intern Psychologist at the Metropolitan Special Programmes Centre (MSPC) (Area 5), but which is now called MSPC 3 at Long Bay. Ms Bel stated that in 2002 she obtained the position of full-time psychologist in the MSPC (Area 5). Following completion of her Masters, she eventually in 2005 took up her position of Specialist Psychologist at MSPC 3, where she remained until 19 February 2010.

Ms Bel explained the Preparatory (PREP) programme is a 12-16 session course for sex offender inmates. It is designed to increase motivation to participate in sex offender treatment programmes, such as the Custody Based Intensive Treatment (CUBIT) programmes, the CORE (CUBIT Outreach) programme and the Deniers programme. Mr Murray participated in 14 sessions of PREP between 14 November 2007 and 9 April 2008 in MSPC 3. Ms Bel was the facilitator of the programme and she recorded contemporaneous notes of the sessions, a copy of which was attached to her statement.

Ms Bel stated that Ms Murray was pre-occupied during the sessions with his own unresolved issues with being a member of the Stolen Generations. She empathised with his specific issues as an Aboriginal person removed from his family but noted that many sex offenders come from severely disadvantaged backgrounds and that they receive supportive feedback about their issues as part of the PREP programme, which is designed to recognize how past issues such as lack of self-esteem or lack of empathy contribute to inappropriate coping strategies and faulty beliefs about sex, and what constitutes consent for sex, that have been developed. Participants are encouraged to develop greater self-awareness and to learn new skills to enable them to lead more satisfying lives.

Ms Bel stated that from 14 November 2007 to 12 December 2007 Mr Murray attended four sessions but spent much of the discussion focused on the Stolen Generations and racial injustice towards Aboriginal people. She stated that on 30 January 2008 Mr Murray told her that he was feeling stressed and needed a break from the group. Mr Murray left the group discussion on that day abruptly and did not attend on 6 or 13 February 2008. On 5 March 2008 he disclosed his most recent sexual offence and acknowledged that he did not obtain the victim's consent, explaining that this is how things are done in the Aboriginal culture. She stated that he was not receptive to her challenge on this point or by other members of the group. He said that he had physically assaulted the victim after she had said that she had been "having sex with a white man". Mr Murray acknowledged that the physical assault was wrong, but defended his sexual behaviour and blamed the fact that he had been charged on the "strong women" and "political influences" at the Aboriginal Medical Service, where the victim had gone for treatment after the assault.

Ms Bel stated that Mr Murray made disrespectful comments about a female Probation and Parole Officer whose name she could not remember and referred to her as "white" and "strutting around". Ms Bel stated that throughout the PREP process, Mr Murray did not appear to respond to the supportive group and appeared to perceive himself as different from other group members. He also questioned the relevance of the course and its concepts to Aboriginal people and when discussion turned to the attachment theory and the role this plays in intimate relationships, Mr Murray stated that the model did not take account of "cultural and spiritual issues".

Ms Bel stated that Mr Murray did not appear to become motivated to participate in treatment and refused to be referred for assessment for a suitable treatment programme. Ms Bel recalled that Mr Murray was the only Aboriginal person taking the PREP course in late 2007. She stated that since then, there have been other Aboriginal persons who have undertaken PREP and who have gone on to participate in other treatment programmes such as CORE and CUBIT.

CORE is a prison-based group therapy programme for men who have committed sexual offences against adults and/or children. It is designed to help participants work in challenging the thinking, attitudes and feelings that led to their offending behaviour. Mr Murray would not have been assessed to undertake CORE because he was assessed as being high risk on the Static 99 test, an actuarial risk assessment, which is used to predict the risk of future sexual offending and to assist in determining treatment needs.

CUBIT is a prison-based residential therapy programme for men who have committed sexual offences against adults and/or children. Individuals who are accepted into the programme are accommodated in special self-contained units. CUBIT is offered to moderate and high risk/needs offenders. It is designed to assist individuals to understand and take responsibility for their offending behaviour and to examine victim issues, identify their offending pathway and develop detailed self-management plans to live an offence-free and more-satisfying life. It is also designed to promote general life skills. In order to participate in a sex offender programme, an inmate must sign a document agreeing to be referred for assessment of eligibility. Mr Murray was no offered a place in CUBIT because he did not agree to be referred for assessment, despite being encouraged to do so. Mr Murray indicated that he was unable to undertake the PREP programme between 2005 and 2007, because he was grieving over the death of his son on 12 December 2005 and his sister on 26 April 2007.

Ms Bel stated that he was still being encouraged to undertake a sex offender programme in April 2009 but he stated that he was occupied with legal proceedings at that time.

Attached to Ms Bel's statement are documents which include material relating to the PREP programme, Ms Bel's case notes of Mr Murray's participation in the PREP programme, information relating to the CORE and CUBIT programmes and emails concerning Mr Murray's refusal to consent to being referred for assessment.

In oral evidence Ms Bel told the Tribunal that her impression of Mr Murray was that he "was very wedded to his concerns" and "quite resistant to letting go of those concerns".

Ms Bel said that Mr Murray was not offered a place in the CUBIT programme because he needed to self-refer, which he declined to do. He was encouraged on many occasions but was reluctant and declined. His participation in PREP was intended to motivate him to make such a referral. Ms Bel agreed that Mr Murray had said that he did not think that PREP would benefit him because he was a member of the Stolen Generations.

Written Statements in Reply and Oral Evidence of Mr Murray

Mr Murray stated that he was not aware nor was he told that Ms Bel was an Aboriginal person. She did not appear to be Aboriginal. He considered there were cultural problems with Ms Bel conducting the therapy sessions as an Aboriginal woman in that she should not be counselling Aboriginal men during men's groups.

Mr Murray denied that he was pre-occupied with unresolved issues relating to being a member of the Stolen Generations. He stated that he felt uncomfortable in the group because there was a mixture of different sex offenders including child murderers.

He agreed that he related his experiences of being removed from his family because that is his life. He denied blaming the sex offences on "strong women" or "political influences". He took the victim to the Aboriginal Medical Services. He denied making any disrespectful comments and he denied saying "white" or "strutting around". Mr Murray denied presenting himself as a victim. He took responsibility and pleaded guilty to the offence. He stated that he participated to the best of his ability in the group.

Mr Murray stated that he did leave a session abruptly but only because another group member had been disrespectful. He stated that CORE had not been offered to him otherwise he would have entered the programme. He stated that he was only offered CUBIT about six months prior to being released and could not complete it because he would be released prior to its completion. He agreed that he did not undertake the sex offender course while he was grieving for his son and this was agreed to by the Psychologist.

Mr Murray denied Mr Fitzsimmons's allegation that he only wanted to talk about his membership of the Stolen Generations. He stated that Mr Fitzsimmons told him he was not getting out and called him an "Aboriginal rapist". He denied calling Mr Fitzsimmons a "monster of the system".

He denied Mr Fitzsimmons's statement that he did not want to attend his son's funeral. He stated that it would have cost him $1,800 for two prison officers to attend the funeral with him - money he did not have. He stated that his son died on 5 December 2005 and that he gave his request to the Security Manager on 6 December 2005. The Security Manager held onto it for three days and then gave it to Officer Crowley who gave it back to him saying that it was too late to apply. He agreed that he requested to travel by car because of his age and his health. He thought he would have no chance of attending his sister's funeral, because of the way he had been treated in respect of his son's funeral.

Mr Murray denied the accusation that he used the Stolen Generations as an excuse for his offending. He stated that he apologised to the victim and took her to the Aboriginal Medical Centre.

Mr Murray stated that he wanted special counselling prior to undertaking the CUBIT course because of his membership of the Stolen Generations.

Mr Murray denied calling Ms Markou a "liar" or a "white liar". He maintained that she threw the documents down onto the shelf in the storeroom which she had entered while he was in there. He stated that her behaviour frightened him. He denied telling her to go and write the report without his consent but he did say words to the effect "You've done everything without my consent. You keep doing it."

Mr Murray stated that he found Ms Markou to be intimidating, aggressive, threatening and cruel.

Mr Murray stated that Superintendent Crowley was present when Mr Jordan spoke with him and after she left, Superintendent said to him: "That's the first I've ever heard of it", referring to the requirement to sign documents for the parole hearing. Mr Murray said that he complained to Senior Assistant Superintendent Karl Williams, who said he would resolve the problem. The documents were faxed to him the following day and he organized for Mr Murray to attend the parole hearing.

Mr Murray stated that he did 15 sessions, which is one more than the required 14 PREP sessions.

At the hearing Mr Murray told the Tribunal that he is the elder male in his family and this position has special significance in the Aboriginal culture. As such he is required to satisfy cultural requirements. Special rituals need to be performed when a member of the family dies. The grave becomes a sacred site. The rituals are important for the settling of the spirit. Mr Murray said that he wanted his son to be buried in Cowra and not Griffith. His son had his name and he wanted to be at his funeral. His son held a special place in the genealogy of the family name because he was the holder of the "seed dreaming".

In cross-examination he agreed that Mr Fitzsimmons did not prevent him from going to the funerals but he felt that he was not empathetic or understanding. He also agreed that he did not attend his sister's funeral and did not apply because he felt so frustrated by what had happened in respect of his son's funeral. Mr Murray said that in order to attend his son's funeral he needed to stay overnight and this meant that he would have to pay for the overnight stay of two security officers as well as himself. He could not afford this. He said that he asked the Aboriginal Unit but it also had no money. He agreed that he was considering whether he would go or not but in order to go he had to find $1,800. He agreed that he did not want to travel in the back of a truck because he felt unwell whenever he did so. He also said that the Area Manager, Mr Oldfield, wanted him to sign what he believed to be an "exemption to liability" document, which would exempt the respondent from liability in respect of the funeral. Mr Murray was shown a document which was in fact an application form saying that he did not want to attend the funeral and he agreed this was the document which he believed was the exemption document and which he refused to sign.

Mr Murray said that he felt that Mr Fitzsimmons bullied him and that he was antagonistic and aggressive in his approach to him. He said that he felt that Mr Fitzsimmons's attitude towards him was that he was "just not good enough". Mr Fitzsimmons made him angry and that is why he made his complaint. Mr Murray said that he felt Mr Fitzsimmons's attitude towards him was belittling and that he assumed that Mr Fitzsimmons wanted him to be like an Englishman. He said that he acted like a typical ignorant white man. Mr Murray said that Mr Fitzsimmons treated him differently from the way he treated other non-Aboriginal prisoners.

Mr Murray said that he understood that a parole officer has to prepare a report for the SPA but he believed that Mr Fitzsimmons and Ms Markou were biased and that they were not properly trained in cross-cultural matters. Mr Murray said that the parole officer was "judge, jury and executioner".

Mr Murray said that he believed that he had a reasonable expectation that he would be released on parole and that the parole officers would advocate on his behalf but they told him he "was not good enough" and he did not believe that this was because he would not do the courses. He agreed that he had three prior sexual assault convictions but he could not understand why he should be called an "Aboriginal rapist" because this was characterising him by his race. Mr Murray conceded that the real issue for the parole officers was that he attend treatment programmes. He confirmed that he refused to sign the documents brought to him by Ms Markou because he believed that he would be condoning a biased report.

He confirmed that he considered Ms Markou's demeanour to be aggressive, threatening and cruel and that he was frightened when she slammed the documents down in the storeroom. Mr Murray said that the documents were about two-and-a-half inches thick and that he was not exaggerating. Mr Murray said that Ms Markou had been influenced by Mr Fitzsimmons's report and that she was dismissive of his feelings on the day of the National Apology. Mr Murray said that it was dangerous for him when she followed him into the storeroom because he is in prison for a sex offence and she could make allegations against him.

Mr Murray denied that she apologised for interrupting his viewing of the National Apology. He did not trust her and he believed that she was mocking him. He said that parole officers have traditionally acted as advocates to assist an inmate to be paroled. He believed that they should not have given up on him.

Mr Murray was shown a copy of the Pre-Release report prepared by Mr Fitzsimmons, which he perused. He said that he could not recall much of what was in the report and believed that that it was a different document from the one he had previously received from Mr Fitzsimmons. Mr Murray said that he believed that she wanted him to sign the report to justify the respondent's position. He did not accept that the documents signed by him on 14 February 2008 in the presence of Assistant Superintendent Karl Williams were the same ones that Ms Markou wanted him to sign.

Mr Murray told the Tribunal that he had completed 12 out of 14 sessions of the sex offenders' course by February 2008. He agreed that the course was finally completed by April 2008 and that at the time of his interview with Mr Fitzsimmons in November 2007 he had not completed any sex offender course. He said that he needed some time off due to the family deaths and that culturally this was about three years, but in fact he only had one.

Mr Murray said that he believed that the programme was designed for him to fail because he was not able to talk about his beginnings or his childhood and he did not want to disclose any of this to strangers, particularly child sex offenders. Mr Murray said that he believed that the PREP programme was "brainwashing" and that its intention was to turn him into a "white man". He felt that it was a denigration of the Aboriginal man. Mr Murray said that he could not relate to the programmes or to the groups attending the programmes.

Mr Murray agreed that he had been offered the CUBIT programme in 2008 but said that the waiting list was 1 to 3 years. Mr Murray told the Tribunal that he has undertaken Linkup counselling, which focuses on reuniting lost members of family.

Mr Murray told the Tribunal that he had applied to have an Aboriginal Probation Officer to look after this case. He believed there was one and that Michele Jordan lied when she said there was not.

FINDINGS AND REASONS

Written submissions were received from both parties and were considered by the Tribunal. The applicant objected to Judge Shadbolt's judgment dated 15 December 2004, which was attached to the respondent's submissions, on the basis that it was irrelevant. It was not considered by the Tribunal in reaching its decision because it agrees it is irrelevant.

Legal Principles

Section 19 of the ADA specifies that it is unlawful for a person to discriminate against another person on the ground of race by refusing the person goods and services or in the terms on which the other person is provided with goods and services. As stated earlier in this decision there is no dispute that the respondent was providing services to Mr Murray in respect of both Mr Fitzsimmons's and Ms Markou's interactions with him.

Whether their conduct constitutes unlawful discrimination is governed by section 7 of the ADA, which provides that a person discriminates against another person on the ground of race if, on the ground of the aggrieved person's race, the perpetrator treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, than the perpetrator treats or would treat a person of a different race.

In order to determine whether Mr Fitzsimmons's and Ms Markou's conduct constitutes direct discrimination on the ground of race in the provisions of goods and services, the Tribunal must ask itself whether the conduct complained of amounts to differential treatment and, if so, whether that treatment was on the ground of race (Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5). In Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [231] (Purvis) the High Court said that those two elements of direct discrimination - differential treatment and causation - must be treated separately and sequentially.

The approach stated by the High Court in Purvis is logical when there is an actual comparator because the differential treatment question can be answered objectively based on the evidence of how the actual comparator was treated. However when the comparator is a hypothetical person the differential treatment question and the causation question amount to a single question, that is, why was the person treated as he was? (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 at [7] and [8]) and in Dutt v Central Area Health Service [2002] NSWADT 133 (Dutt) where the Tribunal stated:

When the comparator is hypothetical, the first question cannot be answered as a simple, stand-alone question: the way a hypothetical comparator would be treated cannot be assessed separately from asking what the ground or grounds for treatment of the applicant were. If an applicant was Chinese and was refused service (or denied promotion, or given menial duties etc), we cannot say how the hypothetical comparator, who is not Chinese, would have been treated in the same circumstances. The only fact that it is possible to determine is the ground or grounds on which the applicant was actually refused service. Only when this is known can we say whether a hypothetical comparator would have been refused service in the same circumstances. The applicant could, for example, have been refused service on perverse or irrational grounds, or solely on a ground unrelated to race: it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant's race would have been treated differently.

In Aldridge the Appeal Panel said that "if there is no relevant differential treatment it is unnecessary to consider the issue of causation". In the case of a hypothetical comparison, an extension of this might be: `but there is no basis on which to assess whether there would have been differential treatment until the cause for the actual treatment is known'.

This is not to disagree with the analysis in Aldridge, but to explain why in this matter, and we suggest in many others where the comparator is hypothetical, the two questions as to "less favourable treatment" and "on the ground of race" might be answered as part of the same reasoning exercise.

The majority of the High Court in Purvis said that:

"... 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'."

The ADA uses the words "on the ground of", rather than "because of" but no different meaning is intended.

In the present circumstances in order to determine whether there has been differential treatment, a comparison must be made between the way Mr Fitzsimmons and Ms Markou treated Mr Murray and the way they would have treated a person of a different race in the same circumstances as, or circumstances which are not materially different from, those of Mr Murray. The onus is on Mr Murray to establish the discrimination.

The Appeal Panel in Burns v Laws (EOD) [2008] NSWADTAP 32 said the following in relation to the standard of proof that applies in discrimination matters:

136 Briginshaw is a case about the standard of evidence required to meet the burden of proof. It is doubtful whether Briginshaw needs to be incanted as ritually as it is in anti-discrimination law. See generally de Plevitz, 'The Briginshaw 'Standard of Proof' in Anti-Discrimination Law: 'Pointing with a Wavering Finger', (2003) 27 Melb Uni LR 308. See also the recent decisions, Qantas Airways Limited v Gama [2008] FCAFC 69 esp per Branson J at [123] ff; and Granada Tavern v Smith [2008] FCA 646 at [88]- [90].

Further in Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 (Chand) the Appeal Panel referred to the Federal Court's discussion of the "Briginshaw standard" in Qantas Airways v Gama [2008] FCAFC 69 [at 55] and concurred with the approach taken by Branson J [at 139] in the Gama decision, where Her Honour stated as follows:

The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises . . . that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved - and, I would add, the circumstances in which it is sought to be proved. [Branson J at [139] ]

In addition the Appeal Panel referred to s 140 of the Evidence Act 1995 at [56] in Chand. That section provides:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.

This Tribunal has followed the approach set out in Chand, including the factors set out in s 140 of the Evidence Act 1995.

Complaints against Vincent Fitzsimmons

It was submitted on behalf of Mr Murray that Mr Fitzsimmons treated him less favourably than he would have treated someone of a different race in the same circumstances or in circumstances, which are not materially different. The comparison was to be made with a hypothetical comparator and no evidence was advanced in respect of a real comparator.

The allegations made against Mr Fitzsimmons are:

(a) That he called Mr Murray an "Aboriginal rapist";

(b) That he failed to take into account Mr Murray's "Aboriginality", his membership of the Stolen Generations and his severely disadvantaged background when preparing the pre-release report for submission to the SPA;

(c) That he was generally biased against him and showed no empathy towards him by asking questions about deceased members of his family; and

(d) That he said that "none of that affects me because I was born in England".

All the allegations relate to the single interview conducted by Mr Fitzsimmons with Mr Murray on 26 November 2007.

It is common ground that Mr Fitzsimmons had been assigned as Mr Murray's PPO and that he had to prepare a pre-release report for submission to the SPA in respect of Mr Murray. The report was prepared pursuant to the requirements set out in the Community and Offender Services Policy and Procedure Manual.

Although Mr Fitzsimmons denied calling Mr Murray an "Aboriginal rapist", he admitted that he had discussed with him the reasons for his incarceration. He also admitted to discussing the fact that Mr Murray had not undertaken any programmes because of his grief over the death of his son in 2005 and his sister in 2007. Mr Fitzsimmons admitted to discussing with Mr Murray prior offences and his membership of the Stolen Generations. Mr Fitzsimmons also admitted to talking about being born in England and about his Irish forbears. The Tribunal accepts that Mr Fitzsimmons was attempting to establish rapport but that he was probably insensitive.

The Community and Offender Services Policy and Procedure Manual sets out in detail the requirements for the preparation of a pre-release report by a PPO. In respect of sex offenders a PPO is required to pay close attention to the offending behaviour as there is "often a high level of denial of the offences" and the PPO is also directed to evaluate the extent to which the inmate "accepts responsibility for this behaviour". The PPO is also directed to detail whether the inmate has undertaken a treatment programme and, if not, why not. Additionally, the PPO is required to more generally, include an overview of the inmate's education and employment history, other offences, and substance abuse, as well as the inmate's attitude to the offence, the victims of the offence, the inmate's offending history, the imprisonment, counselling and other factors that might influence the inmate's behaviour if released.

Mr Murray's case notes show that on 15 March 2006 he refused to participate in sex offender programmes because he was "part of the Stolen Generations". The note states that Mr Murray "avoided talking about his offences and addressing his behaviour". It was recommended that he talk with a psychologist. On 13 September 2006 the case notes reveal that Mr Murray indicated that he was willing to do the CUBIT programme but there appears to be some suspicion as to his motive. On 27 June 2007 the notes reveal that Mr Murray was not comfortable discussing his personal history with a PPO he did not know, but indicated that he was willing to do a sex offender programme, although he did not know which one. The case notes also reveal that despite his discomfort, he had disclosed that his son had died 12 months before and that he was still grieving that loss. He spoke at length about his membership of the Stolen Generations, his status as an elder in his community, his political activities and that he felt his sentence was harsh, but that "he was lucky that it was not a white girl".

The case notes completed by Mr Fitzsimmons regarding the interview on 26 November 2007 are in the Tribunal's view the best evidence of what occurred in the meeting. They were completed at the time and no complaint had yet been made. They state that:

"Inmate was polite but mostly wants to talk about the Stolen Generations and what is owed to him. Called me part of the monster of the system. Sees his situation as being a direct result of the invasion in 1788.

He has possibly a genuine grievance in that he was not permitted to attend the funerals of his son in 2005 and sister in 2007.

He stated that he accepts his guilt in the offence and feels terrible. However, he commenced to tell me about another inmate who sexually assaulted the victim's sister. He said that they (the victims) came to the Blok to buy drugs to take back to Wellington and that '...one got him for eight years and she got me for six'.

Also said "Who'd want to rape anyone from the Block?' (not in denial but in exasperation and disgust).

He questioned why I need to know about his brothers and sister when completing the PDF and he refused to sign permission to look at his JH file.

Still claims that he is lodging an appeal against the severity sentence. Denied that he had ever had similar convictions. However, he was convicted for Rape in 1980, which e appealed against and was still convicted. Claims he didn't do it.

Has done three sessions of PREP. Said that he hasn't got into programmes sooner because of grief over deaths of his family. Claims that he has ritual as well as personal responsibilities over the deaths.

Has not decided to do CUBIT, I advised that he is unlikely to get parole unless he does SOP, he said that he would be going to court about that as well.

He alternates between saying that gaol is not a problem to saying that he wants parole. Also said that he expects to die in gaol - not by suicide. Said that he can 'turn it off any time'."

144. On 29 November 2007 Mr Fitzsimmons recorded in the case notes:

...

Victoria Bel did Static 99 on 29/9/06. Result was HIGH risk - he is a candidate for CUBIT which he has refused to do so far. He will only consider CORE or PREP.

He told me earlier this week that he was refused permission to go to his son's funeral in 2005. However casenotes (sic) and report dated 11/11/2005 reveal that he was ambivalent about attending the funeral and he did not put in an application in time and he refused to speake (sic) with Mgr of Security about it. Apparently, he did not want to travel in a prison truck. The funeral was on 12/12/05 at Griffith.

....

The Tribunal was asked to prefer the evidence of Mr Murray over that of Mr Fitzsimmons, where their evidence has differed.

A conversation took place between Mr Fitzsimmons and Mr Murray on 26 November 2007 in the preparation of a pre-release report. Matters were discussed which are largely agreed upon. The matters discussed were matters which were required by the guidelines. The Tribunal accepts that Mr Fitzsimmons was doing his job in accordance with requirements. The Tribunal accepts that he questioned Mr Murray about his social background, about his family members, about his offences and the reason for his incarceration, his attitude towards his victim, past offences, and any sex offender programmes, which he had undertaken.

The Tribunal accepts that Mr Murray had an expectation, as he stated in oral evidence, that he would be released on parole and that when he was not, he concluded that he had been impeded by Mr Fitzsimmons and that Mr Fitzsimmons was implying that he was not good enough. Mr Murray's own evidence was that he had worked diligently in prison, had conducted himself well and taken responsibility for his crime by apologising to the victim and taking her to the medical centre for treatment. His own evidence was that he believed the PPO would act as his advocate.

The Tribunal accepts that Mr Murray may have felt uncomfortable and that he may have perceived that he was being called an "Aboriginal rapist", but the Tribunal accepts that there is no evidence that Mr Fitzsimmons was biased against him or that he treated him any less favourably than he would have treated someone who was a sex offender with the same history as Mr Murray but of a different race than Mr Murray. Mr Fitzsimmons was complying with the requirements set out in the procedures manual.

It may be said that he could have been more sensitive in his approach but the Tribunal notes that Mr Fitzsimmons was genuinely concerned about the possible refusal in respect of the funerals of Mr Murray's family members and in fact investigated this complaint. His investigations revealed that an application had been made, but that Mr Murray was ambivalent about attending. He does not appear to have explored this further and this may have been an omission in that he referred to it in the pre-release report. Mr Fitzsimmons stated that he felt that Mr Murray had been dishonest about this matter and this was reflected in his report. There is no evidence however, before the Tribunal that the report was unfavourable to Mr Murray because of his race. The principal reason for the unfavourable report was that Mr Murray had failed to complete any sex offender course by the time of the report and this was discussed with him by Mr Fitzsimmons.

Mr Murray has complained that Mr Fitzsimmons should have shown more empathy and understanding of his background and that his membership of the Stolen Generations and his grieving over the deaths of his family members should have been factors mitigating his failure to complete the sex offender treatment programme. This seems to be a fundamental misconception of the role of the PPO and of the requirement to undertake the sex offender course. Mr Murray had been classified as a high risk recidivist sex offender and the evidence shows that, for that reason, the completion of not only PREP, but another sex offender treatment programme such as CUBIT was a pre-requisite for release on parole.

The Tribunal is of the view that Mr Fitzsimmons would have treated another sex offender who had not completed the PREP course or any other sex offender course by the time of the interview in the same way as he treated Mr Murray and that he would not have recommended the release on parole of such a person.

Although it is not necessary for a complainant to show that the alleged discriminator intended to discriminate or set out "with motivation and purpose" (see IW -v- City of Perth (1997) HCA 30 per Kirby J), it is necessary that the complainant establish on the balance of probabilities that the discriminator acted "on the ground of" race in the subject circumstances.

The Tribunal is satisfied that Mr Murray's race played no part in the way that Mr Fitzsimmons conducted the interview with Mr Murray on 26 November 2007, that it played no part in the decision not to recommend parole and that it played no part in the preparation of an unfavourable report for the SPA. The Tribunal accepts that the reasons for the unfavourable report were that Mr Murray was a recidivist sex offender, who had not completed a sex offender treatment programme and in that way had not satisfied the Parole Office of the respondent that he understood the impact of his offence on the victim.

The complaints of discrimination in the provisions of goods and services against Mr Fitzsimmons are not substantiated.

Two Complaints against Deborah Markou

The first complaint concerned the events on 5 February 2008. The second complaint concerns the events on 13 February 2008.

It was submitted on behalf of Mr Murray that by not allowing Mr Murray to view the televised National Apology to the Stolen Generations of which Mr Murray is a member, Ms Markou failed to properly execute her duties and provide the services of a parole officer.

It is common ground that on 5 February 2008 Ms Markou went to see Mr Murray to discuss the supplementary report that she was required to prepare. Ms Markou worked part-time and had a limited amount of time to prepare the supplementary report.

Mr Murray's version of the exchange he had with Ms Markou on 5 February 2008 is that she was aggressive and unsympathetic, that she followed him into the storeroom where he was alone and that this frightened him and that she aggressively threw down the bundle of documents she had wanted him to sign, again frightening him. His evidence is that she was frustrated and intimidating.

Ms Markou's version of the exchange she had with Mr Murray on 5 February 2008 is best obtained from the case notes she prepared for that day. They state as follows:

"Saw inmate for him to sign SPA papers and in preparation of next report. Alan was initially reluctant to speak to me and I explained why I was seeing him and that whilst Vince was still his PPO, I would be writing the next report. Alan said that he had asked for an aboriginal PPO and I informed him that there were no aboriginal officers working at Long Bay PU. Showed Alan the papers and read through them. Questioned why he needed to sign. Explained that this was the process and if he would like them to reconsider then this is what needs to occur. Alan then went onto to call me a liar and a white liar and that I was judging him and that white people had been lieing (sic) for 200 years. Said that the last report was a lie. We both looked at the summary from the last report and I read through it asked Alan to tell me which part of it was incorrect. He reluctantly acknowledged that the first paragraph was true. However before I got a chance to read all of it, he stood up and walked off."

There is a second entry for 5 February 2008. It reads as follows:

"Having informed Asst Supt Jim Collins and Supt Crowley of what had occurred, Alan was called to have another chat with these officers present. We were shortly after joined by A/DM Michele Jordan. Alan said that he wanted an aboriginal PPO. Reminded him again that we did not have one at the Bay so he could not have one. Michele Jordan asked Alan if he wanted a hearing and if he did, he would need to sign the documents. Alan said he wanted one but did not want to sign any documents. Michele offered him more time to think about the matter and she would return to see him later."

Ms Markou's oral and written evidence is consistent with her case notes. In addition to what is in the case notes, Ms Markou stated that she did not throw the documents down because she could not leave them with him without his signature, which he refused to give and she would not follow a convicted sex offender into a storeroom in which he was alone.

The Tribunal prefers Ms Markou's version for the following reasons:

- The case notes reflect the fact that she tried to explain the content of the documents and to examine the report prepared by Mr Fitzsimmons in the light of Mr Murray's allegations that it contained lies;

- Ms Markou's version is supported by the evidence of Michele Jordan;

- Ms Markou sought assistance from two senior officers to explain the documents and why it was in his interests to sign them;

- Ms Markou and Ms Jordan tried to accommodate Mr Murray's request for an Aboriginal PPO, even though there was not one at Long Bay; they tried to obtain the assistance of an Aboriginal Welfare Officer;

- Ms Markou was an experienced PPO and the Tribunal accepts her evidence that she would not have placed herself in a situation that made her vulnerable by following Mr Murray into the storeroom; and

- The Tribunal does not accept that she threw down the documents leaving them behind, because following that portion of the meeting she organised to meet with two senior officers and a discussion ensued regarding the documents. The Tribunal accepts that she would not have left the documents behind without first obtaining Mr Murray's signature, which he refused to give.

The Tribunal is of the view that by 5 February 2008 Mr Murray was suspicious of Ms Markou and believed that she wanted him to sign something that would endorse or justify Mr Fitzsimmons' pre-release report. By that time he knew that the report was unfavourable. His suspicions would have made him wary and uncooperative and this fortifies the Tribunal's acceptance of Ms Markou's version of events.

The Tribunal is satisfied that Ms Markou handled a difficult situation with tact and courtesy on 5 February 2008, while at the same time trying to do her work. The Tribunal accepts that Mr Murray's signature was not compulsory but it also accepts that Ms Markou was trying to ensure that he had every opportunity to appear before the SPA, put his case and be legally represented. He indicated to her and to Ms Jordan that he wanted to appear and be legally represented at the upcoming hearing but did not want to sign any documents. Knowing his wish to attend and be represented, it was incumbent on Ms Markou to do everything she could to facilitate this.

The Tribunal is satisfied that Ms Markou did not treat Mr Murray less favourably on the ground of his race than she would have treated another inmate in similar circumstances but of a different race.

The complaint in respect of 5 February 2008 is not substantiated and is dismissed.

The second complaint against Ms Markou concerns the events on 13 February 2008.

Mr Murray claims that Ms Markou called for him to attend the Central Office over the public address system while he was engaged in watching the televised broadcast of the National Apology with other Aboriginal inmates. The respondent had been directed to allow Aboriginal inmates to watch the broadcast. It is alleged that Ms Markou disregarded the fact that Mr Murray had been stressed about the Apology day and as a result had not attended two PREP sessions.

Mr Murray alleged that he found this to be humiliating and distressing. He attended the Central Office and asked her to postpone the meeting because of his emotions. He considered that she was dismissive and undermined the impact of Mr Rudd's apology and that she had deliberately chosen that day to demean and humiliate him. He claimed that she was impervious to his grief and contemptuous of his Aboriginality.

It was submitted on behalf of Mr Murray that the Tribunal should not accept Ms Markou's evidence and explanation that she had watched the broadcast in the morning and then continued with her work in the afternoon and that she did not know that Mr Murray was likely to have been watching in the afternoon. It was submitted that it is not plausible that any adult in Australia would not have been conscious of the coverage of that day given the intensive advertising leading up to the event.

It was submitted that Ms Markou could have arranged the interview well before 13 February or for someone else to have undertaken it on 14 February as ultimately occurred. She should also have arranged for an Aboriginal Welfare Officer to have been present. It was submitted that Ms Markou treated Mr Murray less favourably than she would have treated another offender in similar circumstances and that she did so on the ground of his race.

Ms Markou states that her case load was intense, that she was working part-time, that 13 February was her last working day before the supplementary report was due on 14 February and that she waited until the afternoon before disturbing Mr Murray because she was aware that the National Apology was broadcast in the morning.

Ms Markou's case notes for 12 and 13 February 2008 are as follows:

12 February 2008

"PC (phone call) to Baljeet, Alan's overseer. He confirmed that Alan continues to work as a cleaner in his area. Said he is an excellent worker who is reliable and gets on well with staff and inmates."

12 February 2008

"PC from Victoria Bel, facilitator of PREP. She confirmed that Alan is enrolled in PREP. Has attended 8 out of a possible 10 sessions. Program runs for 14 sessions. Victoria stated that in every session so far, Alan has brought the conversation around to racial issues and makes constant reference to the Stolen Generations. Also complains that the group has a lack of cultural context and sensitivity. Alan informed Victoria that he would be taking time out from PREP due to the impending apology. Coincidentally, one of the sessions that he missed was when he was scheduled to do his disclosure. To date, has not referred to his victim, rather focuses on his own sense of victimhood."

13 February 2008

"Organised for Craig Madden, Aboriginal welfare officer to accompany me on interview with Alan. Originally arranged for Tuesday afternoon, however Craig cancelled. Waiting to hear back from Craig for another day."

13 February 2008

"PC from Victoria Bel. She said that she had seen Alan after our discussion yesterday and he said that he would like to rejoin the group next week. Victoria asked him if he would be willing to do his disclosure and he said that he would."

13 February 2008

" Having tried without success to reach Craig Madden, Paul Townley and Adam Schreiber for any of them to accompany me to interview Alan, I went to Area 3 and requested his case manager, SCO Brian Farrell to sit in the interview. Alan was called to the Central Officer. When he arrived Brian asked him if he would like to talk to me. Alan asked "why today" (Apology Day by Government). I acknowledged the significance and importance of day, however pointed put that his report was due tomorrow and I am part time so won't be back until Monday so needed to get the report written. Alan then told me to get the report written. I stated that I would like to write the report with his co-operation. Alan said "Not today" and walked off."

The Tribunal is of the view that the case notes are the best evidence because they were written prior to the complaints made by Mr Murray and there is no reason for them not to reflect what occurred. These case notes show that Ms Markou was taking her job seriously and working diligently to prepare her report for the SPA prior to 14 February 2008 when it was due, particularly given that she was working part-time and her last day prior to the deadline on 14 February 2008. They also show that she tried to involve an Aboriginal welfare officer in the interview with Mr Murray but without any success. The Tribunal however also accepts that the day of the National Apology was a very significant and important day for Mr Murray. The evidence shows that he had suffered significant trauma as a child and young person and that he had, for many years, been pre-occupied with being a member of the Stolen Generations and the plight of other Aboriginal people like himself. It is understandable that he would have been deeply affected by the National Apology and the recognition on that day of past shameful treatment of Aboriginal people such as himself. The interruption by Ms Markou could well have been perceived as being inappropriate, no matter what time of day, and that he would have justifiably felt annoyed. Ms Markou could have handled this situation with more tact, discretion and understanding. With hindsight, it is easy to see that the documents could have been arranged to be signed on 14 February 2008, as eventually occurred.

The Tribunal accepts however that Ms Markou was a diligent worker who was trying to do her best and that she was balancing competing priorities. The supplementary report prepared by her sets out some very positive remarks about Mr Murray but states clearly that he had not completed any sex offender treatment programme. Having said that, there is no evidence that Ms Markou treated Mr Murray less favourably than she would have treated any other sex offender for whom she was preparing a supplementary report for the SPA but who was not Aboriginal. The evidence to the contrary shows that Ms Markou was trying to complete her work in time, while at the same time taking account of the sensitivities of that day.

Mr Murray has not discharged the onus on him to establish on the balance of probabilities that Ms Markou's conduct on 13 February 2008 amounted to discrimination and this complaint is not substantiated.

The complaints are therefore dismissed.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

Decision last updated: 31 May 2011

Medium Neutral Citation:	Murray v Commissioner of Corrective Services, New South Wales Department of Corrective Services [2011] NSWADT 128
Hearing dates:	15 and 16 March 2010, 24 and 25 May 2010 and 5 August 2010
Decision date:	31 May 2011
Jurisdiction:	Equal Opportunity Division
Before:	Judicial Member E Grotte, Non-judicial L Monaghan-Nagle, Non- Judicial Member N Hiffernan
Decision:	The complaints of discrimination on the ground of race in the provision of goods and services are not substantiated and are dismissed
Catchwords:	Race Discrimination - Provision of Goods and Services
Legislation Cited:	Anti Discrimination Act NSW 1977 Evidence Act 1995
Cases Cited:	Burns v Laws (EOD) [2008] NSWADTAP 32 Qantas Airways v Gama [2008] FCAFC 69 Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 Dutt v Central Area Health Service [2002] NSWADT 133 Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5I W v City of Perth (1997) HCA 30
Category:	Principal judgment
Parties:	Allan David Murray (applicant) Commissioner of Corrective Services, New South Wales Department of Corrective Services (respondent)
Representation:	Ms Phillipa Gormly for applicant Ms T L Jowett for respondent Logical Legal for applicant Glenn Singer for respondent
File Number(s):	091016