Richard v Director General, Department of Justice and the Attorney General (Corrective Services NSW)
[2011] NSWADT 158
•29 June 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Richard v Director General, Department of Justice and the Attorney General (Corrective Services NSW) [2011] NSWADT 158 Hearing dates: 4 February and 10 June 2011 Decision date: 29 June 2011 Jurisdiction: Equal Opportunity Division Before: R J Wright SC - Judicial Member,
M O'Sullivan - Non-Judicial Member
B Field - Non-Judicial MemberDecision: The Tribunal orders:
1. The complaint be amended under s 103 of the Anti-Discrimination Act so as to include:
(a) in respect of the three grounds of complaint which were referred to in the Report of the President of the Anti-Discrimination Board, relevant conduct occurring after 10 May 2010; and
(b) the ground of complaint concerning the traineeship flyer.
2. The complaint be dismissed in whole.
Catchwords: Race Discrimination - Goods and Services - Direct Discrimination Legislation Cited: Anti Discrimination Act 1977 (NSW)
Anti Discrimination Amendment (Miscellaneous Provisions) Act 2004 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Apprenticeship and Traineeship Act 2001 (NSW)
Vocational Education and Training Act 2005 (NSW)
Crimes (Administration of Sentences) Regulation 2001 (NSW)
Crimes (Administration of Sentences) Regulation 2008 (NSW)
Racial Discrimination Act 1975 (Cth)Cases Cited: Contreras-Ortiz v Commissioner, Department of Corrective Services [2009] NSWADT 12
MacDonald v Puplick [1998] NSWSC 428
Wollongong City Council v Bonella [2002] NSWADTAP 26
Sydney University Post Graduate Representative Association v Minister for Transport Services [2006] NSWADT 83
Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202Category: Principal judgment Parties: Denis Richard (Applicant)
Director General, Department of Justice & the Attorney General (Corrective Services NSW) (Respondent)Representation: Counsel
N Sharpe (Respondent)
D Richard (Applicant in person)
Department of Corrective Services (Respondent)
File Number(s): 101097
REasons for decision
Introduction
EQUAL OPPORTUNITY DIVISION [R J WRIGHT SC - JUDICIAL MEMBER, M O'SULLIVAN - NON-JUDICIAL MEMBER, B FIELD - NON-JUDICIAL MEMBER]: The Applicant, Mr Denis Richard, is and was at the material times an inmate in the Bathurst Correctional Centre. The Respondent ( the Department ) is the Director-General of the department of the New South Wales government responsible for administering correctional centres and dealing with inmates in New South Wales. The relevant part or division of the department is known as Corrective Services NSW and the head of Corrective Services NSW is the Commissioner of Corrective Services. There is no dispute that the Department is responsible for the acts and omissions of the officers of Corrective Services NSW.
In summary, Mr Richard's complaint is that as an inmate at the Bathurst Correctional Centre he was discriminated against by the Department on the ground of race (in particular, his French Citizenship):
(1) by being denied a classification which would enable him to participate in meaningful work because he is subject to a deportation order;
(2) by having his request for an urgent review of his classification ignored for 6 weeks;
(3) by the officers of the Department refusing or failing to apply the decision of the Tribunal in Contreras-Ortiz v Commissioner, Department of Corrective Services [2009] NSWADT 12 in relation to his classification review;
(4) by being excluded from participating in a traineeship program offered at Bathurst Correctional Centre because he did not meet the eligibility requirement of being an Australian Resident, including holding a current residency visa not subject to cancelation.
Background
Mr Richard was born in France in 1956 and is a French citizen. He has never been an Australian citizen nor has he ever held a visa which would permit him permanently to reside in Australia.
Mr Richard came to be an inmate in the following circumstances. On 16 July 2006, he was apprehended at Sydney Airport with 6 suitcases containing a cream coloured powder concealed within the frame structure of the suitcases. The total net weight of the powder was subsequently determined to be 2250.9 grams. The powder tested positive for cocaine. An analysis conducted by the Australian Forensic Drug Laboratory indicated that the calculated pure weight of cocaine found was 1685.5 grams. The Applicant was taken into custody on that day and charged with importing into Australia a marketable quantity of a border control drug, namely, cocaine contrary to s 307.2 of the Criminal Code (Cth). The offence carried a maximum penalty of 25 years in prison.
On 8 December 2006, Mr Richard pleaded guilty to the charge and was sentenced to 9 years of imprisonment with a non parole period of 5 years and 6 months, back dated to when he was first taken into custody. Accordingly, his head sentence expires on 15 July 2015 but his non parole period ends on 15 January 2012. His earliest possible release date is 15 January 2012. On conviction and sentencing Mr Richard became an inmate under the management and control of Corrective Services NSW.
Classification of Inmates and Related Matters
Regulation 12 of the Crimes (Administration of Sentences) Regulation 2001 (which in relevant regards appears to be materially the same as the Crimes (Administration of Sentences) Regulation 2008 which replaced it) required a case plan to be prepared and adopted for each inmate in a correctional centre as soon as practicable after the inmate was received into the centre. Under reg 13 of that Regulation an inmate's plan must indicate, among other things, the inmate's classification and the correctional centre at which the inmate was to be held for the time being. This latter aspect is sometimes referred to as the "placement". Other regulations specified the procedures for preparation, review and adoption of case plans.
Under reg 22 of the Crimes (Administration of Sentences) Regulation each male inmate in a correctional centre in New South Wales is classified into one of a number of categories for the purposes of security and the provision of appropriate development programs. Regulation 22 provided (and reg 22 of the 2008 Regulation provides):
(1) Each male inmate is to be classified in one of the following categories for the purposes of security and the provision of appropriate development programs:
"Category AA", being the category of inmates who, in the opinion of the Commissioner, represent a special risk to national security (for example, because of a perceived risk that they may engage in, or incite other persons to engage in, terrorist activities) and should at all times be confined in special facilities within a secure physical barrier that includes towers or electronic surveillance equipment.
"Category A1", being the category of inmates who, in the opinion of the Commissioner, represent a special risk to good order and security and should at all times be confined in special facilities within a secure physical barrier that includes towers or electronic surveillance equipment.
"Category A2", being the category of inmates who, in the opinion of the Commissioner, should at all times be confined by a secure physical barrier that includes towers, other highly secure perimeter structures or electronic surveillance equipment.
"Category B", being the category of inmates who, in the opinion of the Commissioner, should at all times be confined by a secure physical barrier.
"Category C1", being the category of inmates who, in the opinion of the Commissioner, should be confined by a physical barrier unless in the company of a correctional officer or some other person authorised by the Commissioner.
"Category C2", being the category of inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times but who need some level of supervision by a correctional officer or some other person authorised by the Commissioner.
"Category C3", being the category of inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times and who need not be supervised.
In Chapter 7 (Case Plan) of the Operations Procedures Manual of Corrective Services NSW at page 63 it is stated:
Every case plan should, as far as possible, allow for progression towards the lowest security rating (C3...) and access to pre-release leave programs before the inmate's earliest possible release date.
An inmate may in certain circumstances undertake work while serving his or her sentence. The Crimes (Administration of Sentences) Act 1999 (NSW) provides in s 6(2):
(2)The general manager may direct a convicted inmate, or such classes or groups of convicted inmates as the Commissioner may from time to time determine, to carry out community service work, or any work for Corrective Services NSW or a public or local authority:
(a)within the correctional centre in which the inmate is imprisoned, or
(b)within the correctional complex in which the inmate is imprisoned but outside the correctional centre, or
(c)outside the correctional complex in which the inmate is imprisoned.
Section 26(1) of the same Act empowers the Commissioner to issue a local leave permit to permit an inmate to be absent from a correctional centre and the purposes for which such a permit may be issued include work outside a correctional facility as set out in subs 26(2). That subsection provides in part:
(2)Without limiting subsection (1) (b), the purposes for which a local leave permit may be issued include the following:
...
(f)enabling an inmate to apply for work or attend an interview with an employer or prospective employer,
...
(h)enabling an inmate to engage in employment specified in the permit, ....
It is also relevant here to note that in Chapter 18 of the Operations Procedures Manual it is stated at section 18.1.7 which is headed "Eligibility Criteria for All External Leave Programs":
In order to be eligible for an external leave program, an inmate must:
be serving a sentence of 12 months or more (male inmates);
have a C3 classification (male inmates) ...;
be an Australian citizen or be approved by the Commissioner through the SORC or Directors' Review Committee for progression to C3 ...;
...
Serious Offenders/Public Interest inmates must be within 12 months of the earliest possible release date (non-parole period) and have served half the minimum term. ...
Thus in order to be issued with a local leave permit to engage in work outside a correctional centre it appears necessary that a male inmate must be within 12 months of his earliest possible release date and have a C3 classification or be approved for progression to a C3 classification.
Classification of inmates by Corrective Services NSW is also guided by the Inmate Classification and Placement Procedures Manual (November 2005 Interim) which, we are told, is Chapter 2 of the Operations Procedures Manual. A number of the relevant provisions in the Manual relate to " public interest inmates ". The definition of " public interest inmate " was apparently amended on 8 December 2008 by the Commissioner and included a new criterion of " unlawful non-citizens ", although it appears from other material that a similar criterion may have existed previously. This amendment along with other changes were communicated to officers of the Department by email from Terry Halloran on 10 December 2008 in which it was said, among other things:
On the 8.12.08, the Commissioner amended the Public Interest Criteria and the Section 6(2) Policy as follows. These amendments are to take effect immediately and apply to all inmates who are currently serving a sentence for conviction.
Public Interest - A new criterion
Unlawful Non-Citizens
An inmate on a current conviction for offence(s) committed while the inmate was not an Australian citizen or the holder of a visa giving permanent residency.
NOTE - This criterion applies to persons holding temporary visa status.
Section 18.1.11 of Chapter 18 of the Manual provides that:
Serious Offenders/Public Interest Inmates will only be permitted to participate in External Leave Programs if the Commissioner has granted approval following consideration and recommendation from the Serious Offenders Review Council (SORC) or its sub-committee the Pre-release Leave Committee (PRLC) for their participation.
....
With regard to approval for Serious Offenders/Public Interest inmates to work outside a correctional centre refer to section 18.7.2.
Chapter 14 (Classification, Placement and Case Plan Reviews) of the Manual includes item 23 which provides:
Eligibility for progression to C3... is to be in accord with departmental policy, or in the case of serious offenders and public interest inmates, with the Commissioner's guidelines. Policy and Guidelines stipulate a time left to serve component calculated on the earliest possible release date.
In addition, from 1 November 2005 until about late 2008 the Commissioner applied a policy in relation to " inmates of interest to Immigration ", such as Mr Richard, which effectively provided that, absent " exceptional circumstances ", persons liable to be deported when released after serving their sentences because they were unlawful non-citizens could not progress beyond a C1 classification or be considered for a direction under s 6(2) or the issuing of a local leave permit under s 26(2) enabling work outside a correctional centre. This was the policy, sometimes called the Section 6(2) Policy ( the "Section 6(2) Policy") which was the foundation for the finding by the Tribunal of unlawful racial discrimination against an inmate by the Department of Corrective Services (as it then was) in Contreras-Ortiz v Commissioner, Department of Corrective Services [2009] NSWADT 12.
Revision of the Section 6(2) Policy in the light of the Contreras-Ortiz decision was notified in the email of Terry Halloran dated 10 December 2008 (referred to above) in the following terms:
Section 6(2) Policy amendment
When it is proposed that an inmate who is an unlawful non-citizen participate in an activity which is to occur outside a correctional centre On/Off complex or property, the Commissioner must approve the issuing of a Section 6(2) order after consideration of recommendation by the PRLC.
NOTE - This amendment applies also to persons holding temporary visa status. Clearly when the inmate is a Serious Offender, application for approval will continue through the SORC process.
In the case of Unlawful Non-Citizens, the General Manager is NOT delegated to approve Section 6(2) On complex/property. Section 6(2) On property as well as Section 6(2) Off must go through the PRLC (SORC - Serious Offender).
Commissioner's Instruction 13/2006 will be amended. The amendment will mean that unlawful non-citizens will be able to progress below C1 ..... The amendment to this Instruction will occur as a result of the findings of the Administrative Decisions Tribunal of New South Wales in the case of Carlos Contreras-Ortiz, dated 19.11.08.
....
On 23 March 2009, the Commissioner issued Commissioner's Instruction 2/2009 whereby Commissioner's Instruction 13/2006 was replaced. Instruction 2/2009 included the following:
In response to the need to streamline the exchange of information between this Department and the Commonwealth Department of Immigration and Citizenship (DIAC) and to ensure that all inmates being considered for progression below C1... are considered on their merits, the following procedures are to be implemented immediately.
...
Inmates of Interest to DIAC
These procedures apply only to those inmates who are deemed to be of interest to DIAC. Such inmates are:
a)inmates who are not Australian citizens;
AND who are
b)serving a total sentence of 12 months of more; OR
...
e)public interest inmates
...
Classification protocols
Prior to any consideration of progressing an inmate beyond C2D..., the Classification and Case Management Review Coordinator at each centre is to check OIMS to establish whether the Inmate is a person of interest to DIAC. If an alert is on OIMS, the Classification and Case Management Review Co-ordinator is to contact DIAC to ascertain the inmate's current immigration status.
...
Inmates who are non citizens and who remain of interest to DIAC and in that they are to be deported/removed or about whom DIAC has yet to make a decision are to be managed as follows.
i) Un lawful Non-Citizen
"Unlawful non citizen" refers to an inmate who had no valid visa at the time of his or her incarceration.
A recent decision by the Administrative Decisions Tribunal has determined that it is discriminatory to automatically exclude all unlawful non-citizens from progression below C1... classification and from access to work or programs outside a correctional centre.
Accordingly, "Unlawful Non-Citizens" have been added to the 'Public Interest Criteria' for the purposes of considering an inmate's progression to work or programs outside a correctional centre.
Consequently, the Classification and Case Management Review Co-ordinator must refer all unlawful non citizen inmates to the Pre-Release Leave Committee (PRLC), a sub-committee of the Serious Offenders Review Council, for consideration of progress beyond C2D... or for the issue of a section 6(2)/26 order. The PRLC will make a recommendation to the Commissioner for his determination. ... Each case will be considered on its merits.
Mr Richard's Classification and Placement up to December 2009
Having been apprehended in July 2006, on 20 August 2006 while on remand, Mr Richard received his initial remand classification. He was categorised as an A2U inmate. The "U" in this classification refers to the fact that at that time Mr Richard was unsentenced.
By 12 September 2006, the Department had received notification that Mr Richard was of interest to the Federal Department of Immigration and Citizenship ("DIAC") and was not to be released without prior contact with that department. The aim of this notification was to ensure that DIAC could deport Mr Richard upon his release from custody as he would then be an unlawful non-citizen subject to removal from Australia.
Having been convicted and sentenced on 8 December 2006, Mr Richard was classified on 13 December 2006 as a category B inmate. At this time boxes were ticked on his Initial Case Plan Classification and Placement file indicating that he was a "Public Interest Inmate" and was "Of interest to DIMA". In the handwritten notes it was recorded that he was a "Deportee" and that his English was very poor and he was to participate in English as a Second Language (or ESL) classes. He was given a placement at Junee Correctional Centre ("Junee CC").
Mr Richard was transferred from Parklea Correctional Centre to Bathurst Correctional Centre ("Bathurst CC") on 4 January 2007 and apart from approximately 3 months at Junee CC in May to August 2007 has remained at Bathurst CC ever since.
On 5 July 2007, a member of the "NSW Prison Removals Team" of DIAC wrote to the Administrator of Junee CC concerning Mr Richard and informed the Administrator that on 30 June 2007 a bridging visa had been granted to Mr Richard. The letter went on to say:
This bridging visa will maintain his lawful status for the duration of his period of imprisonment and/or any period during which he is subject of a periodic release order. This bridging visa does not prohibit his participating in work release or study programs, subject to the approval of the Department of Corrective Services, whilst serving his sentence.
The bridging visa will cease on any one of the following events, whichever occurs first:
1.Unconditional release from imprisonment (eg. release on parole, home detention, etc);
2.Escape from imprisonment;
3.Completion of any term of periodic release (eg. work or study release);
4.Breach of any condition of periodic release;
5.Release from remand (where applicable).
When the bridging visa ceases the above named will become an unlawful non-citizen and subject to immigration detention and removal from Australia. Removal will be implemented as soon as practicable after the prisoner is released to parole or completes his sentence and/or his term of periodic release. If needs be, when the prisoner's sentence of criminal detention ceases, he will be detained under section 189 of the Migration Act 1958 by an immigration officer and your gaol will be requested to hold the prisoner in immigration detention, on behalf of the Department of Immigration and Citizenship, until he is removed or transferred to an Immigration Detention Centre. (Underlining in the original)
A review of Mr Richard's classification and placement was carried out at the Junee CC in late July 2007. It was recommended that he retain a classification as a category B inmate but his placement be Bathurst CC. The comments that accompanied the recommendation included:
Inmate currently housed and managed as a normal Discipline status. the offender requests Bathurst placement. ... Inmate is of interest to DIAC (Immigration) and openly stated during the interview he was a French Citizen. Inmate needs to engage in ESL education at his gaol of classification. Willing to work to gain and maintain employment. PRLC.
The reference to "PRLC" is apparently a reference to the Pre-Release Leave Committee, a sub-committee of the Serious Offenders Review Council. All inmates of interest to DIAC, being an "unlawful non citizen inmates", were required to be referred to PRLC for consideration for progress beyond a C2 classification under Instruction 2/2009 referred to above.
From the accompanying documentation it appeared that Mr Richard's co-operation with staff had been good but he had not attended the ESL classes and this was said to be required "prior to further program participation".
The recommendation was approved on 25 July 2007 and accordingly Mr Richard remained a category B inmate but his placement was changed to Bathurst CC. In giving her approval, the Manager Classification noted, among other things:
*To participate in ESL
*Un-lawful non-citizen
*Nil OIC's [that is, offences whilst in custody]
*Will need to attend AOD Awareness type course [that is, one relating to abuse of alcohol and other drugs]
*Comply case plan & CC [correctional centre] routine
A further review of Mr Richard's classification was undertaken in late November and early December 2007 after he had been transferred to Bathurst CC. Once again it was noted that he was a public interest inmate of interest to DIAC. He had had no contact with the Education, Drug and Alcohol or psychological services and had not undertaken the programs nominated in his case plan but it was noted that he was "Good in wing. Communicates well with staff. Stable inmate who doesn't appear to present any management concerns." The recommendation was that he remain in category B with placement at Bathurst CC. The comments accompanying the recommendation included:
*Inmate Richard is currently stable in both his employment & living.
*Richard still has a considerable period of time to serve ...
This recommendation was also approved by the Manager Classification on 3 December 2007 with the following comments:
6 mth Review - to remain as is
EPRD [earliest possible release date] 15/1/12
Deportee states [status?]
No contact with programs
Works in tech 2 with good reports
Will need to undertake appropriate AOD courses Maintain employment and good reports Comply case plan and [handwriting unclear] self refer other services as required
The next 6 monthly review of Mr Richard's classification occurred in late May/early June 2008. In this review it was noted that Mr Richard:
was attending [handwriting unclear] classes in early 2007 [should this be 2008?] he signed a refusal of education services on 18/2/08
We [the Education Service] have had no contact since this time.
Once again the recommendation was a category B at Bathurst. The comments accompanying the recommendation were:
-Of interest to Immigration
-Completed 2 yrs of 6 yr term
-Needs assessment with AO&D
-Unwilling to present for programmes
-Unwilling to pursue education
-Lengthy time remaining
This recommendation was approved on 5 June 2008 with comments which included:
Offenders refusal of programs & education noted. Continue with employment. Maintain good behavioural standard.
On 19 November 2008, the Tribunal handed down its decision in Contreras-Ortiz v Commissioner, Department of Corrective Services [2009] NSWADT 12. The Tribunal found that the Department by applying the policy dating back to November 2005 referred to above in relation to inmates of interest to Immigration had racially discriminated against Mr Contreras-Ortiz.
The next review occurred in November 2008 at the Bathurst CC. At this review it was noted that Mr Richard "works at technology 1 at BCC - quality control section - has excellent work performance reports." His work goal in custody was recorded as "qualified Baker, would like to work in this field. Would like C1." The case management team's recommendation was category B at Bathurst. Their comments were:
-EPRD - 15/1/12
-Immigration interest - french national
-Public interest inmate
-Excellent work reports
-Nil custodial issues
-Needs to continue with current work & behaviour standard
-Continue to adhere to CC routines
-Inmate continues to deny the need for any education or rehabilitation programs
The Manager Security commented on this recommendation: "Bit far out for a C1. 'B' appropriate".
The recommendation of category B at Bathurst was accepted by the Manager Classification & Placement on 27 November 2008 with the following comments:
Nil Court EPRD 15/1/12 (PRLC)
DIAC Immigration issues (Deportation)
Nil OIC's noted
Positive work reports
Note reluctance to undertake offence related programs - may not be appropriate as per offence dynamics
Maintain employment
Comply centre routine
Address offending behaviour if required
May be appropriate for C1 next review if conduct appropriate and attends programs as required
As has been noted above, steps were taken by the Commissioner in early December 2008 to address the discrimination arising out of the application of the 2005 policy concerning inmates liable to be deported on completion of their sentences. Orders were made by the Tribunal in the Contreras-Ortiz matter on 20 January 2009. On 23 March 2009, the Corrective Services Commissioner issued Instruction No 2/2009 the relevant portions of which have been set out above.
There was no 6 monthly review of Mr Richard's classification and placement in mid-2009. The Department appears to have moved to a computerised classification review system during 2009 and a trial of 12 monthly reviews. As at the beginning of December 2009, Mr Richard was a category B inmate at Bathurst CC. During December his classification was reviewed and it is that review which forms the starting point of Mr Richard's complaint.
The Complaint
At the December 2009 review, Mr Richard was reclassified as a C1 inmate but continued to be placed at Bathurst CC. His request for placement at Cessnock, Silverwater or JMI as a C1 or C2 was refused. He says he was told that the reason for that refusal was that he was to be deported and was not eligible for a C2.
Mr Richard wrote a letter to the Manager of Classification, Bathurst CC dated 11 April 2009 raising his concerns and seeking an urgent review of his classification and placement. The letter continued:
About 4 months ago I was classified as a C1, (Placement Bathurst) and denied a request for placement to Cessnock, Silverwater or JMI as a C1 or C2. The reason I was told was that because I was to be deported and I was not eligible for a C2. Now this is wrong and contrary to law. I would bring your attention to the case of:- Contreras-Ortiz v The Commissioner Corrective Services [2009] NSWADT 12 in the Administrative Appeals Tribunal [sic] (File No 071077)
Perhaps you could contact the legal section of Corrective Services Head Office to confirm this.
I have qualifications as a baker + pastry cook and wish to transfer to another jail so as to be able to adequately support myself with a reasonable wage etc.
Simularly as I have no charges etc and am not required to participate in any programs there should be no impediment as to why I should not be granted a C2 as I now have only 21 months to my release. I do no wish to go to X Wing as there is no meaningful work available there.
I have attempted to speak with the officer in charge of classification with a view to having my matter reconsidered but have been frustrated in my attempt to do so for the past 4 months.
Consequently I am now presenting my case to you by way of letter.
I respectfully request that you give this matter your urgent attention and expect a response within 7 days
A copy of this letter is also being forwarded to the Anti-Discrimination Board should I need to follow the matter further.
Mr Richard did not receive any response to this letter and as a result, lodged a complaint with the Anti-Discrimination Board by letter dated 24 April 2010 which was received by the Board on 10 May 2010.
The letter to the Board contained the following, among other things:
Re: Discrimination on the Grounds of Being a Foreign National and Possible Deportation Upon Release from Custody. (French Citizen)
Dear Sir
I sent you a copy of a letter addressed to the Classification Officer at Bathurst outlining my complaints and wrongful (illegal) treatment regarding the Departments refusal to participate in programs, progress to a lower classification, transfer to another facility with more meaningful work considering my background and qualifications (Hotel manager, Qualified baker/pastry cook, Instructor/overseer of apprentice pastry cooks etc). [See copy of letter enclosed]
It is now two weeks since I hand delivered the letter to the Classification Officer at Bathurst and even though he is a full time employee and works solely in that capacity I have had no response what so ever.
This problem has been going on since Nov 09 and every response I get is denial or avoidance. I have been continually deceived and lied to in regards this issue. I have been told that I cannot progress because of my nationality/deportation. ...
Mr Richard sent a further letter dated 30 May 2010 to the Board. That letter was received on 3 June 2010. In that letter, Mr Richard wrote:
Further to my complaint I would like to add the following submissions and material.
1.In response to my letter of 11/4/10 addressed to the Manager of Classification (Bathurst) detailing my complaint and requesting an urgent review within 7 days I was informed verbally yesterday (29/5/10) of the following:-
My letter has sat in the office for the past 6 weeks and the officer has only just become aware of my complaint. [I consider this unacceptable as my complaint was hand delivered]. He then asked me if I wished to lodge an application for a review of classification (this would entail a further delay of 6 weeks to hear my case). I informed him that I did not intend any further delays and that my letter of 11/4/10 was self explanatory. ...
2.Enclosed is a flyer from the Education Section (Bathurst) advertising traineeships for inmates. As can be seen from the highlighted section the policy is discriminatory and contrary to [the decision in Contreras-Ortiz v Commission of Corrective Services [2009] NSWADT 120.] ...
The flyer referred to in that letter stated in part:
GET QUALIFIED
While you get paid to work!!
TRAINEESHIPS
Now available at Bathurst
To be eligible you MUST ....
*Already sentenced, not on appeal or have further charges
*Classified to Bathurst ...
*Have 12 months or more left to serve
*Be an Australian resident (hold a current residency visa not subject to cancellation)
....
*Have a track record for finishing courses and stuff.
....
After the Department requested an extension of time in which to respond and Mr Richard objected to that course, the President of the Anti-Discrimination Board referred the complaint to the Tribunal under s 93C(c) of the Anti-Discrimination Act 1977 (NSW) ("the ADA") by letter dated 11 August 2010. Attached to that letter was the President's Report, which was admitted into evidence by the Tribunal.
The President's Report noted that the complaint concerned racial discrimination in relation to the supply of goods and services said to be unlawful under s 19 of the ADA by operation of s 7 of that Act. The Department was said to be liable for the acts of its officers or employees under s 53 of the ADA. The period of complaint was stated to be "November 2009 - 10 May 2010".
The grounds of complaint identified in the President's Report are, in substance, that as an inmate at the Bathurst Correctional Centre Mr Richard was discriminated against by the Department on the ground of race (in particular, his French Citizenship) in relation to his classification and work release because:
1)He was denied a classification which would enable him to participate in meaningful work because he was subject to a deportation order;
2)His request for an urgent review of his situation had sat in the office for 6 weeks unactioned;
3)The Commissioner ignored the decision of the Tribunal in Contreras-Ortiz v Commissioner, Department of Corrective Services [2009] NSWADT 12 and Mr Richard's situation was no different from that of Mr Contreras-Ortiz.
It will be noted that the President did not, in his report, refer to the flyer concerning traineeships about which Mr Richard complained in his letter to the Anti-Discrimination Board of 30 May 2010. Nonetheless, this and all of the other matters listed above were addressed during the hearing.
Further Matters Arising After the Complaint
At his yearly review in December 2010 Mr Richard was reclassified as a category "C2D" inmate. This is not a classification which appears in reg 22. In response to a question from the Tribunal, the Department informed us that the category "C2D" is the same as category C2. The "D" is an internal Corrective Services notation which flags that an inmate is liable to deportation and that the Department of Immigration and Citizenship must be notified prior to release. The Tribunal was told that no other consequences flowed from the classification as C2D rather than C2. It should be noted that Mr Richard disagreed with that view and contended that a C2D classification was effectively equivalent to a C1 classification and complained about this December 2010 classification review at the hearing as well.
In addition, at the hearing Mr Richard raised for the first time, as far as the Tribunal is aware, a potential complaint of victimisation.
These circumstances give rise to a number of procedural matters concerning the complaint which the Tribunal must address before it can embark on a substantive consideration of the matter.
Procedural Matters
The first matter relates to what may be included in the complaint and dealt with by the Tribunal. As a general rule, a complaint cannot include acts which occurred after the complaint was lodged - see MacDonald v Puplick [1998] NSWSC 428 (Simpson J) and the Appeal Panel's decision in Wollongong City Council v Bonella [2002] NSWADTAP 26 at [75]. This principle continues to operate notwithstanding the amendments to the ADA effected by the Anti Discrimination Amendment (Miscellaneous Provisions) Act 2004 - Sydney University Post Graduate Representative Association v Minister for Transport Services [2006] NSWADT 83 at [24]. Those amendments, however, included sections which conferred powers to amend a complaint. In particular under s 91C of the ADA the President is now empowered to amend a complaint after it has been made and under s 103 the Tribunal may amend a complaint at any stage of proceedings and may amend it to include additional complaints and anything else not investigated by the President. If these powers of amendment are exercised, acts and matters arising after the initial complaint was lodged can be included in the complaint - Sydney University Post Graduate Representative Association v Minister for Transport Services [2006] NSWADT 83 at [24].
As noted above, the complaint was lodged on 10 May 2010 and the period of the complaint is identified in the President's report as November 2009 - 10 May 2010. The first allegation of discrimination concerns the review of Mr Richard's classification in which he was refused a C2 classification. This took place in November and December 2009 and thus was within the period and occurred before the complaint was lodged. No problem arises in relation to the Tribunal dealing with that aspect of the complaint.
The second ground relates to alleged discrimination against Mr Richard because of failure to respond for 6 weeks to his letter of 11 April 2010 seeking review of his classification based on the Tribunal's decision in Contreras-Ortiz v Commissioner, Department of Corrective Services [2009] NSWADT 12. From the time periods involved, it is obvious that some of the conduct complained of extends beyond 10 May 2010. Consequently, there may be some difficulty with the Tribunal dealing fully with this ground of complaint, in the absence of an amendment.
The third ground relates to alleged discrimination because the Departmental officers have failed to apply or comply with the orders in the Contreras -Ortiz matter. Although no time is specified in this regard, it appears to the Tribunal that this ground of complaint essentially covers the same conduct as is the subject of the first two grounds and thus suffers from the same problem as was identified in relation to the second ground.
The fourth ground of complaint relates to discrimination based on the exclusion of non-Australian residents from traineeships as indicated on the flyer already referred to. It is unclear when the flyer was published. It was raised by Mr Richard for the first time in his letter of 30 May 2010. Accordingly, it is unclear whether any refusal to provide services or other discriminatory conduct occurred prior to the lodging of the original complaint on 10 May 2010.
It should be noted here that the Department did not take any issue with the Tribunal determining each of these four grounds of complaint. Evidence was adduced in relation to each and in its written submissions the Department clearly identified the four limbs of Mr Richard's complaint and made comprehensive submissions in relation to each.
In these circumstances, the Tribunal would be loathe to allow the hearing of Mr Richard's complaint to be open to challenge on the technical ground that some of the conduct to which the complaint relates occurred after the complaint was lodged with the President of the Anti-Discrimination Board.
As noted above, under s 103 of the ADA the Tribunal has power on its own motion to amend a complaint at any stage in proceedings relating to the complaint and in so doing may include additional complaints. If this power is exercised, acts and matters arising after the initial complaint was lodged can be included in the complaint - Sydney University Post Graduate Representative Association v Minister for Transport Services [2006] NSWADT 83 at [24]. Accordingly, if the Tribunal amended Mr Richard's initial complaint so as to include all the matters raised in the second, third and fourth grounds identified above, they could be dealt with by the Tribunal without the need for Mr Richard to lodge new complaints with the President of the Anti-Discrimination Board.
In these circumstances and given that the Department came prepared and was able to deal with all four grounds at the hearings, the Tribunal considers it appropriate in the circumstances to amend the complaint under s 103 of the ADA to the extent necessary so as to include in it each of the four grounds of complaint set out above. An order to this effect will be included in the orders made by the Tribunal in this proceeding.
The second preliminary matter relates to further allegations raised by Mr Richard. By a facsimile dated 21 December 2010, Mr Richard who by this time was unrepresented, sent to the Tribunal a four page document headed "Submission Notes". In those notes, Mr Richard submits under the heading "Discrimination:-" material including the following:
I believe that Mr Bullock (and the Department of Corrective Services as his employer) discriminated against me simply because of my nationality.
At my CMT he made the decision after 15 seconds to give me a C2D, the sole reason being because I hold a French passport (non-citizen).
The classification review which was the subject of the complaint lodged on 10 May 2010 occurred in December 2009. At this review Mr Richard was given a C1 classification. The classification review being referred to by Mr Richard in his Submission Notes is the one which occurred in December 2010 and resulted in his being classified as C2D. This is not the classification review the subject of the complaint lodged on 10 May 2010. There has been no formal complaint lodged with the President of the Anti-Discrimination Board in relation to any alleged discrimination in relation to this review. Further, the Department made it clear at the hearing that it was in a position and prepared to deal with the 4 grounds of complaint identified above but was not in a position or prepared to deal with this additional allegation of discrimination in relation the December 2010 review. This claim raises allegations that are entirely separate from what occurred in relation to the December 2009 classification review and its related circumstances. Given the different subject matter and the difficulties for the Department in knowing what case it had to meet, the Tribunal did not consider it appropriate to amend the complaint so as to include this additional claim of discrimination.
A similar situation arises in relation to matters raised by Mr Richard for the first time at the hearing of the matter. Mr Richard who was unrepresented appeared at the hearing by telephone link from Bathurst CC. During his oral presentation Mr Richard put before the Tribunal that because he had complained to the Anti-Discrimination Board he was left alone, he received no help, he never got work and he was assigned to X Wing at Bathurst CC. If conduct of this type occurred, it might amount to victimisation within s 50 of the ADA, depending on the circumstances. When asked, the Department said that they were not in a position to deal with such an allegation at the hearing on 4 February 2011. Without amendment of the complaint, this is another matter which the Tribunal could not at present deal with. As it would require further particularisation and evidence to be adduced by both Mr Richard and the Department before such a ground of complaint could be determined, it did not appear to the Tribunal that it would be appropriate to incorporate this matter into the hearing of the present proceedings which are founded upon the complaint lodged on 10 May 2010, as amended.
Accordingly, the Tribunal will deal with whether, as an inmate at the Bathurst CC, Mr Richard was discriminated against by the Department on the ground of race (in particular, his French citizenship):
1)by being denied a classification in December 2009 which would enable him to participate in meaningful work because he was subject to a deportation order;
2)by having his request for an urgent review of his classification ignored for 6 weeks from 11 April 2010;
3)by the officers of the Department refusing or failing to apply the decision of the Tribunal in Contreras-Ortiz v Commissioner, Department of Corrective Services [2009] NSWADT 12 in relation to his classification review in December 2009 and his request for an urgent review thereof;
4)by being excluded from participating in a traineeship program offered at Bathurst Correctional Centre in about May 2010 because he did not meet the eligibility requirement of being an Australian Resident, including holding a current residency visa not subject to cancelation.
The Hearing
The hearing of this matter occurred over 2 days. The first was on 4 February 2011. At the end of this hearing the Tribunal reserved its decision. While preparing its reasons for decision, the Tribunal came across material in the documentary evidence which appeared to it to be relevant to Mr Richard's claim of discrimination in his December 2009 classification but which had not been the subject of any submissions by either party before the Tribunal. As a result, the Tribunal caused a letter dated 9 March 2011 to be sent by the Registrar to both parties requesting them to make further submissions in response to a number of specific questions set out in the letter. Both parties responded to the letter. As part of its response the Department indicated that it wished to seek leave to re-open its case and adduce further evidence by way of affidavits from Mr Mark Regan and Mr Scott Chapman.
As a consequence, the matter was listed for further hearing on 10 June 2011. At that hearing, the Tribunal granted leave to the Department to re-open and the hearing proceeded to completion.
As has been noted, Mr Richard was unrepresented at both hearings and appeared by telephone. The circumstances in which the telephone link was apparently made available to Mr Richard at Bathurst CC appeared to the Tribunal to be less than ideal. Nonetheless, Mr Richard persevered and the hearing proceeded. Mr Richard chose not to take up the Tribunal's offer to investigate whether he could be provided with better facilities during the hearing and we would not criticise his decision in that regard.
Ms Sharp of counsel appeared for the Department.
On 4 February 2011, the President's Report was admitted into evidence as well as Mr Richard's Submission Notes, already referred to. The Department relied upon the affidavit of Dominic Pezzano, the Superintendent, Offender Management and Operations at Corrective Services NSW, together with a bundle of documents referred to in that affidavit arranged behind 21 tabs. It also tendered without objection a further bundle of 4 documents behind tabs 22 to 25. The Department also provided written submissions and a chronology. Mr Richard did not cross examine Mr Pezzano, noting in effect that he did not think what Mr Pezzano said was wrong, but Mr Pezzano was only applying a policy which was wrong. Each of the parties made oral submissions.
On 10 June 2011, the affidavits of Mr Regan and Mr Chapman were read. In addition, Mr Chapman provided information to the Tribunal concerning the recording of Mr Richard's date for eligibility for external release programs and was cross examined by Mr Richard. Mr Regan was not cross examined. Both parties made short oral submissions, in addition to their written submissions in response to the Registrar's letter of 9 March 2011, and the Tribunal once again reserved its decision.
Relevant Statutory Provisions
Mr Richard's complaint concerns allegations of racial discrimination in relation to his categorisation or classification under reg 22 of the Crimes (Administration of Sentences) Regulation and in relation to the refusal to make available a traineeship.
The particular provisions of the ADA which are relevant in this context include s 19 which renders racial discrimination in the provision of goods and services unlawful. Section 19 provides:
It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:
(a) By refusing to provide the person with those goods or services, or
(b) In the terms on which the other person is provided with those goods or services.
In s.4(1) of the ADA 'services' is defined as including:
(a)services relating to banking, insurance and the provision of grants, loans, credit or finance,
(b)services relating to entertainment, recreation or refreshment,
(c)services relating to transport or travel,
(d)services of any profession or trade,
(e)services provided by a council or public authority,
(f)services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.
Section 5 of the ADA establishes that the Act binds the Crown in right of New South Wales and thus applies to departments of the government. This is confirmed by the provisions of s 4B, which provides in part:
(1)A reference in this Act to an employer:
(a)in relation to employment in a Department, is a reference to the relevant Department Head, and
(b)in relation to employment in the Police Service, is a reference to the Commissioner of Police, and
(c)in relation to employment in the Teaching Service, is a reference to the Director-General of the Department of Education and Training.
Section 53 of the ADA renders an employer liable for their employees' discriminatory conduct in certain cases. It provides:
(1)An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.
(2)If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.
(3)Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.
(4)For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.
Section 7 of the ADA sets out what constitutes discrimination on the ground of race and provides in part:
(1)A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person's race ..., the perpetrator:
(a)Treats the aggrieved person less favourably than in the same circumstances, or in circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race ... or
...
(c) Requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race ... comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2)For the purposes of ss.1(a) and 1(b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally inputted to persons of that race.
The definition of 'race' in s.4(1) of the ADA includes:
colour, nationality, descent and ethnic, ethno-religious or national origin.
Racial Discrimination
In order for Mr Richard to establish unlawful racial discrimination under s 19, it must be established that:
(1) The Department was a person who provides (whether or not for payment) services;
(2) The Department refused to provide those services or provided those services on certain terms to Mr Richard;
(3) In doing so, discriminated against Mr Richard on the ground of race within the meaning of s 7 of the ADA.
It is convenient to deal first with the general matter of whether the Department was a person who provides services within the meaning of s 19 of the ADA and then to address in turn each ground of complaint which is to be considered by the Tribunal.
Does the Department Supply Services within s 19?
The Tribunal, differently constituted, in its decision in Contreras-Ortiz v Commissioner, Department of Corrective Services [2009] NSWADT 12 at [86] to [131], has already exhaustively considered the question of whether the Department's functions relating to classification of inmates and the provision of work and local leave permits under ss 6 and 26 of the Crimes (Administration of Sentences) Act are " services " within ss 4 and 19 of the ADA.
We would respectfully adopt the reasoning of the Tribunal in that case which we believe is entirely applicable in the present matter. We shall not repeat the relevant portions of that reasoning here as the Department in this matter did not argue either that the Tribunal's decision in Contreras-Ortiz was wrong or that the Department did not provide services falling within those sections of the ADA.
Accordingly, the Tribunal finds that the Department's functions relating to classification of inmates and the provision of work and local leave permits under ss 6 and 26 of the Crimes (Administration of Sentences) Act are " services " within s 4 of the ADA. Further, the Tribunal concludes that the Department did provide those services within s 19 of the ADA.
The Tribunal now turns to consider each ground of complaint in turn.
First Ground of Complaint - December 2009 Classification Review
The first ground of complaint concerns Mr Richard's classification review that occurred in December 2009 in which he was reclassified as a category C1 inmate and placed at Bathurst CC.
Review of the Evidence
The evidence about this review was contained in the material Mr Richard put before the Anti-Discrimination Board, the affidavits of Mr Regan and Mr Chapman and the print out of the computer record of the classification review. Evidence concerning the normal progression from category B to C1 and beyond was given in the affidavit of Mr Pezzano.
Mr Richard in his letter of 11 April 2010 to the Manager of Classification Bathurst CC stated that he was told that the reason he was classified as a C1 and placed at Bathurst and denied his request for placement to Cessnock, Silverwater or JMI as a C1 or C2 was 'because I was to be deported and I was not eligible for a C2' . Similarly, in his letter of 24 April 2010 to the Anti-Discrimination Board Mr Richard said ' I have been told that I cannot progress because of my nationality/Deportation '. In his written material Mr Richard did not identify who had told him these things in November/December 2009 nor did he indicate whether or not the person who had given him this information was an officer or employee of the Department. It was only in oral submissions on 4 February 2011 that Mr Richard said that it was his "Classo Officer" who had given him this explanation. As has been noted Mr Richard appeared by telephone from Bathurst CC. He is not a native English speaker and yet conveyed the distinct impression that when properly focused he was careful and honest. The Tribunal listened carefully to his information and submissions. We accept that he was attempting to do the best he could in difficult circumstances and that he was not lying.
In response to the material relied upon by Mr Richard, the Department read the affidavit of Mr Regan, who is a Senior Correctional Officer and was the Chair of the classification meeting that took place in respect of Mr Richard's December 2009 classification review. He explicitly denied that he had said to Mr Richard anything to the effect that his classification in December 2009 depended on his nationality, that he was an unlawful non-citizen or the fact that he was to be deported. Mr Regan was not cross examined and Mr Richard indicated that he did not wish to challenge Mr Regan's evidence in this regard. The Tribunal accepts the evidence of Mr Regan.
An affidavit of Mr Chapman was also relied upon by the Department. Mr Chapman is and was in December 2009 the Classification and Case Management Review Co-ordinator at Bathurst CC. He was cross examined by Mr Richard. Mr Chapman denied that he had told Mr Richard anything to the effect that his classification in December 2009 depended on his nationality, that he was an unlawful non-citizen or the fact that he was to be deported. Once again, Mr Richard did not challenge this as he did not assert that Mr Chapman was the person who had told him that his classification was the result of his being subject to deportation.
Nonetheless, Mr Richard maintained that it was his Classo Officer who had given him that information but he could not identify who that officer was. At one point he said that he had had a number of Classo Officers over his years as an inmate and he did not know all their names. The Tribunal notes that in relation to Mr Richard's December 2010 classification review, Mr Richard has asserted that a Mr Bullock, apparently an officer of the Department who chaired Mr Richard's review meeting on that occasion, said: " You will never get a C3 because you are a deportee and for a deportee to get a C3 the file has to go to immigration ". While Mr Bullock may have been a "Classo Officer", this comment which was alleged to have occurred on 3 December 2010 was not relevant to the complaint concerning the December 2009 classification review. A complaint relating to the December 2010 classification review was not the subject of these proceedings, for the reasons given above.
The Tribunal has also considered the written record of the December 2009 classification review. This review was the first of Mr Richard's classification reviews that was carried out using the new computerised system. The computer print out was dated 10 December 2009 (first 3 pages) and 16 December 2009 (for the last page). In the pre-classification information section of the print out, which had been completed by Mr Chapman, Q4, Q5, Q10 and Q11 were answered as follows:
Q4Are there any Alerts for this offender?
AYes, of interest to DIAC, will be deported.
Q5Is there any other information which may affect the legal status of the inmate? If other, comment required.
AOf interest to DIAC.
...
Q10What is the offender's status? Confirm High & Extreme High Security Alerts in Header Block. If other, comment required.
APublic Interest Offender.
Q11What is the date of eligibility for consideration for External Leave Programs?
AN/A
In the light of the revision to the s 6(2) Policy announced in the email of Terry Halloran of 10 December 2008, referred to above, and of the Commissioner's instruction 2/2009 issued in response to the Contreras-Ortiz decision, the Tribunal was concerned to understand why the date of eligibility for consideration for External Leave Programs would be "N/A" or "not applicable" in Mr Richard's case. Taking into account the provision of section 18.1.7 of Chapter 18 of the Operations Procedures Manual headed "Eligibility Criteria for All External Leave Programs" which provided that "Serious Offenders/Public Interest inmates must be within 12 months of the earliest possible release date (non-parole period) and have served half the minimum term. ...", it appeared to the Tribunal that the correct answer to Q11 was 15 January 2011, that is 12 months prior to Mr Richard's earliest possible release date of 15 January 2012, and not "N/A".
Moreover, there did not appear to be any matter raised in the computer print out of the December 2009 classification review that was adverse to Mr Richard's at least being considered for External Leave Programs, except for his being a French citizen, and, an unlawful non-citizen on the expiration of his sentence.
In particular, in sections 2 and 4 of the computerised classification review, which were prepared by Mr Regan, there appeared to be no factors about which questions were asked which were adverse to Mr Richard except Q21, 'Are there any management concerns? If other, comment required' , to which the answer was 'Of interest to DIAC' . Indeed, in response to Q22, it was noted that this offender has no offences in custody and in response to Q28, it was said that the offender's co-operation with staff was rated as good. As to his participation in programs which was the subject of Q29, it was noted 'Undertakes programs nominated in case plan. Has commenced participating in programs' .
On the 3 rd page of the computerised printout, there was the heading 'Offenders Management Agreement' . Under that it was noted that the recommended classification was 'C1 minimum sec' and the recommended placement was Bathurst CC. It also contained under the heading 'Narrative Summary', apparently prepared by Mr Regan, the following:
Richard is excellent worker with good reports. Inmate has completed health survival course. Nil OIC. Inmate to continue with employment and following CC routine. EPRD 15/01/2012. DIAC alert noted.
On page 4 of the review of classification, the recommended classification was supported by the Manager Offender Services and Programs (Employment) and by the Manager Security, who commented 'Good work report. Maintain good attitude and behaviour' . Finally, on that page, the C1 classification and placement at Bathurst CC were approved by the relevant approval authority, Mr Bradley Peebles, with the comment:
12 month scheduled review. EPRD 15/01/2012 (Federal). Unlawful non citizen, deportation order on file. All custodial reports are positive, no OIC's over entire sentence.
It thus appeared to the Tribunal that an issue was raised whether in the light of all the information in the computer print out, the answer to Q 11 indicated that:
(a)Mr Richard was treated as ineligible then and in the future for consideration for external leave programs; and
(b)this was because he was of interest to DIAC and subject to deportation on expiry of his sentence.
Further, on page 3 of the computer print out, these words also appear:
I am aware that in deciding my classification and placement, Corrective Services expect that I endeavour to participate in relevant programs that have been identified in my case plan. I understand that subject to departmental policy, my classification, placement & case plan may be reviewed at any time, but will be reviewed at least once within each 12 month period. I have had my recommended classification and placement explained to me.
Offenders signature.... [Mr Richard has signed here.]
As a result of this, the Tribunal was also concerned that if Mr Richard had had his recommended classification explained to him this might have included an explanation that he was ineligible for consideration for External Leave Programs because he was of subject to deportation on expiry of his sentence.
The computer print out of the December 2009 classification review had not been the subject of submissions on 4 February 2011 nor were any of the issues identified above addressed by the parties on that day. In order to allow the parties to make submissions, the Tribunal caused the Registrar to send the letter dated 9 March 2011 to the parties.
Both parties responded to that letter and, in addition, the Department now relies upon the affidavits of Mr Regan and Mr Chapman in this regard. As has already been noted, their unchallenged evidence was that they did not give such an explanation to Mr Richard in respect of his 2009 classification review. Mr Regan and Mr Chapman were the only persons who were involved in Mr Richard's classification review in December 2009 who might be described as "Classo Officers" and who are named in the computer print out. The other officers of the Department who are mentioned are the Manager Offender Services & Programs Employment, the Manager Security and the Approving Authority, Mr Peebles.
Mr Richard said that he was given no detailed explanation of what was in the classification review computer print out.
In response to questions from the Tribunal, Mr Chapman also gave evidence to the effect that the reason he answered Q11 as "N/A" was because he believed when he prepared this part of the form that Mr Richard was ineligible for consideration for external leave programs because he failed to satisfy the requirements set out in section 18.1.7. The particular requirements appear to be that in order to be eligible for an external leave program an inmate must " have a C3 classification ... " (second dot point) or " be an Australian citizen or be approved by the Commissioner through the SORC or Directors' Review Committee for progression to C3 ..." (third dot point) as well as the requirement that a public interest inmate be within 12 months of the earliest possible release date. At December 2009 Mr Richard satisfied neither of the requirements in the second and third dot points nor was he within 12 months of his earliest possible release date.
Although Mr Chapman's answer of "N/A" might be thought to be somewhat illogical because Q11 was only seeking to identify the date when an inmate might become eligible for consideration for an external release program rather than identifying whether or not he was actually eligible, Mr Chapman's belief and his answer to Q11 do not appear to us to be unreasonable or perverse. Indeed, in evidence, Mr Chapman conceded that it was possible to take the view that the correct answer to Q11 in Mr Richard's case was not "N/A" but "15 January 2011" but he maintained that his answer was not incorrect for the reasons he gave. Mr Chapman appeared to us to be a straightforward witness who was attempting to answer the questions as honestly as he could. We accept his evidence and in particular why he recorded the answer "N/A" to Q11.
As a result, the Tribunal concludes that the answer to Q11 does not provide a proper basis for concluding that Mr Richard:
(a)was being refused the opportunity to participate in external release programs when he became eligible for them in the future;
(b)was being so treated because he was a French citizen who was subject to deportation at the expiration of his sentence.
In addition, the Department called evidence from Mr Domenic Pezzano who is the Superintendent, Offender Management and Operations at Corrective Services NSW. He gave unchallenged evidence that, from his experience working in classification, the progression from B to C1, as recommended by the case management team in December 2009 and as supported by other relevant managers was " the most suitable recommendation ". There was nothing to suggest that Mr Richard would, if he had not been liable to deportation on release, have received a different classification.
Conclusions on the Evidence
In the light of all the material before the Tribunal, we conclude in relation to the December 2009 review that at the time of the review Mr Richard was classified as B Medium. Mr Richard sought to be reclassified as a C1 or C2 with a placement at Cessnock, Silverwater or JMI.
Mr Richard would not have been eligible for an external release program prior to his being classified as C3 or before 15 January 2011, being 12 months before his earliest possible release date. There is little clear evidence of the difference in work available under internal programs and under external release programs. Nor was there any clear evidence as to the different work available to inmates classified as C2 compared to C1. As the Tribunal understands it, Mr Richard believes that meaningful work was not available under internal programs at Bathurst CC as a C1 or a C2 inmate. Apart from this belief, however, there was no evidence before the Tribunal as to what work was or was not available. It is far from clear what classification and/or placement would have been required for Mr Richard to have been able to participate " in meaningful work ".
Mr Chapman prepared the pre-classification section of the computerised review of classification. He did not relevantly communicate with Mr Richard. His answer to Q11 did not indicate that Mr Richard was being refused the opportunity to participate in external release programs when he became eligible for them in the future but merely that he did not meet various requirements for eligibility at that time.
Mr Regan prepared sections 2 and 4 of the computerised review and made the recommendation that Mr Richard be reclassified as C1 Minimum Security at Bathurst CC. Mr Regan did not give Mr Richard any substantial explanation as to why he had been so reclassified and did not say that it was because he was liable to deportation or any other explanation to a similar effect.
Both Mr Chapman's and Mr Regan's evidence was that they acted in accordance with the Corrective Services Commissioner's Instruction No 2/2009 issued in response to the Contreras-Ortiz decision.
From the evidence of Mr Pezzano we are satisfied that Mr Richard would have been classified C1 at his December 2009 classification review whether or not he was liable to deportation on release.
It should noted, however, that the Tribunal regards Mr Richard as reliable and careful. He does not suggest that it was Mr Regan or Mr Chapman who told him that his C1 classification was based upon his being an unlawful non-citizen at the end of his sentence. The Tribunal finds that Mr Richard has attempted to inform the Tribunal of what occurred in a truthful and responsible manner. The difficulty is that even accepting that Mr Richard had been told by an officer of the Department, other than Mr Regan or Mr Chapman, at some time that he was classified as C1 because he was liable to deportation, it appears to the Tribunal that:
(a)this other officer was not one of those who were responsible for his reclassification in December 2009 as a C1 at Bathurst CC; and
(b)the officers, who were responsible for his reclassification, classified him as a C1 for reasons other than that he was liable to deportation at the expiration of his sentence.
Finally, even if Mr Richard had been classified as C2 at Bathurst CC in December 2009, his work opportunities would not have been more meaningful than they were with his C1 classification, according to Mr Richard.
Racial Discrimination under s 19 of the ADA?
The Tribunal has held that the Department did provide services within s 19 of the ADA. The remaining issues in relation to this ground are whether:
(a)the Department refused to provide those services or provided them on terms; and
(b)in doing so discriminated against Mr Richard on the ground of race within s 7 of the ADA.
As to the first issue, Mr Richard's complaint is that in his December 2009 classification review he was denied a classification that would have allowed him to participate in meaningful work (see the President's Report). The classification he sought, according to his letter of 11 April 2010, was a C1 or C2. He did not seek a C3 classification at that stage. The placement he sought at that time was at Cessnock, Silverwater or JMI. He was classified as C1 but placed at Bathurst. The difficulty with knowing what classification would have allowed him " to participate in meaningful work " has been touched on above. From his letter of 11 April 2010 it appears that the placement rather than the classification may have been the determinant of whether he could participate in meaningful work. The difficulty with that latter observation is that Mr Richard's case was never put on the basis that his placement was motivated by racial discrimination.
For the purposes of the present analysis, the Tribunal is prepared to proceed on the basis that a C1 classification did amount to a classification that did not allow Mr Richard to participate in meaningful work. On this basis, the Tribunal finds that the Department did in December 2009 refuse to provide Mr Richard with a C2 or lower classification. To that extent the Department may be said to have refused to provide services to him or to have provided services to him on terms that he could not obtain a C2 or lower classification on that occasion. Thus, the Tribunal finds that this requirement of s 19 could be satisfied.
The second issue is whether, in so doing, the Department discriminated against Mr Richard on the ground of race within s 7 of the ADA. As the Tribunal understands the President's Report and Mr Richard's complaint, the only type of discrimination relied upon is direct racial discrimination under s 7(1)(a) of the ADA.
Direct discrimination under s 7(1)(a) requires consideration of three questions:
(a)Race - What particular aspect of "race" does Mr Richard rely upon?
(b)Differential treatment - Was Mr Richard treated less favourably than in the same or not materially different circumstances the Department would treat a person of a different race?
(c)Causation - Was any differential treatment on the ground of race?
The definition of " race " in s.4(1) of the ADA includes " nationality ". It has been held by the Full Court of the Federal Court in Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202 at 211 that, in the context of the Racial Discrimination Act 1975 (Cth), nationality should be construed as equivalent to citizenship but was different from "national origin". This approach of treating the terms "citizenship" and "nationality" as synonymous has been adopted by the Tribunal in relation to the ADA in a number of decisions including: Sydney University Post Graduate Representative Association v Minister for Transport Services [2006] NSWADT 83 at [62] and [63] and Contreras-Ortiz [2008] NSWADT 308 at [66]. Accordingly, if there was differential treatment of Mr Richard on the ground of his French citizenship this will amount to direct discrimination on the grounds of race under s 7(1)(a) of the ADA.
As to differential treatment, the Tribunal has found that Mr Richard would have been classified C1 at his December 2009 classification review whether or not he was liable to deportation on release. There was no evidence to suggest that an Australian citizen whose circumstances were the same as, or not materially different from, Mr Richard's (except for his not being liable to be deported on release) would have been classified as anything other than C1 Bathurst. Mr Pezzano's evidence suggested that the progression to C1 from B as occurred in Mr Richard's case in December 2009 is what would have occurred for any inmate in similar circumstances. Accepting this, the Tribunal concludes that Mr Richard was not treated less favourably than in the same or not materially different circumstances the Department would have treated a person of a different citizenship or nationality, such as an inmate who was an Australian citizen.
Thus, the Tribunal concludes that Mr Richard has not shown that he received differential treatment. As a result, there was no direct discrimination within s 7(1)(a) of the ADA.
Further, even if there had been differential treatment, which we find not to be the case, such treatment does not appear to the Tribunal to have been based upon Mr Richard's nationality, and thus race. The officers responsible for preparing the review form and for the C1 recommendation both acted in accordance with the Commissioner's Instruction No 2/2009. From the material available to us, Mr Richard's classification in December 2009 does not appear to have turned on whether or not he was liable to deportation on release or on the fact that he was not an Australian citizen or entitled to permanent residence.
Accordingly, we conclude that there was no direct racial discrimination against Mr Richard in respect of the December 2009 classification review. As the Tribunal understood it, Mr Richard did not advance a claim that there had been indirect racial discrimination. This is not surprising as such an indirect discrimination case had been rejected by a differently constituted Tribunal in the Contreras-Ortiz case (see [2008] NSWADT 308 at [146] to [175]).
The first ground of complaint has not been made out.
Second Ground of Complaint - Request for Review Ignored
The second ground of complaint was that Mr Richard's request for an urgent review of his December 2009 classification was ignored for 6 weeks from 11 April 2010.
Mr Richard's account of what occurred is contained in numbered paragraph 1 of his letter of 30 May 2010 to the Anti-Discrimination Board:
1.In response to my letter of 11/4/10 addressed to the Manager of Classification (Bathurst) detailing my complaint and requesting an urgent review within 7 days I was informed verbally yesterday (29/5/10) of the following:-
My letter has sat in the office for the past 6 weeks and the officer has only just become aware of my complaint. [I consider this unacceptable as my complaint was hand delivered]. He then asked me if I wished to lodge an application for a review of classification (this would entail a further delay of 6 weeks to hear my case). I informed him that I did not intend any further delays and that my letter of 11/4/10 was self explanatory. ...
The terms of the request for review are found in Mr Richard's letter of 11 April 2010, quoted above. Essentially, the request seeks a review of the December 2009 classification in the light of the Tribunal's decision in the Contreras-Ortiz matter. The Department did not contest that Mr Richard's request for an urgent review was not dealt with as he has alleged.
The difficulty for the Tribunal in relation to this ground is that the Tribunal is only dealing with allegations of racial discrimination in this proceeding. The Department has submitted that "[t] here is no evidence to support a conclusion that the 'failure' to reconsider the classification was on the ground of racial discrimination ".
In so far as there was a refusal to provide services that might fall within s 19(a) of the ADA by the relevant Departmental officer's failure to reconsider Mr Richard's 2009 classification decision for 6 weeks or at all before the next scheduled review, a central issue is whether that refusal constituted discrimination against him on the ground of race.
This requires the Tribunal to consider, among other things, whether:
(a)Mr Richard was treated less favourably than, in the same or not materially different circumstances, the Department would have treated a person of a different race (in this case citizenship or nationality); and
(b)any differential treatment was on the ground of race?
There was no evidence to suggest that the relevant Departmental officer would have reconsidered a December 2009 classification of an inmate not of French nationality, for example an Australian citizen, who made the request in the same or not materially different circumstances to Mr Richard. The Department drew attention to the fact that Mr Richard's request for reconsideration of his classification failed to comply with the procedures and time frames set out for requesting reconsideration of classifications in Chapter 14 of the Classifications Manual of the Department. This, it was suggested in submissions, was the reason why the request was not addressed. From this, the inference would also be open that any inmate no matter what his or her race or nationality, who made a request as Mr Richard had done, would have been treated in the same way.
Whilst it might be considered unsatisfactory or unfortunate that Mr Richard's request for a review was left unconsidered for 6 weeks, there is no evidence to show that a similar request by another inmate, who was an Australian citizen or not liable to deportation at the end of his or her sentence, would have received more immediate attention. In all the circumstances, the Tribunal is not satisfied that there was any differential treatment of Mr Richard in regard to this second ground of complaint.
Accordingly, the second ground of complaint is not made out.
Third Ground of Complaint - Contreras-Ortiz Decision Not Applied
The third ground of complaint alleges in effect that Mr Richard was discriminated against on the ground of race by the officers of the Department refusing or failing to apply the decision of the Tribunal in Contreras-Ortiz v Commissioner, Department of Corrective Services [2009] NSWADT 12 in relation to his classification review in December 2009 and his request for an urgent review thereof.
At least part of the Tribunal's reasoning in the Contreras-Ortiz decision was based upon the fact that application of the Section 6(2) Policy to Mr Contreras-Ortiz resulted in his being directly discriminated against on the ground of race (in that case his nationality or citizenship). As has already been noted, the Section 6(2) Policy was replaced by operation of the Commissioner's Instruction 2/2009, one purpose of which was:
to ensure that all inmates being considered for progression below C1... are considered on their merits ... .
The former Section 6(2) Policy was not operative at the time of Mr Richard's classification in December 2009. Moreover, the evidence was that this later Instruction 2/2009 was applied by the relevant Departmental officers in Mr Richard's case. We have already found, in relation to the first ground of complaint, that there was no direct racial discrimination against Mr Richard as a result of his being refused a C2 classification or a C1 with a different placement at the December 2009 review.
On these bases, the Tribunal is not persuaded that the Tribunal's decision in Contreras-Ortiz was ignored by the Department or the relevant Departmental officers in Mr Richard's case. Nor does the Tribunal accept that Mr Richard's position was no different from that of Mr Contreras-Ortiz.
Thus, the Tribunal is not satisfied that Mr Richard was discriminated against on the ground of race because the Tribunal's decision in Contreras-Ortiz was not given effect to either generally or in his specific case. The third ground of complaint has not been made out.
Fourth Ground of Complaint - Exclusion from Traineeship Program
The fourth and final ground of complaint related to Mr Richard's allegedly being excluded from participating in a traineeship program offered at Bathurst CC in about May 2010 because he did not meet the eligibility requirement of being an Australian resident, including holding a current residency visa not subject to cancelation.
The evidence concerning this ground was limited to Mr Richard's letter of 30 May 2010 to the Anti-Discrimination Board which simply stated:
Further to my complaint I would like to add the following submissions and material.
...
2.Enclosed is a flyer from the Education Section (Bathurst) advertising traineeships for inmates. As can be seen from the highlighted section the policy is discriminatory and contrary to [the decision in Contreras-Ortiz v Commission of Corrective Services [2009] NSWADT 120.] ...
The flyer stated in part:
GET QUALIFIED
While you get paid to work!!
TRAINEESHIPS
Now available at Bathurst
To be eligible you MUST ....
*Already sentenced, not on appeal or have further charges
*Classified to Bathurst ...
*Have 12 months or more left to serve
*Be an Australian resident (hold a current residency visa not subject to cancellation)
...
*Have a track record for finishing courses and stuff.
....
The Department in its submissions noted that Mr Richard did not identify when he found the flyer, did not assert that he applied for a traineeship and did not give evidence that he would have liked to apply for a traineeship but for the restriction.
Without conceding the question of whether the imposition or enforcement of such a residence requirement in the circumstances could amount to direct or indirect racial discrimination under s 19 of the ADA, the Department's primary focus in its defence of this ground was upon s 54 of the ADA. Subsection (1) of that section provides in part:
(1)Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of:
(a)any other Act, whether passed before or after this Act,
(b)any regulation, ordinance, by-law, rule or other instrument made under any such other Act,
...
The Department submitted that imposing the requirement for trainees to be Australian residents was something done by the Department of Education and Training and not the Department. Further, even if it could be said that the requirement was something done by the Department, it was something that was necessary in order to comply with a requirement of an instrument made under another Act and thus not unlawful by operation of s 54(1).
It appears that Traineeships of the type referred to in the flyer were administered by the Adult Education and Vocational Training Institute ("AEVTI") within Corrective Services NSW and were governed by the Apprenticeship and Traineeship Act 2001 (NSW) ("the AT Act"). AEVTI is a registered training organisation, with Provider Number 7057. "Registered training organisation" is defined in Dictionary to the AT Act as having the same meaning as in the Vocational Education and Training Act 2005 (NSW). As provided in s 79, the AT Act binds the Crown in right of New South Wales.
Section 4 of the AT Act provides:
(1)The Director-General may from time to time issue guidelines ("vocational training guidelines") in relation to the exercise of functions under this Act by persons involved in the administration of this Act.
(2)It is the duty of any person involved in the administration of this Act to comply with the requirements of the vocational training guidelines.
(3)Copies of each vocational training guideline must be made available for public inspection on the Internet and, during ordinary office hours, at the offices of the Department.
The Department of Education and Training was the department of the New South Wales Government responsible for administering the Apprenticeship and Traineeship Act at all relevant times. On 8 January 2004, the Director General of the Department of Education and Training issued a vocational training guideline entitled " Citizenship and residency status requirements to undertake apprenticeship or traineeship " which was in the following terms:
Citizenship and residency
Citizenship and residency status requirements concerning persons who may be approved to undertake an apprenticeship or traineeship
Issued: 8 January 2004
Pursuant to section 4 of the Apprenticeship and Traineeship Act 2001 (the Act), the following guideline is issued in relation to eligibility requirements concerning the citizenship and residency status of persons who may be approved to undertake an apprenticeship or traineeship by either the Commissioner for Vocational Training (or delegated Officer) or the Vocational Training Tribunal, when exercising a function under section 8 of the Act.
From 1 February 2004 a person (the applicant), who applies for approval to establish an apprenticeship or traineeship for a person whom the applicant has employed as an apprentice or trainee, must ensure that the apprentice or trainee meets one of the following citizenship or residency status eligibility requirements.
They must be:
1.an Australian citizen; or
2.a foreign national with permanent residency; or
3.a New Zealand passport holder who has been resident in Australia for at least six months.
Note: A New Zealand passport-holder might have returned to New Zealand for one or more short periods during their six months residence in Australia (e.g. for holidays etc.). These absences from Australia would not necessarily disqualify the person unless they were of such duration and frequency as to raise a reasonable doubt about the person's intentions to live and work in Australia.
Exemptions to the above citizenship or residency status eligibility requirements approvals criteria will only be considered where a temporary visa holder is exempt from payment of tuition fees in TAFE NSW under the Temporary Visa Holders Policy - TAFE NSW.
The Schedule of Visa Sub-classes included in section 6 of the Temporary Visa Holders Mandatory Study Conditions - TAFE NSW indicates the temporary visa holder visa sub-classes exempt from payment of tuition fees in TAFE NSW courses.
An application to establish an apprenticeship or traineeship which does not comply with the specified citizenship and residency eligibility requirements or is not granted an exemption should be dismissed by either the Commissioner for Vocational Training (or delegated officer) or the Vocational Training Tribunal, when exercising a function under section 8 of the Act.
(Dr) Alan Laughlin R/ DIRECTOR-GENERAL OF EDUCATION AND TRAINING
January 2004
AEVTI adopted this citizenship and residence requirement in Section 4 Part 4.02 Subpart B headed " Recruiting and Signing Up Correctional Centre Inmate Applicants for a Traineeship " of the AEVTI Policies and Procedures Manual. Paragraph 1)(b.)v. of that Subpart provided:
1) The Inmate traineeship candidate will:
...
(b.) Essentially
...
vbe an Australian citizen, permanent resident, or citizen of New Zealand resident in Australia for six months prior to incarceration
...
This requirement, it is alleged, was referred to in the flyer to which Mr Richard drew attention by the words : " To be eligible you MUST ... *Be an Australian resident (hold a current residency visa not subject to cancellation) ". The wording of the flyer does not exactly reflect the wording of the requirement in the AEVTI Policies and Procedures Manual or the Director General of Education and Training's 8 January 2004 Guideline. Nonetheless, the Tribunal is satisfied that these words in the flyer were inserted in order to comply with the Manual and the Guideline, as there does not appear to be any other likely explanation for their inclusion.
The Tribunal accepts the Department's submission that, as a result of s 4(2) of the AT Act, it was the duty of any person involved in the administration of AT Act, including the officers of the AEVTI and the person who prepared the flyer, to comply with the requirements of the 8 January 2004 Guideline issued under s 4(1) of that Act. These requirements included limiting participation to trainees who satisfied the citizenship and residence condition. Imposing and applying the citizenship and residence condition referred to in the flyer can legitimately be described as being necessary in order for the persons publishing the flyer and operating the traineeship program to comply with a requirement of the 8 January 2004 Guideline. That Guideline was an " other instrument " made under " any other Act " within the meaning of s 54(1)(b) of the ADA.
Thus, even if imposing and giving effect to the residence condition set out in the flyer did amount to discrimination on the ground of race in relation to the provision of services within s 19 of the ADA, it was not unlawful as a result of the operation of s 54(1) which has been quoted above.
For these reasons, the fourth ground of complaint has not been made out.
Conclusion and Further Observations
In summary, the Tribunal finds that none of the four grounds of complaint raised by Mr Richard and dealt with by the Tribunal in this proceeding has been made out.
In these circumstances, the Tribunal proposes to dismiss the complaint in whole under s 108(1)(a) of the ADA. Nonetheless and in spite of making the order dismissing the complaint, the Tribunal believes it should make some further observations. It appears to the Tribunal that Mr Richard, and possibly other inmates who are liable to deportation on the expiration of their sentences, genuinely believe that they are being treated differently on account of their nationality when it comes to classification reviews and the ability to participate in meaningful work while they are inmates. As we have already stated, in Mr Richard's case, we do not find that there has been established any conduct that amounts to unlawful discrimination under the ADA. This should not be taken to mean, however, that it would not be appropriate for the Department to consider means by which it can demonstrate to inmates such as Mr Richard and others who are liable to deportation on the expiration of their sentences that there has been no discrimination against them. Whilst the Tribunal understands it is for the Department to determine what should be done in relation to the classification of inmates and the consideration of their eligibility for participation in external leave programs, the Tribunal would encourage the Department to ensure that its procedures and outcomes in these regards are not only non-discriminatory but are also seen to be non-discriminatory, to the extent that this is possible.
Orders
Accordingly, the Tribunal orders:
1.The complaint be amended under s 103 of the Anti-Discrimination Act so as to include:
(a)in respect of the three grounds of complaint which were referred to in the Report of the President of the Anti-Discrimination Board, relevant conduct occurring after 10 May 2010; and
(b)the ground of complaint concerning the traineeship flyer.
2.The complaint be dismissed in whole.
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: 29 June 2011