Whiteoak v State of New South Wales
[2014] NSWCATAD 45
•14 April 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Whiteoak v State of New South Wales [2014] NSWCATAD 45 Hearing dates: 3, 4 and 5 April 201310 May 2013 (Submissions)6 August 2013 (Submissions) Decision date: 14 April 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: J Wakefield, Senior Member
N Hiffernan, General Member
M Nasir, General MemberDecision: The Tribunal orders that:
1. The Applicant's complaint that he was discriminated against by the Respondent in breach of s 19 of the Anti-Discrimination Act 1977 in the decision of the Respondent to classify him as C1 on 15 December 2008 is substantiated.
2. The Respondent is to pay the Applicant damages pursuant to s 108(2)(a) of the Anti-Discrimination Act 1977 assessed in the sum of $500, such damages to be paid into the Victims Support Fund pursuant to s 111A(2) of the Anti-Discrimination Act 1977 to be expended as money forming part of that Fund.
3. The Applicant's complaints are otherwise dismissed.
Catchwords: ADMINISTRATIVE LAW - Civil and Administrative Tribunal (NSW) - Administrative and Equal Opportunity Division - discrimination - on grounds of race - direct discrimination - goods and services - causation - damages for loss of opportunity - ancillary orders - costs Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW)
Administrative Decisions Tribunal Amendment Act 2008 (NSW)
Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Administration of Sentences) Regulation 2001 (NSW)
Crimes (Administration of Sentences) Regulation 2008 (NSW)Cases Cited: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13
Bonella v Wollongong City Council [2001] NSWADT 194
Brooks Maher v Cheung [2001] NSWADT 18
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Commissioner of Police, NSW Police Service v Estate of Russell [2001] NSWSC 745
Commissioner of Police v Mooney (No 3) [2004] NSWADTAP 22
Commissioner of Police v Mohamed [2009] NSWCA 432
Commonwealth v Evans [2004] FCA 654
Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308
Coopers Brewery Ltd v Panfida Foods Ltd [1992) 26 NSWLR 738
Cooper v Western Area Local Health Network [2012] NSWADT 39
Director-General, Department of Community Services v MM and another [2003] NSWSC 1241
Director General of Education v Breen [1982] 2 IR 93
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Elliott v State of NSW (NSW Police Force) [2011] NSWADT 159
Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301
IW v City of Perth (1997) 191 CLR 1
Kondos v Citadin Pty Ltd [LSD] [2003] NSWADTAP 7
La Trobe Capital & Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd (2011) 190 FCR 299; FCAFC 4
Maile v Rafiq [2005] NSWCA 410
Monash University v Kapoor [1999] VSC 463
Mooney v Commissioner of Police (No 3) [2003] NSWADT 18
Nicholls & Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
Purvis v State of New South Wales (2003) 217 CLR 92
R v Entry Clearance Officer, Bombay, ex-parte Amin [1983] 2 AC 818
Rainsford v State of Victoria [2005] FCAFC 163
Rainsford v State of Victoria [2007] FCA 1059
Rainsford v State of Victoria [2008] FCAFC 31
Richard v Director General, Department of Justice and the Attorney General (Corrective Services NSW) [2011] NSWADT 158
Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770
Saraswati v The Queen (1991) 172 CLR 1
Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 ALL ER 26
Sutherland v Tallong Park Association Incorporated (No. 2) [2006] NSWADT 287
Sydney University Postgraduate Representative Association (SUPRA) v Minister for Transport Services [2006] NSWADT 83
Tallong Park Association Inc v Sutherland; Sutherland v Tallong Park Association Inc (EOD) [2007] NSWADTAP 19
University of Ballarat v Bridges [1995] 2 VR 418
UTSA Pty Ltd (In Liq) v Ultra Tune Australia Pty Ltd (1996) 21 ACSR 457
Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871
Waters v Public Transport Corporation (1991) 173 CLR 349
Whiteoak v State of New South Wales (Department of Justice and Attorney General - Corrective Services NSW) [2012] NSWADT 135Category: Principal judgment Parties: B Whiteoak (Applicant)
State of New South Wales (Department of Justice and Attorney General - Corrective Services NSW) (Respondent)Representation: A Howell (Applicant)
N L Sharp (Respondent)
McGowan Lawyers (Applicant)
G Singer, Department of Justice and Attorney General (Corrective Services NSW) (Respondent)
File Number(s): 101067
reasons for decision
Introduction
Mr Whiteoak is serving a life sentence for murder. He complains that he was discriminated against by the Respondent on the grounds of race in breach of s 19 of the Anti-Discrimination Act 1977 (NSW) (AD Act) by the application of the Respondent's then "Inmates of Interest to Immigration Policy" in the decisions to classify him for security purposes as Category C1 on 28 December 2006, 25 June 2007, 15 December 2008, 4 December 2009 and 15 April 2010. He seeks declarations of unlawful discrimination and damages in respect of each of the complaints together with orders to effect reclassification and to grant external leave.
Subject to the question of whether, by making the decisions complained of, it was providing Mr Whiteoak with a service, the Respondent admits that the decision on 15 December 2008 was discriminatory on the grounds of race but denies the remaining complaints.
For the reasons which follow, the Tribunal has determined that by its classification decisions complained of, the Respondent was providing a service to Mr Whiteoak within the meaning of ss 4 and 19 of the AD Act. The Tribunal has further determined that except for the decision of 15 December 2008, the discriminatory nature of which has been admitted by the Respondent, the Respondent has not, by the remaining decisions complained of, discriminated against Mr Whiteoak on the grounds of race.
Relevant background
The Tribunal set out the relevant background in its decision in Whiteoak v State of New South Wales (Department of Justice and Attorney General - Corrective Services NSW) [2012] NSWADT 135 on 6 July 2012 (Whiteoak No 1) upon the Respondent's application for summary dismissal of the proceedings pursuant to s 102 of the AD Act.
The relevant background is in the following terms (reciting Whiteoak No 1 at [3] - [7]):
(3) The Applicant commenced a life sentence for murder on 16 September 1983. He has previous convictions for assault and indecent assault. On 16 December 1994, his life sentence was re-determined with the Applicant receiving a 15 year non-parole period. On 19 August 2008, his permanent residency visa was cancelled and he is to be deported at the end of his sentence.
(4) The Applicant is classified as a 'serious offender' as defined by s 3 of the Crimes (Administration of Sentences) Act 1999 (NSW) ('C(AS) Act'). All matters pertaining to his security classification and placement are managed by the Serious Offenders Review Council ('SORC'), which is constituted by s 195 of the C(AS) Act, and which makes recommendations to the Commissioner for Corrective Services ('Commissioner') relating to prisoners under its management.
(5) On 13 August 2002, the Commissioner's delegate approved a reduction in the Applicant's security classification from C2 to C3. This classification was maintained in decisions dated 24 September 2003, 11 December 2003 and 27 February 2004.
(6) On 28 December 2006, the Acting Commissioner's regressed the Applicant's classification from C3 to C1 following the introduction of a new policy of 'Inmates of Interest to Immigration'. The C1 classification was confirmed in decisions by the Commissioner's delegate on 2 December 2008 [sic], 4 December 2009 and 5 April 2010 [sic].
(7) The Applicant completed a sex offender treatment program called 'Custody based intensive treatment program' ('CUBIT') on 29 January 2001. He then proceeded to undertake the CUBIT custodial maintenance program. He was later discharged from that program for misbehaviour on 5 February 2004. On 1 July 2009, CUBIT representatives treated the Applicant's attempt to defer undertaking CUBIT as a deemed refusal. ..."
To this background should be added that in the period 7 January 2003 to 5 January 2005 the Applicant had ten escorted day leaves pursuant to s 26 of the C(AS) Act. The Applicant's day leaves were suspended in February 2005 after an inmate absconded while on escort. He has never been issued with a work permit under ss 6(1) or (2) of the C(AS) Act.
The Respondent determined by decisions made on 13 December 2010 and 12 December 2011 that Mr Whiteoak's security classification should remain at Category C1. After successfully completing CUBIT in March 2012, Mr Whiteoak's security classification was progressed to Category C2 on 29 August 2012.
History of the matter before the Tribunal
On 23 December 2008, Mr Whiteoak lodged a complaint with the Anti-Discrimination Board (ADB) alleging discrimination on the grounds of race.
On 17 June 2010, after investigation, the President of the ADB referred the complaint to the Administrative Decisions Tribunal (ADT) (as it then was) pursuant to s 93C of the AD Act. The President filed with the ADT the President's Summary of Complaint (President's Summary) and a bundle of documents (the President's Bundle). The complaint was characterised as discrimination on the grounds of race in the provision of goods and services in breach of ss 7, 19 and 53 of the AD Act. The claim was apparently for direct discrimination. The period of complaint was, at the time of referral, from 28 December 2006 to 24 April 2009.
After non-compliance by the Applicant with several directions requiring him to file and serve Points of Claim and evidence, the proceedings were listed before the ADT on 27 July 2011 for hearing of the Respondent's application for summary dismissal pursuant to s 102 of the AD Act.
A procedural history of the matter to the date of that hearing is to be found in Whiteoak No 1 at [9] to [22]. The Tribunal ordered that the complaint be amended pursuant to s 103 of the AD Act to include as grounds of complaint the classification decisions made by the Respondent on 4 December 2009 and 15 April 2010. The Respondent's application was dismissed and directions were made for the Applicant to file and serve Points of Claim and evidence within 28 days in default of which the complaint was to be dismissed in whole pursuant to s 102 of the AD Act.
Points of Claim and evidence were filed on behalf of the Applicant on 3 August 2012. The Points of Claim made claims for direct and indirect discrimination.
At a directions hearing on 29 August 2012, the Applicant was directed to amend its Points of Claim in two respects:
(1) (1) To make clear that the refusal of Corrective Services to provide its various services set out in paragraphs 18 and 19 of the Points of Claim arose as a consequence of the classification decision;
(2) (2) To provide particulars of paragraph 20 of the Points of Claim."
The Applicant filed Amended Points of Claim on 12 September 2012.
The Respondent filed its evidence on 18 October 2012.
The proceedings were listed on 7 December 2012 for a preliminary hearing on the Respondent's application to strike out of certain parts of the Amended Points of Claim. On that day, the following orders were made:
(1) (The Respondent's application to strike out those paragraphs identified in the Amended Points of Claim is allowed.
(2) The Respondent to file and service Points of Defence by 12 December 2012.
(3) Applicant to file and serve any Reply and any evidence in reply by 13 February 2012.
(4) Applicant to notify the Tribunal and the Respondent of the outcome of his appeal to the Legal Aid Review Committee against the decision to terminate his grant of legal aid on the day on which he is notified of that decision by the Legal Aid Review Committee.
(5) Liberty to either party to apply to have the matter relisted on 3 days' notice."
The Respondent filed its Points of Defence on 11 December 2012.
Further Amended Points of Claim were handed to the Tribunal on 4 April 2013. These removed the claim for indirect discrimination.
The hearing listed for 3 days commenced on 3 April 2013. On 5 April 2013, during closing submissions after the luncheon adjournment, the Applicant made an application to amend the Further Amended Points of Claim so as to include the following additions to paragraph 20:
(a) With respect to the classification decisions of 28 December 2006 and 25 June 2007, the Respondent applied a blanket assumption that non-citizens who had been notified of an intention to cancel their visa, posed an increased risk of security.
(ab) With respect to 28 December 2006 decision to revoke the Applicant's external supervised leave permission applied a blanket rule that lawful non-citizens must have their external leave permissions revoked in the event the Respondent is notified of an intention to cancel an inmate's visa.
(ac) With the respect to the classification decision of 15 December 2008 the Respondent applied a blanket policy that prevented lawful non-citizens from being classified below category C1/CAT 3 and the inmate revocation."
The Respondent opposed the proposed amendment other than by way of the addition of para. 20(ac).
At the conclusion of the hearing on 5 April 2013 the following orders were made:
(1) Applicant to file and serve submissions on amendment application by 4.00 p.m. 10 April 2013.
(2) Respondent to file and serve submissions on amendment application by 4.00 p.m. 12 April 2013.
(3) Applicant to file and serve submissions on substantive matter by 4.00 p.m. 19 April 2013.
(4) Respondent to file and serve submissions on substantive matter by 4.00 p.m. 3 May 2013."
On 24 April 2013, the Tribunal made the following orders concerning the Applicant's application to amend the Further Amended Points of Claim:
(1) The Applicant be granted leave to amend the Further Amended Points of Claim so as to include the following addition to paragraph 20:
(aa) With respect to the classification decision of 15 December 2008 the Respondent applied a blanket policy that prevented lawful non-citizens from being classified below category C1/CAT 3 and the immediate revocation of any external leave permissions.
(2) The application for amendment is otherwise dismissed;
(3) Costs reserved."
The matter was listed for oral submissions on 10 May 2013 and 11 June 2013. This later date was vacated and submissions concluded on 6 August 2013.
On 1 January 2014, the ADT was abolished and its jurisdiction was acquired by the New South Wales Civil and Administrative Tribunal. This matter is a "part heard proceeding" within the meaning of cl 6 of Schedule 1 to the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). This Tribunal may exercise all the functions which the ADT had immediately before its abolition. The provisions of the Administrative Decisions Tribunal Act 1997 (NSW) (ADT Act), which would have applied to these proceedings had the CAT Act not been enacted continue to apply: cl 7(3) Schedule 1 to CAT Act.
Evidence before the Tribunal
There was before the Tribunal the President's Summary and the President's Bundle. Mr Whiteoak's evidence comprised his affidavit sworn 1 August 2012 and the affidavit of Frances McGowan, his solicitor, sworn 3 August 2012 and a bundle of annexures. Mr Whiteoak gave evidence by telephone and was cross examined.
The Respondent's evidence comprised the affidavit of Terence Anthony Halloran, the Executive Director of Classification, Case Management and External Leave Programs of the Respondent sworn 17 October 2012 and the affidavit of David Luke Grant, the Assistant Commissioner - Offender Services and Programs of the Respondent sworn 18 November 2012. Mr Halloran and Mr Grant gave evidence and were cross examined.
There was also before the Tribunal the affidavit of Glen Singer sworn 29 March 2011 in support of the application for summary dismissal and the documents exhibited thereto. The Respondent tendered a two volume bundle of documents. The Tribunal has had regard to and considered the evidence including the documents to which it has been referred by the parties.
Scope of the complaint
The Respondent apprehends that in the way in which the Applicant ultimately ran his case he was seeking to suggest that merely by taking into account the fact that the uncertainty of Mr Whiteoak's immigration status made him at that time an unquantified flight risk, the Respondent was discriminating against the Applicant on the grounds of race. Mr Whiteoak did not concede this.
In his letter to the ADB received on 22 December 2008, Mr Whiteoak complained:
"Firstly When Mr Woodham brought out his policy in 2005 with regards to inmates who are of interest to the Immigration Department, I was at that time of interest to the Department of Immigration although they had not made any form of decision with regards to deportation, ... The new policy took away my Day Leaves and reduced my classification down to a C1; ... I am hoping that you will be able to help me in regaining my C3 classification and Days Leaves. ... The Policy Mr Ron Woodham implemented was in effect a Kneejerk reaction to one inmate who absconded while on a day leave treating all inmates as if they were all potential escapees."
In his letter of 24 April 2009 to the ADB Mr Whiteoak confirmed that he wished to proceed with the complaint. He repeated that his complaint concerned the regression of his classification from C3 to C1 on the basis that he was of interest to the Department of Immigration saying:
"[i]t is discrimination because the policy decisions are treating me differently to what an Australian citizen is treated."
The Respondent submits that the Applicant's complaint was that he was discriminated against because of the "Inmates of Interest to Immigration Policy" and that this is the way in which the Applicant has pleaded his case.
The Respondent says that it would be prejudicial to permit an amendment during submissions and that the Respondent has had no time to prepare a new case in evidence. It says that if a new case had been notified within reasonable time a different approach may have been taken to the focus of the evidence and different evidence led about the appropriate hypothetical comparator. It is said that it would be a clear denial of procedural fairness to permit a fundamental change to the case of the Applicant at such a late stage.
Causation is pleaded at para. 20 of the Further Amended Points of Claim as follows:
"20 The respondent engaged in the conduct ... on the ground of, or on grounds that included, the applicant is not an Australian citizen ... including as follows:
(a) With respect to the classification decisions of 28 December 2006, 7 June 2007 [sic] and 15 December 2008, the respondent required the applicant to demonstrate 'exceptional circumstances' to progress beyond Category C1 and treated the applicant as ineligible [for] work or program activity outside a correctional centre."
"Exceptional circumstances" appears by reference to "unlawful non-citizens" in the Respondent's then Inmates of Interest to Immigration Policy.
It is also pleaded with respect to the classification decision of 15 December 2008:
"(aa) With respect to the classification decision of 15 December 2008 the respondent applied a blanket policy that prevented Lawful Noncitizens from being classified below Category C1/Cat 3 and the immediate revocation of any external leave permissions."
With respect to the last two decisions the Applicant pleads:
"(b) With respect to the classification decisions of 4 December 2009 and 15 April 2010, the respondent:
(i) Treated the applicant was [sic] unable to participate in external leave programs as a result of his status as a national of the United Kingdom subject to deportation upon release in making the classification decisions; and/or
(ii) Did not introduce any policy applicable to the classifications decision with respect to the applicant which had the effect of directly [sic] that the discriminatory approach applied between 2006 and 2009 no longer be followed; and/or
(ii) Considered the classification of the applicant on the basis that his existing classification was Category C1 in circumstances in which his classification had been regressed from Category C3 to Category C1 for discriminatory reasons in 2006."
The matter has proceeded by way of pleadings. Mr Whiteoak has filed Further Amended Points of Claim to identify his case and the Respondent has put on Points of Defence, called evidence and made submissions based upon the case so identified. The proceedings have been the subject of application for summary dismissal, three interlocutory applications concerning the form and amendment of the Points of Claim, a three day hearing and two half-days of submissions. Additionally, the affidavit evidence and the tendered documentary material run to well over 1,000 pages. Both parties are represented by experienced counsel and instructing solicitors. The Tribunal would expect that significant thought and preparation has gone into the running of the case based upon the pleadings.
The Applicant has had adequate opportunity to settle the form of his pleading. The Respondent is entitled to meet the case as pleaded. In the Tribunal's view, it would be unfair upon the Respondent to allow the Applicant to depart from his case on the pleadings by reason of the way in which any submissions are put: see UTSA Pty Ltd (In Liq) v Ultra Tune Australia Pty Ltd (1996) 21 ACSR 457 at 459. The Tribunal will approach the matter on the basis of the parties' cases as pleaded.
Relevant legislation
Section 7 of the AD Act provides:
"7 What constitutes discrimination on the ground of race
(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if the perpetrator:
a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or
(b) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or
(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race."
Section 19 of the AD Act provides:
"19 Provision of goods and services
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 AD Act "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 AD Act establishes that the Act binds the Crown in right of New South Wales and in all other capacities and thus applies to government departments. Therefore the AD Act applies to the Respondent.
Section 53 of the AD Act renders an employer liable for the employee's discriminatory conduct in certain cases. It provides:
"53 Liability of principals and employers
(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."
Accordingly, in order to make out his claims for discrimination, Mr Whiteoak will need to establish that the acts complained of occurred in the course of the Respondent providing him with a service. He will then have to establish by reference to a comparator that he was treated less favourably in the same circumstances or in circumstances which were not materially different. If so, he will have to establish that at least one of the grounds for his treatment was by reason of his race.
The Inmates of Interest to Immigration Policies
There was in evidence a policy adopted by the Respondent called the Inmates of Interest to Immigration Policy the subject of Commissioner's Memorandum No: 2006/28 dated 25 March 2006 (Old Inmates of Interest to Immigration Policy). Several versions of this document were referred to although they were not materially different.
The policy provided relevantly:
"The following departmental policy in relation to inmates who will, or may be removed (deported) from Australia at the cessation of their custodial sentence, became effective from 1 November 2005 and is incorporated into the November 2005 Interim Classification Placement and Procedures Manual.
The details of this policy regarding specific groups of inmates are below:
Progression to C3/CAT1:
1. Unlawful Non-Citizens
Unless exceptional circumstances suggest otherwise, no inmate should be considered for progression to C3/Category 1, or for the issuing of a section 6(2)/26 order enabling work or program activity outside a correctional centre. Such inmates should not progress beyond C1/Category 3 security level. Unlawful non-citizens include those holding a visitor's visa, a student visa, a study visa, a work visa and illegal immigrants. Additional visa types may place the inmate in this category. [Emphasis added.]
...
3. Lawful non-citizens
Inmates who are lawful non-citizens and have a permanent visa (usually resident or special category) but who have never been naturalized, may be considered for a section 6(2)/26 order enabling work or program activity outside a correctional centre. Such inmates may progress to C3/CAT1 security level but only after approval by the Commissioner for a serious offender/pubic interest inmate or the Directors' Committee for all other inmates. Recent advice from the DIMIA [sic] should be included with documentation to the SORC in the case of serious offenders and public interest inmates, or to the Directors' Committee in the case of all other inmates.
Where the DIMIA [sic] notifies the Department and/or the inmate that he/she will be removed from Australia at the completion of his/her custodial sentence, the inmate is to be regressed to a security classification no lower than C1/Category 3, and any section 6(2)/26 order/leave permit should be revoked immediately. The lodging of an appeal to DIMIA [sic] by the inmate is not sufficient to stop this regression from occurring.
Where the DIMIA [sic] notifies the inmate that he/she is to provide reason(s) for not being removed at the completion of his/her custodial sentence, any section 6(2) /26 order/leave permit is to be withdrawn and the inmate moved to a location of a C1/CAT 3 security standard. The inmate is to remain in such a location pending a final decision by the DIMIA [sic] in relation to the inmate's status. A regression in classification is not automatic.
EXCEPTIONAL CIRCUMSTANCES
Exceptional circumstances will be considered by the Commissioner for serious offenders and public interest inmates only when the inmate's application outlining exceptional circumstances is supported in writing by the General Manager of the centre in which the inmate is accommodated, and after the Commissioner considers a recommendation from the SORC/PRLC.
Exceptional circumstances for non serious offenders and non public interest inmates will be considered by the Directors' Committee. This will only occur when the application from the inmate outlining the exceptional circumstances is supported in writing by the General Manager of the centre in which the inmate is accommodated.
General
Careful consideration is to be given to the type of visa an inmate may have, and confirmation from DIMIA [sic] is required in written form in all circumstances. The possession of a bridging visa enabling work in the community is not sufficient when considering an inmate's immigration status.
When known, the alert screen should indicate whether the inmate is a lawful non-citizen or an unlawful non-citizen. All officers of the department are responsible for ensuring that such an alert is raised when such information becomes known."
Another version of the Old Inmates of Interest to Immigration Policy, the subject of Terry Halloran's Memorandum dated 11 November 2005, provided additionally with respect to the treatment of lawful non-citizens:
"Additional caution must be applied with respect to any inmate within this category being considered for progression, having regard to the additional incentives to escape for inmates facing uncertainty about removal (deportation)."
This is contained in the Respondent's External Leave Programs Policy (ELP Policy).
On 23 March 2009, the Commissioner issued Commissioner's Instruction No: 2/2009 headed "Inmates of Interest to the Department of Immigration and Citizenship" (New Inmates of Interest to Immigration Policy).
The Policy provided relevantly as follows:
"INSTRUCTION
This Instruction replaces No 13/2006 and No 2006/38.
In response to the need to streamline the exchange of information between this Department and Commonwealth Department of Immigration and Citizenship (DIAC) and to ensure that all inmates being considered for progression below C1/Category 3 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 [sic] more; OR
c) serving a second or subsequent term of imprisonment so that their total time served on conviction in prison is 2 years or more;
...OR
...
f) Serious Offenders ...
Classification protocols
An inmate who is a non-citizen but who is not of interest to DIAC, subject to the ordinary classification process.
If DIAC advises that the inmate is not to be deported/removed, the inmate is subject to the ordinary classification process.
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) Unlawful 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/Category 3 classification and from access to 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 Category 2D or for the issue of a section 6(2)/26 order. The PRLC will make a recommendation to the Commissioner for his determination. Inmates determined to be Serious Offenders will have their classification and the issuing of 6(2)/26 orders determined by the Commissioner after consideration of a recommendation by the Serious Offenders Review Council. Each case will be considered on its merits.
(ii) Lawful Non-Citizen
"Lawful non citizen" refers to an inmate who has a valid visa but is not an Australian citizen.
The Classification and Case Management Review Co-ordinator must refer all lawful non citizens who are of interest to DIAC and who are not managed by SORC or any of its sub committees to the Director, Inmate Classification and Case Management for consideration of progress to C3 or Category 1. The Director will convene a 'Directors Review Committee' to make a final determination on the inmate's suitability for progression. Each case will be considered on its merits ..."
By Commissioner's Instruction 02/2011 issued on 7 April 2011 the Instruction No 2/2009 was amended. The Instruction No 02/2011 provided:
"INSTRUCTION
This Instruction amends No 2/2009.
Instruction No 2/2009 contained definitions of 'Unlawful Non-Citizens' and
'Lawful Non-Citizens'. I have recently been advised that these definitions were not accurate.
The correct definitions are:
'Unlawful Non-Citizens' refers to an inmate who did not have a valid permanent residency visa at the time of his or her incarceration; and
'Lawful Non-Citizens' refers to an inmate who had a valid permanent residency visa (e.g. a Special Category Visa if a citizen of New Zealand) at the time of his or her incarceration ..."
Is Citizenship an aspect of race?
The definition of "race" in s 4(1) of the AD Act includes "nationality". The Tribunal has adopted the approach of treating the terms "citizenship" and "nationality" as synonymous: see Sydney University Post Graduate Representative Association (SUPRA) v Minister for Transport Services [2006] NSWADT 83 at [62] and [63]; Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308 at [66] and Richard v Director General, Department of Justice and the Attorney General (Corrective services NSW) [2011] NSWADT 158 at [118]. The Tribunal is satisfied that the Applicant's citizenship of the United Kingdom is an aspect of race for the purposes of ss 7 and 19 of the AD Act.
Did the Respondent provide a service?
As a preliminary issue on the question of whether by classifying Mr Whiteoak it was providing him with a service, the Respondent apprehends that concessions it made in Whiteoak No 1 about discriminatory conduct might be held against it on final hearing. Although during the substantive hearing of the proceedings the matter was referred to in argument, the question of whether the Respondent has made and should be bound by any admissions (other than in respect of the decision on 15 December 2008 which is admitted if service is established) was not raised in the pleadings nor was it referred to in the Applicant's amended submissions other than as to costs.
In the Respondent's written submissions in Whiteoak No 1 on the application for summary dismissal it was said:
"The respondent accepts that the two security classifications of the applicant dated 28 December 2006 and 15 December 2008 respectively were racially discriminatory for the reasons found by the Tribunal in [Contreras-Ortiz] where it was found that the process of classification involved the provision of a 'service'."
Notwithstanding this concession the Tribunal in Whiteoak No 1 questioned whether Mr Whiteoak was in fact an "unlawful non-citizen" and subject to the "exceptional circumstances" requirement under the Old Inmates of Interest to Immigration Policy considered in Contreras-Ortiz: see Whiteoak No 1 at [84].
The Tribunal in Whiteoak No 1 ultimately determined that "for the purposes of this application, the Tribunal accepts the Respondent's concession that there is a factual basis for the allegation in respect of the classifications in 2006 and 2008": Whiteoak No 1 at [86].
The Tribunal does not consider that an admission has been made which is binding on the Respondent in the substantive proceedings. There was evidence that the concession which had been made was based upon an error. This can be traced through a number of the Respondent's documents in which certain officers of the Respondent considered that the decision of 28 December 2006 to regress Mr Whiteoak from C3 to C1 was in line with the Departmental policy at that time. In fact, the Respondent says that the "exceptional circumstances" requirement in the Old Inmates of Interest to Immigration Policy did not apply to Mr Whiteoak who was a "lawful non-citizen" at the relevant time. Mr Grant gave evidence that the policy was not applicable to Mr Whiteoak and that he did not apply it.
Even if the Respondent's concession was to be treated as a formal admission, in the Tribunal's view, it would have been appropriate to grant leave to the Respondent to withdraw the admission on the basis of the evidence that it was made as the result of a mistake or misapprehension as to the true position: see Coopers Brewery Ltd v Panfida Foods Ltd [1992) 26 NSWLR 738 or was demonstrably erroneous: see Maile v Rafiq [2005] NSWCA 410 at [73]. Accordingly, the Tribunal does not take the Respondent's concession into account in its consideration of the matter on final hearing.
After a comprehensive review of the authorities the Tribunal in Contreras-Ortiz at [115] set out its conclusions in relation to the construction of the term "service" in s 4 of the AD Act as follows:
(a) In discharging statutory duties and functions and in exercising statutory powers in the public interest, a body may also be engaged in the provision of services to particular individuals; that is, as Gummow J observed in IW at 44, there is no dichotomy between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions;
(b) It is erroneous to posit a distinction between the provision of services pursuant to a statutory discretion and the situation where no discretionary element exists: cf Raphael FM in Rainsford;
(c) As ameliorating legislation, the AD Act should be construed beneficially: Director-General, Department of Community Services v MM [2003] NSWSC 1241 and authorities cited at [24] to [27]. The term 'service' is capable of broad application, and should be read in s 4 as having its ordinary and broad meaning: eg IW per Dawson and Gaudron JJ at 23;
(d) Amongst the ordinary meanings of the term 'service' are the action of serving, helping or benefitting; conduct tending to the welfare or advantage of another: Oxford English Dictionary (2nd Ed) XV, 36; an act of helpful activity: Macquarie Dictionary (3rd Ed); and
(e) The touchstone for a service is whether the act is helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs: Sundberg J in Rainsford."
This reasoning was adopted by the Tribunal in Richard at [79] - [81] and Whiteoak No 1 at [89].
In the Tribunal's view it is appropriate to apply the considerations identified in Contreras-Ortiz at [115] to the services alleged in the Applicant's pleading which have either been denied or not admitted. These will be considered in turn.
The Applicant pleads at paragraph 18(a) of the Further Amended Points of Claim that the Respondent provided services by:
(a) Providing inmates with external leave outside a correctional centre for the purpose of re-establishing themselves in the community, gaining meaningful employment, participate [sic] in external education or training or make retribution or make [sic] retribution to the community."
The Applicant relies upon the conclusion in Contreras-Ortiz that both "providing development programs, including development programs involving work or employment outside a correctional centre" and "considering whether those inmates should be permitted to participate" in such development programs (referred to as Points of Claim paras 11(a) and (b) in the Contreras-Ortiz decision) were "services" (noting that 11(a) was admitted in those proceedings): see Contreras-Ortiz at [123] - [125].
The Tribunal in Contreras-Ortiz found at [116] to [118]:
"116 Applying [the principles which it identified at [115]] the actions and powers exercised by the Respondents are capable of being characterized as services within the meaning of ss 4 and 19 of the AD Act. Relevantly, cl 60(1) of the Crimes (Administration of Sentences) Regulation, provides that the Commissioner may provide an inmate with services and programs that:
(a) 'offer the inmate an opportunity to develop skills, behaviours and attitudes that lessen the likelihood of the inmate re-offending, or
(b) contribute to the inmate living in society after release from custody, or
(c) promote the health, safety and wellbeing of the inmate.
117 Clause 60(2) provides that, without limiting subcl (1), such services and programs may include:
(a) welfare services,
(b) services for inmates who have disabilities,
(c) alcohol and other drug counselling services,
(d) psychological counselling services,
(e) literacy and numeracy programs,
(f) educational and vocational training programs, including the provision of libraries,
(g) pre-release and post-release programs to enable inmates to adapt to normal lawful community life,
(h) sports and recreational activities.
118 Clause 60(3) provides that in the exercise of a function under cl 60, the Commissioner must give special attention to the needs of inmates who have low literacy or numeracy. The Commissioner must also give special attention to the needs of inmates who have a disability: subcl (3A). Services and programs may be provided by correctional officers or by other persons approved by the Commissioner: subcl (4)."
The Tribunal in Contreras-Ortiz at [119] had little difficulty in concluding that the performance of the functions by the Respondent under cl 60 is potentially helpful or beneficial to inmates and hence capable of being characterised generally as services within the meaning of ss 4 and 19 of the AD Act.
Adopting the principles identified in Contreras-Ortiz at [115] this Tribunal has no difficulty in concluding that the provision to inmates of external leave for the purposes pleaded is helpful or beneficial to inmates and accordingly that it is capable of being characterised as a "service" within the meaning of ss 4 and 19 of the AD Act.
Paragraph 18(b) of the pleading identifies a service of "considering" whether to provide the external leave identified in para 18(a). The Tribunal in Contreras-Ortiz at [125] referred to the decision of the High Court of Australia in IW v City of Perth (1997) 191 CLR 1 in which it was held (per Dawson and Gaudron JJ at 23 and per Gummow J at 44) that the process by which the Respondent in that case "considered" applications for planning approval constituted the provision of services for the purposes of the Equal Opportunity Act 1984 (WA). See also Director-General, Department of Community Services v MM and another [2003] NSWSC 1241 at [44].
As the Tribunal held in Contreras-Ortiz at [125] it follows that the "consideration" of the provision of external leave for the purposes identified in paragraph 18(b) of the pleading is also capable of being characterised as a "service" within the meaning of ss 4 and 19 of the AD Act.
Paragraph 18(c) of the Further Amended Points of Claim pleads the service of "varying the classification of inmates for the purposes of the provision of, external leave opportunities".
Paragraph 18(d) of the Further Amended Points of Claim pleads the service of "considering whether the classification of inmates should be varied for the purposes of the provision of development programs, external leave opportunities or the engagement in work or employment opportunities; ..."
As to these claims the Applicant also relies upon the Tribunal's decision in Contreras-Ortiz in which it expressly found that "varying the classification of inmates for the purposes of the provision of appropriate development programs" and/or "considering whether the classification of inmates should be varied for the purposes of the provision of appropriate development programs" (identified respectively as the claims in 11(e) and (f) of the Points of Claim in those proceedings) were properly characterised as helpful or beneficial to inmates and therefore constituted services for the purposes of s 19 of the AD Act: see Contreras-Ortiz at [129]. In further support, the Applicant relies upon the decision in Richard at [79] - [80] and the finding in Whiteoak No 1 at [89].
The conclusion of the Tribunal in Contreras-Ortiz on the classification decisions was at [129]:
"... whilst we have no doubt that the classification process is absolutely fundamental to ensuring the security of the correctional system, we are also satisfied that classification can also be properly characterised as helpful or beneficial to inmates."
This conclusion was drawn on the basis of the Tribunal's view that the Respondent provided services in respect of the matters alleged in subparagraphs 11(a) to (d) in the Points of Claim in that case (which concerned the provision of development programs, finding work or employment for inmates and considering the provision of both of those services). In so concluding however, the Tribunal considered that it was not necessary for it to determine whether the matters alleged in subparagraphs 11(e) and (f) of the Points of Claim (which referred to the varying of the classification of inmates for the purposes of the provision of appropriate development programs and considering whether to vary such classification) amounted to a service: Contreras-Ortiz at [128].
Clause 22(1) of the Crimes (Administration of Sentences) Regulation 2009 (NSW) (C(AS) Reg) provides:
"Each male inmate is to be classified in one of the following categories for the purposes of security and the provision of appropriate development programs ..."
The Respondent in Contreras-Ortiz had contended that notwithstanding the opening words of cl 22 the fundamental purpose of the classification process is to ensure the security of the correctional facility where the inmate is located: Contreras-Ortiz at [127].
The Tribunal went on to say at [128]:
"However, it seems to us the better view is that the text of clause 22 of the Regulation does not support the approach contended for by the respondents. Rather it seems tolerably clear that clause 22, read literally as well as beneficially, contemplates a non-exclusive duality of purposes of classification."
The Tribunal also found at [128] that its reading of cl 22 was consistent with Chapter 14 of the Inmate Classification Placement and Procedures Manual (November 2005, Interim) (Classification Manual) which provides relevantly:
"The classification and placement of an inmate are part of a comprehensive and detailed case plan designed to address his/her individual and identified needs in response to offence(s) committed for which the inmate has been sentenced.
In carrying out the provisions of the legislation there is to be a presumption that an inmate will always obtain a significant rehabilitative benefit from programs, including external leave programs when motivated to participate."
The Respondent says that the reasoning in Contreras-Ortiz was tentative and can be criticised in two respects; firstly, that by relying on cl 22 of the C(AS) Reg the Tribunal tended to treat the identification of a service as a question of statutory construction rather than as a question of fact. Secondly, the Tribunal elided security classification with the development of a case plan.
As the Tribunal noted in Whiteoak No 1 at [89] the Respondent had not sought to argue on the application before it that the decision in Contreras-Ortiz was wrong or that the Respondent did not provide services within ss 4 and 19 of the AD Act. Nor had it done so in Richard.
The identification of the relevant service is a question of fact: see Waters v Public Transport Corporation (1991) 173 CLR 349 at 361 per Mason CJ and Gaudron J; at 404 per McHugh J; Rainsford v State of Victoria [2007] FCA 1059 at [72]; Contreras-Ortiz at [122]. Whether determination of a security classification is a service is in issue on the pleadings in this matter and this Tribunal is not bound by any finding of fact in Contreras-Ortiz. In the Tribunal's view, whether or not the finding on this aspect of the matter in Contreras-Ortiz can be said to be tentative, in circumstances in which the Tribunal in this case had the benefit of evidence on the operation of the classification regime from two very senior officers of the Respondent, Mr Grant and Mr Halloran, it is appropriate to consider the issue of services in light of the evidence now adduced.
The contest between the parties on this issue will be determined by whether, as the Applicant puts it, classification and inmate services and programs are intrinsically linked each forming part of the overall case planning process which underpins the scheme of management of inmates under the C(AS) Act and C(AS) Reg or, as the Respondent puts it, there is a structural separation in the undertaking of security classification on the one hand and participation in programs on the other.
Mr Halloran is the Executive Director of Classification, Case Management and External Leave Programs of the Respondent. He has held this position since 2009. Prior to that he was the Director-Classification and Case Management Branch from 25 August 2003 to 19 May 2009 in which position he did not have formal responsibility for external leave programs. His responsibilities as Executive Director of Classification include overseeing the classification, placement and case management of inmates and the external leave programs of the Respondent.
Mr Halloran gave evidence of the regime for security classification. Reference was made to the operation of the earlier (now amended) Crimes (Administration of Sentences) Regulation 2001 (NSW) (C(AS) Reg 2001). Part 2.2 of C(AS) Reg 2001 on its face deals with inmate case management and security classification. C(AS) Reg 2001 applied until it was repealed and replaced on 1 September 2008 by the current C(AS) Reg.
Clause 12(1) C(AS) Reg provides:
"12 Placement of inmates
(1) In making a determination as to the correctional centre in which an inmate is to be placed, the Commissioner is to have regard to the following matters:
a) the inmate's classification,
b) if available, the sentencing court's comments in relation to the inmate,
c) any assessment that has been made as to the inmate's physical or mental health,
d) the provision of health care services to the inmate,
e) whether or not the inmate is likely to be removed from Australia,
f) the inmate's criminal history and history of behaviour during any previous period of imprisonment,
g) the inmate's history of behaviour while subject to supervision otherwise than as an inmate pursuant to any conditions of bail or parole or any other conditions imposed by a court order (including an extended supervision order under the Crimes (High Risk Offenders) Act 2006 ),
h) assessment that has been made (whether by officers of Corrective Services NSW or of any other government department or public authority) as to:
(i) the level of risk that the inmate poses to good order and security, and
(ii) the likelihood that the inmate may try to escape from custody, and
(iii)any factors contributing to the inmate's criminal behaviour, and
(iv)the likelihood of the inmate committing further offences, whether of the same or of a different kind,
(i) the need to protect the community,
(j) the availability of resources and appropriate programs and services at the correctional centre at which the inmate is to be held."
Clause 13(1) of C(AS) Reg provides:
"13 Case plans to be prepared for all convicted inmates
(1) The Commissioner is to ensure that a case plan (the 'initial case plan') is prepared and adopted for each convicted inmate as soon as possible after the inmate becomes a convicted inmate."
Clause 13(3) provides:
"A subsequent case plan is to be prepared and adopted for a convicted inmate at least once every 12 months and at such other times as the Commissioner determines."
It was Mr Halloran's evidence that as the case plan includes the inmate's security classification these matters are taken into account in assigning an inmate's classification.
Clause 14(5) of C(AS) Reg 2001 provided:
"14 Departmental officers to prepare recommendations
(5) In the case of an inmate who is serving a sentence of more than 2 years, the functions of the nominated officer under this clause are to be exercised by a committee of 2 or more Departmental officers nominated by the Commissioner."
This clause had application to Mr Whiteoak. Mr Halloran gave evidence that in practice the recommendations for a case plan (including as to classification) are prepared by the Case Management Team (CMT) at the inmate's Correctional Centre. The recommendations are then forwarded to one or more review officers nominated by the Commissioner pursuant to cl 15 of the C(AS) Reg. In practice, the review officers are the Classification Managers (or Deputy Classification Managers).
Where the inmate is "a serious offender", as is the case with Mr Whiteoak, the review officers must make recommendations for the case plan to the Serious Offenders Review Council (SORC). SORC then reviews the recommended case plan pursuant to cl 16(1) of C(AS) Reg and makes a submission to the Commissioner about the case plan pursuant to cl 16(2) of the C(AS) Reg.
The C(AS) Act provides at s 197 as follows:
"197 Functions of Review Council
(1) The Review Council has such functions as are conferred on it by or under this or any other Act or law.
(2) In particular, the Review Council has the following functions:
(a) to provide advice and make recommendations to the Commissioner with respect to the following:
(i) the security classification of serious offenders,
(ii) the placement of serious offenders,
(iii) developmental programs provided for serious offenders,
(b) to provide reports and advice to the Parole Authority concerning the release on parole of serious offenders,
(c) to prepare and submit reports to the Supreme Court with respect to applications under Schedule 1 to the Crimes (Sentencing Procedure) Act 1999,
(d) to review segregated and protective custody directions under Division 2 of Part 2,
(d1) to make recommendations to the Minister with respect to the transfer of juvenile inmates from juvenile correctional centres to adult correctional centres under Division 3A of Part 2,
(e) to provide reports and advice to the Minister and to such other persons or bodies as may be prescribed by the regulations,
(f) to perform such other functions as may be prescribed by the regulations in relation to the management of serious offenders and other offenders."
Section 198 provides as follows:
"198 Matters to be considered in relation to certain advisory functions
(1) When exercising its functions under section 197 (2) (a) in relation to a serious offender, the Review Council must consider the public interest and any other relevant matters.
(2) In the case of its function under section 197 (2) (a) (i), the Review Council must also consider, in accordance with the regulations:
a) any submissions made by the State, and
b) any submissions made by victims of the serious offender,
before advising or recommending that a serious offender should be given a less stringent security classification if it appears to the Review Council that the new classification would allow the offender to become eligible for unescorted leave of absence under a local leave permit or interstate leave permit.
(2A) When exercising its functions under section 197 (2) (b) in relation to a serious offender, the Review Council must consider the following matters:
a) the public interest,
(b) the offender's classification history,
(c) the offender's conduct while in custody, both in relation to sentences currently being served and in relation to earlier sentences,
(d) the offender's willingness to participate in rehabilitation programs, and the success or otherwise of his or her participation in such programs,
(e) any relevant reports (including any medical, psychiatric or psychological reports) that are available to the Review Council in relation to the offender,
(f) any other matter that the Review Council considers to be relevant.
(3) Without limiting the generality of the meaning of public interest in subsections (1) and (2A), the Review Council is to take into account the following matters when considering the public interest:
a) the protection of the public, which is to be paramount,
(b) the nature and circumstances of the offence,
(c)the reasons and recommendations of the sentencing court,
(d) the criminal history and family background of the offender,
(e0f the time the offender has served in custody and the time the offender has yet to serve in custody,
(f) the offender's conduct while in custody, including the offender's conduct during previous imprisonment, if applicable,
(g) the attitude of the offender,
(h) the position of and consequences to any victim of the offender, including the victim's family,
(i) the need to maintain public confidence in the administration of criminal justice,
(j) the need to reassure the community that serious offenders are in secure custody as long as it is appropriate,
(k) the rehabilitation of the offender and the re-entry of the offender into the community as a law-abiding citizen,
(l) the availability to the offender of family, departmental and other support,
(m) such other factors as are prescribed by the regulations."
Clause 17(1) provides that the Commissioner must then consider SORC's recommendation about the case plan. Clause 17(2) provides that the Commissioner is not bound to follow the recommendations or the advice of SORC.
Clause 22(1) of the C(AS) Reg provides:
"22 Classification of male inmates
(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."
Clause 22(2) provides that the Commissioner may at any time vary or revoke a classification made under cl 22(1).
It was Mr Halloran's evidence that the legal obligations with respect to a classification are supplemented by the Corrective Service NSW Policy outlined in the Classification Manual which was in evidence. The Classification Manual has applied at all times from 2006 to the date of hearing. The Classification Manual was formerly comprised in Chapter 2 of Corrective Services NSW Operations Procedures Manual (OPM) which was also in evidence.
Mr Halloran gave evidence that SORC has not regarded itself as bound by Corrective Services NSW Policy including the Classification Manual. However, in practice SORC acts in accordance with the policy unless it identifies a good reason for not doing so in the interests of the safety of the community, staff, the inmate and other inmates.
Chapter 11 of the Classification Manual provides for the CMT to develop and make recommendations as to case plans for inmates.
Chapter 14 of the Classification Manual sets out procedures to be followed in making recommendations for the classification and placement of inmates. Chapter 14 describes "classification" at page 130 as follows:
"Classification is the process whereby inmates are designated a security rating that determines the custodial location in which they are managed. It is one of the most important processes for ensuring the security of the correctional system. Staff who participate in the process must maintain a constant awareness of the significance of this activity for ensuring the safety of the community, staff and other inmates."
Chapter 18 of the Classification Manual governs the procedures of the classification and placement of "serious offenders" being inmates who are managed by SORC. Page 184 of Chapter 18 provides:
"The main functions of [SORC] are to make recommendations to the Commissioner on the management of serious offenders and high security offenders ...
The [SORC] also provides advice ... to the Parole Board concerning the release on parole of serious offenders."
The classification of serious offenders is also supplemented by the following guidelines which were in evidence:
(a) "Classification Progress for Serious Offenders" effective from 25 November 2002; and
(b) "Summary of Commissioner's Guidelines for Serious Offenders" which has been effective since 26 August 2008.
It was Mr Halloran's evidence based on his experience in his position that the security classification does not involve the provision of a "service" to an inmate. He said that inmates are given a security classification to indicate the level of supervision which they require in order to maintain the good order of the correctional centre, the safety of the inmate and other inmates, the safety of staff and the safety of the community at large.
It was Mr Halloran's evidence that in his experience and to his understanding security classification is not tailored in order to make an inmate eligible for a program. Rather, the security classification is first imposed with a view to achieving the maintenance of the good order of the correctional centre and the other matters to which he had referred. Subject to that security classification an inmate may or may not be eligible for particular programs.
Evidence was also given on behalf of the Respondent by Mr Luke Grant, the Assistant Commissioner - Offender Services and Programs of the Respondent. He has held that position since 2006. Between 2000 and 2006 he was Assistant Commissioner - Offender Management which he says was essentially the same position. In the 1990's Mr Grant was the Director of Classification. He was at that time an Official Member of SORC.
Mr Grant gave evidence, based on his experience in his position, that the purpose of inmate classification is ultimately to protect the community. He said that the fundamental purpose of inmate classification is security. He said that this purpose was adopted in line with the recommendations of the Report of the Nagle Royal Commission into New South Wales Prisons in 1978 which he said made it clear that security came before program and other considerations. In the body of his report, Justice Nagle observed:
"The Commission has taken the view that the primary but not the only concern of any classification should be security. In the light of the security classification those responsible should give effect to all other relevant circumstances with a view to seeing that the program and placement suits the prisoner's needs."
Mr Grant's evidence was that the Royal Commission recommended a change to the regulations to reflect this. Recommendation 55 stated that:
"The existing Regulations regarding classification should be replaced by regulations embodying the security classifications recommended in this report."
Mr Grant gave evidence that Recommendation 59 introduced the "A", "B" and "C" classification categories which were incorporated in the C(AS) Reg and have remained there ever since.
Mr Grant gave evidence that security classification is based on an objective assessment of the risk of harm that an inmate poses to the community should they escape, the risk of harm the inmate poses to other inmates and staff and the risk of escape. The security classification of an inmate determines the environment in which they are managed including the physical perimeter, security and the level of staff supervision. It is an essential management tool, he said, for maintaining the good order and discipline of the prison system, for maintaining the public confidence in the administration of justice and ultimately protecting the safety of the community. Mr Grant said that in his experience eligibility for a particular program is never a consideration when determining the appropriate security classification. Satisfactory completion of a program may be a legitimate consideration prior to considering the reduction of an inmate's classification.
The Applicant submits that each of the decisions the subject of complaint arose from the Applicant's bi-annual/annual case plan review required by cl 13 of C(AS) Reg given by the Commissioner or his delegate assistant, Commissioner Luke Grant. They were not decisions taken independently of the scheduled case planning process.
In the Applicant's submission, security classification is but one element of the case plan review process required of all inmates. The elements of the case plan outlined in cl 13(1) of C(AS) Reg are reviewed concurrently in the same sitting of SORC (in terms of recommendations to the Commissioner) and the same sitting of the Commissioner (or his delegate).
The Applicant points to the objects of the C(AS) Act which include at s 2A(1):
(a) "To ensure that those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment,
...
(d) To provide for the rehabilitation of offenders with a view to their reintegration into the general community."
He points in particular to cl 22 of the C(AS) Reg which stated at all relevant times that the classification of inmates is "for the purposes of security and the provision of appropriate development programs".
The Applicant also refers to the operation of Division 5, Part 2.3 entitled "Inmate Services and Programs" which expressly provided at cl 60 of the C(AS) Reg 2001 applicable at the time of the 2006 and 2007 decisions (equivalent to cl 57 of the current C(AS) Reg):
(1) "The Commissioner may provide an inmate with services and programs that:
c) offer the inmate an opportunity to develop skills, behaviours and attitudes that lessen the likelihood of the inmate re-offending, or
(d) contribute to the inmate living in society after release from custody, or
(e) promote the health, safety and well-being of the inmate.
(2) Without limiting subclause (1), such service and programs may include:
g) Pre-release and post-release programs to enable inmates to adapt to normal lawful community life."
The Applicant submits that on its face the description of pre-release programs to enable inmates to adapt to normal community life as "inmate services and programs" in cl 57 immediately confirms the claimed services in paragraphs 18(c) and (d) of the Further Amended Points of Claim.
The Respondent submits that the evidence of both Mr Grant and Mr Halloran established that the determination of security classification is one component of an overall case plan and it is not the same as the case plan. Security classification comes first. It is only once a prisoner has a security classification that it is open to consider the other aspects of the case plan, being placement and programs. The evidence from Mr Halloran and Mr Grant was that security classification was not "reverse engineered" in order to create opportunities for prisoners to participate in programs.
The Respondent says that it is necessary to be more precise in the identification of the service. The service is said to be the determination of a security classification. It is not the broader service of development of a case plan.
The interpretation of "service" involves the process of statutory construction. As Brennan CJ and McHugh J held in IW at 12:
"Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural. But subject to that proviso, if the term 'service' read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal, exercising jurisdiction under the Act should hold that the activity is a 'service' for the purpose of the Act."
The service must be identified with precision and not be too broadly defined: see Waters at 404 - 405 per McHugh J; IW at 17 per Brennan CJ and McHugh J and Contreras-Ortiz at [122]. The service is a service to the person alleging discrimination: see Waters at 404 per McHugh J; IW at 17 per Brennan CJ and McHugh J.
The New South Wales Court of Appeal in Commissioner of Police (NSW) v Mohamed [2009] NSWCA 432 at [32] reaffirmed that the word "services" was used in the AD Act "in its ordinary, undefined sense". It did so by reference at [40] to the decision in IW stating:
"In IW, Dawson and Gaudron JJ also accepted that the term 'services' was a word of 'complete generality' and 'should not be given a narrow construction unless that is clearly required by definition or by context."
At [23] Their Honours noted that the definition which was in similar terms to that in the AD Act, "is to be taken as signifying everything which falls within [the ordinary notion of 'services']".
The Full Court of the Federal Court in considering the equivalent provision in the Disability Discrimination Act 1992 (Cth) (DDA) in Rainsford v. State of Victoria [2005] FCAFC 163 at [54] stated:
"The question of whether an activity is a service or the purposes of s 24 of [the DDA] is essentially a matter of characterisation. In discharging statutory duties and functions and in exercising statutory powers in the public interest, a body may also be engaged in the provision of services to particular individuals: see IW v City of Perth at 44 per Gummow J; also 12 - 13 per Brennan CJ and McHugh J; 24 per Dawson and Gaudron JJ; 29 per Toohey J; and 72 per Kirby J."
Sundberg J in Rainsford (2007) at [72] to whom the Full Court proceedings were returned observed:
"72 The judgments in IW are clearly dependent on the particular fact situation of that case, but some general propositions can be identified. First, not all government functions are services, although some undoubtedly are. Second, as the difference between Dawson, Gaudron and Gummow JJ on the one hand and Toohey and Kirby JJ on the other hand demonstrates, the way in which the service is identified is critical. It is a question of fact determined by the situation of the particular case."
In IW at 44, Gummow J affirmed the validity and co-existence of the duality of purposes of a statutory function in the context of a council through its planning approval function providing services to both the community and individual applicants. See also the discussion of services involving multiple purposes in Commissioner of Police, NSW Police Service v Estate of Russell [2001] NSWSC 745 at [44] per Sully J; MM at [44] per Barr J. The Full Court of the Federal Court in Rainsford (2005) at [54] observed that the body can exercise statutory powers in the public interest and provide services to particular individuals.
Classification falls within the regime for an inmate's case management set out in C(AS) Reg and the Classification Manual. On the basis of the evidence which follows the Tribunal concludes that the case management of an inmate is helpful or beneficial.
Chapter 1 of the Classification Manual in the introduction provides that:
"It is important to bear in mind that the legislation reserves to the Commissioner those decision-making powers which relate to the case plan, classification and placement of inmates in the following categories: serious offender ...
In making certain decisions on such inmates the Commissioner first seeks advice from the Serious Offenders Review Council or subcommittees of the Council
Central to the case management process is the formulation of a case plan for each inmate who is received into custody. There is an important link between case plan classification and placement as described in departmental policy ..." [Emphasis added.]
Chapter 3 provides for case management. It is noted that the Respondent's case management policy overview is:
"The NSW Department of Corrective Services is bound by legislation to utilise case management as the organising principle and key strategy for offender management. Its purpose is to advance the department's mission: to reduce re-offending by the secure, safe and humane management of offenders." [Emphasis added.]
Under "Definition of Case Management" in Chapter 3 it is provided:
"Case management is a service delivery approach widely adopted across many areas of social services, including health, employment, housing and corrections. [Emphasis added.]
The principle that underpins a case management is individualised service delivery, based on comprehensive assessment that is used to develop a case or service plan. The plan is developed in collaboration with the individual and realised through individual and group intervention strategies." [Emphasis added.]
Under the heading "Assessment" it is provided:
"In the effort to achieve the Department's mission to reduce re-offending, the assessment of offenders is undertaken in order to:
- discharge duty of care ...
- plan for integration into law-abiding community living." [Emphasis added.]
Certain outcomes are expected after completion of an assessment period. The manual provides:
"This contributes to the evolving offender profile and the ongoing holistic assessment in the case management of the offender." [Emphasis added.]
Under the subheading "Plan for Integration into Law-Abiding Community Living" it is provided:
"Planning for an offender's integration into law abiding community living commences when an offender first comes under the responsibility of the Department and continues throughout the legal order or sentence." [Emphasis added.]
Under the heading "Case Planning" it is provided:
"A case plan will be drawn up for each offender, based on the outcomes of the assessment process, interviews with the offender, and any other relevant material available such as comments made by the sentencing authority. Wherever possible, it should be drawn up in the presence of, and with the collaboration of, the offender. It should specify the programs or interventions that stem from the needs identified in the assessment process, with regard to reducing the dynamic risk factors and addressing offending behaviour. A case plan will also specify time-frames for programs and interventions, and a date for the review of the case plan. [Emphasis added.]
In developing an offender's case plan, staff must be mindful of the availability of approved and accredited programs and services, and their eligibility and exclusion criteria."
Chapter 11 of the Classification Manual deals with the CMT. In paragraph 1 under "Procedures" it is provided:
"The case manager/SCO is to ensure that the case plan and classification recommendations of the CMT are suited to each inmate."[Emphasis added.]
Paragraph 8 provides for examination by the reception committee of case files for all inmates newly received into the centre as the gaol of placement. This is "in order to identify those who may need full assessment including assessment by a psychologist for intellectual disability and those who may need a case plan variation ..." It continues "This procedure is to ensure that initial case plans of these inmates have properly addressed their needs and that their placement is appropriate." [Emphasis added.]
Paragraph 22 provides that serious offenders are to be part of the case management process at the centre.
"When a centre is notified that the assessment committee of the SORC is to visit to review serious offenders in the centre, the CMT is to meet and review each serious offender's classification, placement & case plan and make review documentation available prior to the visit."
In Chapter 13 concerning initial case plan and management it is provided at paragraph 2 that:
"The initial case plan is to be based on risk and criminogenic needs for inmates sentenced to greater than 2 months ... and on resources available to the department. The case plan must be explained to the inmate." [Emphasis added.]
Paragraph 12 provides:
"The CMT/Manager/Deputy Manager, Classification & Placement are to give consideration to risk/need assessment results the nature of the offence and the nature of the inmate's criminal record which are important indicators of an inmate's security risk as well as previous criminal history, age, whether or not further charges are pending, escape history, apparent stability and previous history in custody, ie. punishments, segregation." [Emphasis added.]
At paragraph 14 it is provided:
"For inmates with a sentence length of 12 months or greater, the initial case plan must reflect the intention of having the inmate participate in external leave program(s) at the appropriate time in his/her sentence ..." [Emphasis added.]
Paragraph 22 provides:
"The Manager, Offender Services & Program (Employment) at the centre of placement is to have the case plan of the inmate reviewed after reception in relation to programs and services available at that centre, and may have the initial classification and/or placement decision reviewed if such action appears warranted in light of gaol resources." [Emphasis added.]
The ELP Policy was in evidence. It provides relevantly in the introduction to Chapter 18:
"Eligible inmates should be encouraged to aim for external leave program participation towards the end of their sentence. This intention should form part of a case plan for the inmate well before actual participation is permitted under the criteria. Participation in external leave programs is a significant component of throughcare for the inmate returning to community life after discharge from custody." [Emphasis added.]
After reviewing the authorities the Tribunal considers that the following principles should be borne in mind when considering a claim for damages under s 108 of the AD Act.
(a) The Tribunal may order the Respondent to pay damages for any loss or damage suffered by reason of the Respondent's conduct. The Applicant bears the onus of proving, on the balance of probabilities, that he has sustained the loss he claims. The loss must be proven with a reasonable degree of certainty: Sutherland v Tallong Park Association Incorporated (No. 2) [2006] NSWADT 287 at [7] referring to Mooney v Commissioner of Police (No 3) [2003] NSWADT 18.
(b) The question is what loss or damage occurred by reason of the unlawful conduct: Sutherland at [7].
(c) There must be a connection between the unlawful conduct and the loss or damage not between an intervening lawful event and the loss: Tallong Park v Sutherland; Sutherland v Tallong Park Association Inc (EOD) [2007[ NSWADTAP 19 at [66] referring to Commissioner of Police v Mooney (No 3) [2004] NSWADTAP 22. The question is whether the defendant's breach "materially contributed" to the loss or damage suffered even if other factors more significantly caused the loss (unless intervening conduct caused the loss): Tallong Park at [66].
(d) Damages for breach of the AD Act must be compensatory not punitive: Cooper v Western Area Local Health Network [2012] NSWADT 39 at [89] referring to Purvis.
(e) Such matters as injury to feelings, distress and humiliation, the appropriate level of damages can be difficult to determine: Sutherland at [7] referring to Hall v Sheiban (1985) ALR 503 at 543.
(f) Factors which would inform the level of damages include; the severity of the breach, the fact that it was a one off incident, the context of the incident and the significance of the ongoing effects of the conduct: Cooper at [91]. Other cases might be useful on guidance on the kinds of damages awarded for breaches of the AD Act although are not binding as to the proper amount of damages: Cooper at [90].
(g) The amount awarded depends on the "experience and good sense" of the Tribunal member: Cooper at [86] referring to Alexander v Home Office [1988] 2 All ER 118 per May LJ at 122.
(h) As to non-economic loss the Tribunal should assess what is fair, reasonable and just: Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 at [63]. It is best to award restrained damages due to the impossibility of assessing the monetary value of non-economic loss: Alexander at 122. However, damages for non-economic loss should not be minimal as this would tend to trivialise or diminish respect for the public policy behind Anti-Discrimination legislation: Commonwealth v Evans [2004] FCA 654 at [32] referring to Alexander at [975]; Bonella v Wollongong City Council [2001] NSWADT 194 at [121].
(i) As to quantification of loss, the opportunity cost (that is the chance lost by reason of the wrong) must simply be assessed: La Trobe Capital & Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd (2011) 190 FCR 299; FCAFC 4 at [83]. Damages are to be assessed proportionate with what chances the gain are thought to be La Trobe: at [84].
(j) Damages which involve consideration of future possibilities and past hypothetical facts need to be assessed according to "the degree of probability that an event would have occurred, or might occur". The award of damages is to be adjusted to reflect the degree of probability: La Trobe at [86] referring to Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; 120 ALR 16 at [335].
(k) Where the loss is a lost opportunity to acquire a benefit the plaintiff bears the onus of establishing that the loss was caused by the conduct of the defendant and discharges that onus by establishing a chain of causation that continues up to the point where there is a substantial prospect of acquiring the benefit sought by the plaintiff: La Trobe at [87].
(l) Having reached the point that a loss is established its value must be estimated. This must be done no matter how difficult the task even if some guess work is involved: La Trobe at [90].
(m) Whilst the issue of loss caused by a defendant's conduct must be established on the balance of probabilities, hypotheses and possibilities, the fulfilment of which cannot be proved, must be evaluated to determine the amount or value of the loss suffered. Proof on the balance of probabilities has no part to play in the evaluation of such hypotheses or possibilities. Evaluation is a matter of informed estimation: La Trobe at [87].
(n) The award must be fair and reasonable and also arbitrary: Vento referring to Andrews v Grand & Toy Alberta Ltd 919780 83 DLR (3d) 452 at 475 - 476.
Mr Whiteoak has succeeded only in his claim in respect of the decision made on 15 December 2008 admitted by the Respondent. Although the decision complained of arose some days after the handing down of the Tribunal's decision in Contreras-Ortiz, final orders were not made until 20 January 2009. The evidence is that the Respondent took steps to introduce a non-discriminatory policy with respect to unlawful non-citizens to which policy Mr Whiteoak was then subject from its implementation on 23 March 2009.
In light of the findings which the Tribunal has made, Mr Whiteoak would only be entitled to compensation for loss of the opportunity to be housed in a less secure environment and consequential loss of the opportunity to engage in escorted pre-release leave arising from the decision of 15 December 2008.
On the basis of the authorities referred to, Mr Whiteoak must establish on the balance of probabilities that he sustained the loss he claims and that there is a reasonable degree of certainty that this has arisen by reason of the unlawful conduct. The Tribunal is satisfied that by the decision complained of Mr Whiteoak lost the opportunity to be progressed until the decision of 4 December 2009 which continued his security classification as Category C1. He also lost the opportunity in that period to undertake escorted pre-release leave which was not available to inmates subject to the C1 security classification.
As identified in La Trobe any damages for loss of opportunity must be assessed proportionately with what the chances of the gain are thought to be. The Applicant made no submissions on the calculation of quantum of damages other than to say they should be "substantial".
There was evidence in respect of the last two classification decisions that the reason for maintaining Mr Whiteoak at Category C1 was his failure to undertake the CUBIT program. There is evidence that Mr Whiteoak's failure to complete CUBIT was also of concern to the Respondent at the time of the 15 December 2008 decision. The relevant SORC minutes recommended CUBIT but noted that Mr Whiteoak had advised that he would only participate if the Department of Immigration reviewed his deportation. A psychological report attached to the minutes noted that Mr Whiteoak was in the moderate to high category of risk to the community. In the parole report it is noted that Mr Whiteoak insisted that he does not need to complete CUBIT. The recommendation referred to the fact that Mr Whiteoak was not participating in the sex offender programs and noted the psychologist's remarks from 1993 that he was "unlikely to respond to therapeutic intervention quickly if at all". In the case plan progress information it was noted that Mr Whiteoak was not interested in CUBIT (being a high intensity program) only in undertaking CORE (being a low intensity program) even though he was assessed as needing to redo CUBIT. Additionally, there was evidence from Mr Grant in respect of the 2006 decision that he had a particularly strong view about sex offenders completing sex offender's treatment prior to progression and that it would not have been out of the question for him to suggest that Mr Whiteoak could progress no further without undergoing sex offender treatment. There was no evidence of any change in circumstance which would have been likely to result in a progression in classification.
Accordingly, even had the discriminatory policy not applied to the decision of 15 December 2008, it was available to the Respondent to maintain Mr Whiteoak's C1 classification by reason of his non completion of CUBIT. This would have carried with it the inability to participate in pre-release leave programs.
In light of his existing C1 classification at the time of the decision, the concern about his participation in the CUBIT program and the fact that there was no evidence of any change in circumstances warranting a progression in classification, the Tribunal is not satisfied that Mr Whiteoak's opportunity for progression and housing in a less secure environment and to engage in escorted pre-release leave which was lost was more than residual. In those circumstances, and taking into account the authorities referred to, the fact that the Respondent introduced a New Inmates of Interest to Immigration Policy in March 2009 to which Mr Whiteoak was subject, the fact that the loss of opportunity was for a relatively short duration and was overtaken by a decision which has been found not to be discriminatory, in the Tribunal's view it is appropriate to assess the quantum of damages at the lower end of the scale. Accordingly, the Tribunal assesses Mr Whiteoak's damages for loss of opportunity in the amount of $500.
ANCILLARY RELIEF
Section 108(2)(c) of the AD Act empowers the Tribunal to order a respondent to "perform a reasonable act or course of conduct to redress any loss or damage suffered by the complainant".
Mr Whiteoak seeks an order pursuant to s 108(2) of the AD Act requiring that he be reclassified to C3 for the purposes of cl 22 of the C(AS) Reg and be granted external leave in accordance with s 26 of the C(AS) Act.
Mr Whiteoak says that the Tribunal is empowered to make such an order by reason that the legislature has seen fit to bind the Crown (see ss 5 and 4B AD Act) which includes the Respondent and there is nothing in the legislative scheme which would lead to the conclusion that s 108(2)(c) would not empower the order sought. He submits that such an order would be consistent with the general command that the Tribunal act "according to equity, good conscience and the substantial merits of the case" under s 73(3) of the ADT Act. This provision has been taken up in s 38(4) of the CAT Act.
The Respondent submits that the Tribunal's power under s 108(2) of the AD Act cannot override the legislative regime in place for the classification of inmates under C(AS) Act and C(AS) Reg including:
(a) s 70 of the C(AS) Act in relation to SORC's function of making recommendations on security classifications of serious offenders;
(b) s 197(2)(a)(i), (ii) and 2 of the C(AS) Act concerning the functions of SORC in relation to security classification and placement of serious offenders as well as providing reports and advice to the Parole Authority concerning release of serious offenders to parole; and
(c) s 232(a1) of the C(AS) Act in relation to the Commissioner having the "care, control and management of all offenders who are held in custody ...";
(d) Regulation 27(1)(c) and (3) of C(AS) Reg in relation to the procedure for the Commissioner to change a serious offender's classification.
The Tribunal is not satisfied on the basis of the submission on behalf of the Applicant that it has the power under s 108(2)(c) of the AD Act to effectively step into the shoes of the Respondent and exercise its powers for the purpose of classification. The Applicant has submitted that where two statues of the same legislature potentially intersect, it is long settled that "there is a general presumption that the legislature intended that both provisions should operate": per Gaudron J in Saraswati v The Queen (1991) 172 CLR 1 at 17. In the Tribunal's view, that is not authority for the proposition that it has the power under s 108(2) of the AD Act to bypass the steps required by the legislative regime for classification including the participation of SORC. Nor in the Tribunal's view would such an order be appropriate where the decision the subject of the complaint which has been substantiated, being the only decision in respect of which the Tribunal could make an order under s 108(2), has been overtaken by five subsequent classification decisions, the last progressing Mr Whiteoak to category C2. The Tribunal declines to make the order sought.
In the alternative, Mr Whiteoak seeks an order requiring the Respondent to consider afresh the exercise of the powers or functions conferred by ss 6 and/or 26 of the C(AS) Act and/or cl 22 of the C(AS) Reg in relation to him. This second order is of the type made by the Tribunal in Contreras-Ortiz.
The decision in respect of which relief is sought is that of 15 December 2008 occurring at a time when the Old Inmates of Interest to Immigration Policy was in place. Since that classification and the decision in Contreras-Ortiz the Respondent issued the New Inmates of Interest to Immigration Policy on 23 March 2009 supplemented by the Commissioner's Instruction 02/2011 dated 7/4/11 and the Commissioner's Memorandum dated 10 May 2011. These provided for an amended regime for the treatment of unlawful non-citizens and lawful non-citizens whose permanent residency visa had been cancelled by DIAC and relevantly that the classification decisions would be considered on their merits. The classification decisions of the Commissioner on 4 December 2009 and 15 April 2010 were made pursuant to the New Inmates of Interest to Immigration Policy and the Tribunal has determined that the claim for discrimination in respect of those decisions is not made out. Additionally, in the classification decision made on 29 August 2012 after Mr Whiteoak had completed a second round of CUBIT his classification was progressed to C2.
There is no evidence of a concern about continuing discrimination. In light of the Respondent's change in policy, the intervening decisions and Mr Whiteoak's ultimate progression to C2, the Tribunal finds that the order sought would lack utility and no order is made.
Mr Whiteoak lastly seeks an order pursuant to s 108(2)(c) permitting him to undertake escorted external day leave. It is said that such an order would be a "reasonable act" designed to "redress" the loss or damage suffered by Mr Whiteoak arising from the regression of his security classification to C1, the cancellation of his escorted external day leave program, and the maintenance of that position for more than 6 years. It is noted that the Applicant had, prior to being regressed, been classified as C3 for a period in excess of 4 years and performed ten escorted day leave excursions without incident.
The Tribunal's attention was also drawn to the progression of the Applicant's security classification to C2 meaning that he need not be confined by a physical barrier at all times but needed some level of supervision by a correctional officer or some other authorised person. It was further submitted that by the progression in classification the Respondent had determined that Mr Whiteoak might carry out community service work at the correctional centre for the Department or a public or local authority. Mr Whiteoak drew the Tribunal's attention to the operation of the Classification Manual which provides for progression towards a lower security rating and access to pre-release leave programs with a presumption that the inmate will always obtain significant benefit from such programs.
Additionally, the Tribunal's attention was drawn to Chapter 20 of the Classification Manual noting the risk of re-offending and decreasing community safety upon the release of an offender in the community without access to some external leave programs and noting the recommendation in the CUBIT report that it is a priority for Mr Whiteoak to be gradually reintegrated into society at the earliest opportunity.
For the reasons already expressed in respect of the Applicant's request for an order for reclassification the Tribunal is not satisfied that it has the power to make the order sought in light of the operation of the legislative classification scheme. Additionally, the Tribunal has found nothing discriminatory in the making of the classification decisions post 15 December 2008 to which the consideration of participation in leave programs is tied. Accordingly, there is no basis for the order sought and the order is declined.
COSTS
The Applicant has sought his costs of the proceedings. Section 60 of the CAT Act provides:
"60 Costs
(1) Each party to proceedings in the Tribunal is to pay the party's own costs.
(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.
(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,
(b)whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,
(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),
(g) any other matter that the Tribunal considers relevant.
(4) If costs are to be awarded by the Tribunal, the Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.
(5) In this section:
'costs' includes:
(a) the costs of, or incidental to, proceedings in the Tribunal, and
(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal."
The Applicant says that there are special circumstances warranting an award of costs including that the Respondent unnecessarily prolonged the proceedings, in particular by seeking to have the proceedings struck out in circumstances where that application was doomed to fail. He says that the complaint was never lacking in substance by reason, at least, of the admissions made on the summary dismissal application by the Respondent.
The Applicant further says that the Respondent continued to unlawfully discriminate against the Applicant in the 15 December 2008 decision on its own admission even though the Old Inmates of Interest to Immigration Policy had been found to be unlawfully discriminatory in Contreras-Ortiz.
The Applicant lastly says that the hearing was made unnecessarily complicated and long by reason of the Respondent's withdrawal of the admissions as to what constituted a service said to have been made in Whiteoak No 1.
Prior to its amendment by the Administrative Decisions Tribunal Amendment Act 2008 (NSW) in January 2009, s 88(1) of the ADT Act provided that the ADT might award costs in relation to proceedings before it, "but only if it is satisfied that there are special circumstances warranting an award of costs". This provision was similar in terms to s 60(2) of the CAT Act and the authorities in which the operation of s 88(1) was considered might inform the interpretation of s 60(2). "Special circumstances" under s 88(1) of the ADT Act before amendment was interpreted to mean that costs will only be awarded where there are circumstances that take the matter out of the ordinary course of events: Brooks Maher v Cheung [2001] NSWADT 18 or where there are factors which extend beyond those reasonably connected with the usual or ordinary pursuit of a claim: Kondos v Citadin Pty Ltd (LSD) [2003] NSWADTAP 7 at [25].
The Respondent was put to its application the subject of the decision in Whiteoak No 1 after non-compliance by the Applicant with several directions requiring him to file Points of Claim and evidence. The application for summary dismissal was put on two bases. Although it was unsuccessful in establishing that the complaints were lacking in substance, the Tribunal did conclude that the Applicant had failed to prosecute the complaint and made a guillotine order requiring the Applicant to comply with certain directions in default of which the complaint would be dismissed.
For the reasons expressed above, the Tribunal did not consider that the concessions made by the Respondent on the application for summary dismissal were binding and, even if they constituted admissions, the Respondent should be given leave to withdraw them having been made erroneously.
The disposal of the matter has also been the subject of a successful application on the part of the Respondent to strike out certain parts of the Amended Points of Claim and a partially successful application by the Applicant to further amend his Further Amended Points of Claim. The issue of what constituted "services" was strongly contested at the substantive hearing. An admission was made by the Respondent as to the 15 December 2008 decision meaning that the Applicant did not need to incur the costs of establishing that part of his claim subject to the proof of what constituted a service. The Applicant did not succeed in his claims in respect of the remaining classification decisions.
For these reasons the Tribunal is not satisfied that there are special circumstances within the contemplation of ss 60(2) and 60(3) of CAT Act warranting an award of costs and no order is made.
ORDERS
The Applicant's complaint that he was discriminated against by the Respondent in breach of s 19 of the Anti-Discrimination Act in the decision of the Respondent to classify him as C1 on 15 December 2008 is substantiated.
The Respondent is to pay the Applicant damages pursuant to s 108(2)(a) of the Anti-Discrimination Act assessed in the sum of $500, such damages to be paid into the Victims Support Fund pursuant to s 111A(2) of the Anti-Discrimination Act to be expended as money forming part of that Fund.
The Applicant's complaints are otherwise dismissed.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 14 April 2014
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