Whiteoak v State of New South Wales (Department of Justice and Attorney General - Corrective Services NSW)
[2012] NSWADT 135
•06 July 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Whiteoak v State of New South Wales (Department of Justice and Attorney General - Corrective Services NSW) [2012] NSWADT 135 Hearing dates: 27 July 2011, written submissions 31 May 2012 Decision date: 06 July 2012 Jurisdiction: Equal Opportunity Division Before: J Wakefield, Judicial Member Decision: The Tribunal orders:
1.The complaint be amended pursuant to s. 103 of the Anti-Discrimination Act, 1977 to include as grounds of complaint the classification decisions made by the Respondent on 4 December 2009 and 15 April 2010.
2.The Respondent's application under s.102 of the Anti-Discrimination Act, 1977 read with s. 92(1)(a)(i) and (ii) is dismissed.
3.The Applicant is to file and serve Points of Claim and any evidence within 28 days from the date of this Order
4.In default of compliance by the Applicant with Order 3 the complaint be dismissed in whole pursuant to s.102 of the Anti-Discrimination Act, 1977 read with s.92(1)(b).
5.On compliance with Order 3 the Registrar is requested to list the proceedings for a case conference on a date to be notified to the parties.
Catchwords: DISCRIMINATION - on grounds of race - application to dismiss claim - lacking in substance; want of prosecution - repeated failure to comply with orders of Tribunal Legislation Cited: Administrative Decisions Tribunal Act 1977 (NSW)
Anti-Discrimination Act 1977 (NSW)
Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2009 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Administration of Sentences) Regulation 2008 (NSW)
Crimes (Administration of Sentences) Regulation 2001 (NSW)
Migration Act 1958 (Cth)Cases Cited: Barake v. Red & White Star Cabs Co-operative Limited t/as Maitland, Beresfield & Raymond Terrace Taxi Services [2011] NSWADT 222
Bassili v Star City Pty Ltd [2008] NSWADT 62
Bradley v State of New South Wales [2002] NSWADT 11
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Commissioner of Corrective Services v. Aldridge [2000] NSW ADTAP 5
Commissioner of Police New South Wales Police Service v Orr [2001] NSWADTAP 16
Contreras-Ortiz v Commissioner Department of Corrective Services [2008] NSWADT 308
Contreras-Ortiz v Commissioner Department of Corrective Services [2009] NSWADT 12
Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5
Docherty v The Smith Family [2011] NSWADT 26
Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Fairey v Fairey (No 2) [2001] NSWCA 173
Fei v Director-General, Department of Commerce (State of NSW) (No 2) [2009] NSWADT 109
Fricke v Corbett Research P/L [2004] NSWADT 128
Harding v Vice Chancellor University of NSW [2003] NSWADT 74
Han v NSW Department of Health [2006] NSWADT 113
Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13
Herber v Glen Henney & Son Pty Limited (No.2) [2007] NSWADT 230
Hillman v Bankstown District Sports Club Ltd (No 2) [2007] NSWADT 179
Hoser v Hartcher [1999] NSWSC 527
Hurst v Star City Pty Ltd [2009] NSWADT 65
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Karekar v TAFE Commission of New South Wales [2000] NSWADT 187
Lunn v Storm Retirement Village (EOD) [2003] NSWADTAP 62
MacDonald v Publick [1998] NSWSC 428
Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65
Mohamed & ors v State of NSW (NSW Police Force) [2009] NSW ADT 51
Nicholls & Nicholls v Director General, Department of Education & Training (No.2) [2009] NSWADTAP 20
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Omeri v Quality Assurance Service Pty Limited (2003) NSWADT 188
O'Sullivan v Pehm [2010] NSWADT 57
Paramasivam v Vice Chancellor University of New South Wales [2003] NSWADTAP 2
Prakash v Bob Borg Enterprises Pty Ltd [1999] NSWADT 73
Purvis v State of New South Wales [2003] HCA 62
Rae v Commissioner of Police, NSW Police Force (No2) [2010] NSWADT 36
Razaghi v Director-General NSW Department of Health & Anor [2005] NSWADT 202
Richard v Director General, Department of Justice and Attorney General (Corrective Services NSW) [2011] NSWADT 158
Robertson v Wentworth Area Health Service [2004] NSWADT 274
Salama v Qantas Airways Ltd [2002] NSW ADT 119
Spelson v George (1992) 26 NSW LR 666
State Electricity Commissioner of Victoria v Rabel [1998] 1 VR 102
Stamborough v. Woolworths Limited [2005] NSWADT 2003
Sullivan v State of New South Wales (NSW Police Force) [2009] NSWADT 2
Sydney University Post-Graduate Representative Association v. Minister for Transport Services [2006] NSWADT 83
Tredinnick v Wentworth Area Health Service [2000] NSWADT 172
Wollongong City Council v Bonella & Ors and Bonella & Ors v Wollongong City Council (EOD) [2002] NSWADTAP 26Category: Interlocutory applications Parties: Barry Whiteoak (Applicant)
State of New South Wales (Department of Justice and Attorney General - Corrective Services) (Respondent)Representation: Counsel
J Clark, M Gibian (supplementary submissions) (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
This is an application by the Respondent for summary dismissal of the proceedings pursuant to s. 102 of the Anti-Discrimination Act1977 (NSW) ("ADA").
Grounds of Application
The Respondent raises the following grounds in support of its application:
(1) the proceedings are lacking in substance (particularly since to the extent that there was discrimination, the Respondent has already taken appropriate steps to redress it and the remedy sought is not available);
(2) the conduct, if proven, would not disclose a contravention of the ADA or the regulations; and
(3) want of prosecution.
Relevant Background
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.
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.
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.
On 28 December 2006, the Commissioner's delegate 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, 4 December 2009 and 5 April 2010.
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. Certain SORC and Probation and Parole Service reports in the evidence have asserted that the Applicant presents a moderate to high risk of re-offending and that his classification and placement would be reconsidered when the Applicant had completed CUBIT.
Evidence
The Applicant has filed no evidence. In support of the application for summary dismissal the Respondent relies upon:
(1) The Affidavit of Ms Glenn Singer, a solicitor employed by Corrective Services (New South Wales) dated 29 March 2011 and Exhibit GS-1 to that affidavit;
(2) Chapter 18 of Corrective Services New South Wales Operations Procedures Manual entitled "External Leave Programs Policy";
(3) President of the Anti-Discrimination Board ("ADB") Summary of Complaint ("Summary of Complaint") and bundle of documents filed in the Tribunal on 21 June 2010 ("President's Bundle").
History of the matter before the Tribunal
The President of the ADB referred the complaint to the Tribunal pursuant to s.93C of the ADA on 17 June 2010.
At a directions hearing on 4 August 2010 the Applicant was ordered to file and serve Points of Claim and evidence by 17 September 2010.
The Applicant's then solicitor issued a Summons to Produce upon the Respondent on 17 August 2010. That summons was returnable on 27 August 2010. The documents to be produced were as follows:
"1. The Applicant's Corrective Services file (MIN 103335), including but not limited to documents relating to all programs undertaken and completed by the Applicant and a list of day leave taken, and all Parole, SORC and classification decisions.
2. Copy of all policy documents relating to classification of inmates as C1, C2 and C3, both
(i) currently in force; and
(ii) in force as at 28 December 2006;
3. Criteria, procedures and guidelines relating to the CUBIT program both pre-2005 and post- 2005."
The Respondent produced documents in answer to the summons.
The Applicant failed to comply with the orders of 4 August 2010. On 14 September 2010 the Applicant was directed to file and serve his Points of Claim and evidence by 1 October 2010. He failed to comply with this order. On 1 December 2010 the Applicant was directed to file and serve his Points of Claim and evidence by 18 February 2011. He failed to comply with this order.
By letter dated 1 December 2010, the Respondent advised the Applicant through his then solicitor, Mr Murphy, that on the basis of the Summary of Complaint, the Respondent considered that there were serious deficiencies in the Applicant's case and that the Respondent would, at an appropriate time, ask for the matter to be set down for the hearing of a summary dismissal application. The letter made reference to paragraph 16 of the Tribunal's Practice Note No. 19 Equal Opportunity Division: Practice and Procedure and noted that the appropriate time for making a summary dismissal application would be after the Applicant had filed and served his evidence.
No evidence was filed on behalf of the Applicant in response to this letter. The Respondent by its letters dated 14 March 2011 and 16 March 2011 advised Mr Murphy that the Respondent was to file and serve its submissions on an application for summary dismissal by 18 March 2011 and that the Applicant was to respond to those submissions by 30 March 2011. He did not do so.
On 17 March 2011, the Respondent consented to the Applicant's request (by his solicitor) that the deadline for compliance with the orders of 1 December 2010 be extended to 25 March 2011. The Applicant did not comply with the extended timetable.
The Applicant has been legally represented from the commencement of proceedings including at the directions hearings. The Applicant by his solicitors has failed to respond to the Respondent's requests to identify when his Points of Claim and evidence would be filed.
The application for summary dismissal was first listed for hearing on 6 May 2011. At that time, over the Respondent's objection, Mr Murphy sought and obtained an adjournment on terms that he take instructions from the Applicant as to the prosecution of the matter and in particular the Respondent's application for summary dismissal. It is uncertain whether this occurred. The Applicant's present solicitor, Ms McGowan, instructing Mr Clark of Counsel, was retained on the afternoon of 26 July 2011, the day before the adjourned hearing of this application. Mr Clark had previously been retained by Mr Murphy to provide a merits advice to Legal Aid, but briefed with no documents to enable him to do so. Mr Clark had not spoken with the Applicant nor did he believe had his instructing solicitor.
The submissions and evidence on the Respondent's application had been forwarded to Mr Murphy under cover of the Respondent's letter dated 30 March 2011. By letter from the Respondent dated 11 May 2011 the Applicant was personally served at Long Bay Correctional Complex with a copy of the Respondent's Outline of Submissions on the application for summary dismissal together with Ms Singer's affidavit and the correspondence previously forwarded to his solicitor. The Applicant acknowledged receipt of these documents on 19 May 2011.
As at the date of hearing, the Applicant had not filed or served Points of Claim or any evidence nor had submissions been served on the Applicant's behalf in response to the application for summary dismissal.
While preparing its reasons for decision, the Tribunal considered that it would be assisted by submissions on the issue of whether the Applicant fell within the operation of Instruction No. 2/2009 entitled "Inmates of Interest to the Department of Immigration and Citizenship" issued by the Commissioner pursuant to s. 235B of the C(AS) Act on 23 March 2009 (Commissioner's Instruction). The Tribunal caused a letter to be issued by the Registrar on 23 March 2012 inviting the parties to make further submissions by 13 April 2012 in relation to two issues:
(a) Whether, and if so on what basis, the Commissioner's Instruction applies to the Applicant;
(b) If the Commissioner's Instruction does not apply to the Applicant pursuant to what policy was the Applicant's classification and management reviewed on 4 December 2009 and 15 April 2010.
The Respondent filed supplementary submissions on 13 April 2012. The solicitor for the Applicant subsequently requested an extension of time to file submissions upon the issues raised in the Tribunal's letter. By letter dated 17 May 2012, the Tribunal wrote to the parties advising that the Applicant's request for an extension of time had been granted and that the Applicant was to file submissions restricted to those questions put to the parties in the Tribunal's letter dated 23 March 2012 by 31 May 2012. The Applicant filed submissions dated 31 May 2012 on 1 June 2012.
The Applicant's claims of discrimination
As has been indicated, the Applicant has filed and served no Points of Claim. The President's bundle contains letters from the Applicant to the President of the ADB dated 22 December 2008, 24 April 2009, 21 December 2009 and 1 June 2010. It appears from these documents that the Applicant complains that he was discriminated against on the ground of race (being his UK citizenship) by reason of the security classifications that were assigned to him ("the classification complaints"). He apparently relies on the Tribunal's decision in Contreras-Ortiz v, Commissioner, Department of Corrective Services [2008] NSW ADT 308 ("Contreras-Ortiz").
The period in which the discrimination is alleged to have occurred is from 28 December 2006 to April 2010. During this period, the Applicant was classified as follows:
(1) following the SORC's 5 December 2006 recommendation, on 28 December 2006 the Commissioner's delegate regressed the Applicant's security classification from C3 to C1;
(2) following the SORC's 2 December 2008 recommendation, on 15 December 2008 the Commissioner's delegate continued the Applicant's security classification as C1 and changed his placement from the MSPC to the Junee Correctional Centre;
(3) following the SORC's 17 November 2009 recommendation, on 4 December 2009 the Commissioner's delegate did not accept that recommendation and classified the Applicant as a C1 and placed him at Junee Correctional Centre;
(4) following the SORC's 16 March 2010 recommendation, on 15 April 2010 the Commissioner's delegate did not accept that recommendation and classified the Applicant as a C1 and placed him at Junee Correctional Centre.
In the Applicant's letter to ADB dated 22 December 2008 he asserts that the Commissioner's 2005 policy concerning inmates who are of interest to immigration ("Old Inmates of Interest to Immigration Policy") resulted in the regression of the Applicant's C3 classification to C1. He stated: "[t]he new policy took away my Day Leaves and reduced my classification down to C1; this in effect meant that I was no longer able to meet one of the requirements of the Parole Board". The Applicant is seeking that the ADB "help [him] in regaining [his] C3 classification and Day Leaves as Day Leaves are a major part of the Pre-Release Program that the Parole Board requires inmates to do before being granted parole". In the same letter, the Applicant referred to a decision by the "Immigration Department" to cancel his "Permanent Residential [sic] Visa" and deport him on being granted parole. He felt this decision was "strongly racist" ("the Immigration complaint").
In his letter dated 24 April 2009 to the ADB, the Applicant confirmed that he did wish 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 "Immigration Department" saying: "[i]t is discrimination because the policy decisions are treating me differently to what an Australian citizen is treated". Referring to the Immigration complaint he asserted that the decision: "was based solely on the fact that I am a British subject who is in gaol and not on my offensive behaviour". The Applicant said that the decision to cancel his "Permanent Residency Visa" and deport him was "clearly discrimination where a foreigner who has spent time in gaol is different to an Australian who has also spent time in gaol".
By letter dated 21 December 2009 to the ADB the Applicant requested that the Board continue with the discrimination case "to see if you can get my C3 reinstated".
In his letter dated 1 June 2010 to the ADB the Applicant said: "I do not want monitary [sic] compensation as the change in classification has not cost me any money. I want you now to use all the powers available to you and your organisation to persuade and or force the Corrective Services to change inmates classifications back".
The Summary of Complaint has categorised the classification complaint as to breaches of ss 7, 19 and 53 of the ADA. The Summary of Complaint reports that the Immigration complaint has not been accepted for investigation and was not the subject of the President's recommendation.
The Applicant apparently makes no claim for indirect discrimination. The Tribunal notes that the indirect discrimination case had been rejected by the Tribunal in Contreras-Ortiz at [146-175]: see also Richard v Director General, Department of Justice and Attorney General (Corrective Services NSW) [2011] NSW ADT 158 at [122].
Procedural Matter
There is a procedural issue arising in respect of the classifications in 2009 and 2010. It appears from the President's bundle that the ADB received the complaint from the Applicant alleging discrimination on the grounds of race and the provision of goods and services on 23 December 2008. The period of complaint is said to be from 28 December 2006 until 24 April 2009 and covered the 2006 and 2008 classification decisions. The 24th April 2009 is apparently a reference to the further letter received from the Applicant which made reference to the complaint.
As Simpson, J held in MacDonald v. Publick [1998] NSWSC 428 neither the President nor the Tribunal has any relevant power or function other than in relation to a "complaint". Generally, a complaint cannot include acts occurring after the complaint was lodged. See also Wollongong City Council v. Bonella & Ors and Bonella & Ors v. Wollongong City Council (EOD) [2002] NSWADTAP 26 at [75], Richard v. Director General, Department of Justice and Attorney General (Corrective Services NSW) [2011] NSWADT 158 at [51].
Section 87 ADA provides that "complaint" means a complaint made under s. 87A and includes a matter referred to the Tribunal under s. 95(2). Section 87A ADA provides relevantly:
"(1) A complaint alleging that a named person has, or named persons have contravened the provisions of this Act or the regulations ... may be made by any one of the following:
one or more persons;
on his/her or their own behalf, or
on his, her or their own behalf as well as on behalf of another person or persons, ....."
The complaint the subject of these proceedings is a complaint within the meaning of s. 87A of the ADA.
This situation was not altered by the enactment of the Anti-discrimination Amendment (Miscellaneous Provisions) Act 2004 which provided for s. 91C to permit the President of the ADB to amend a complaint after it has been made. Unless the powers contained in s. 91C or s. 103 of the ADA have been exercised, it is not possible for a complaint to encompass conduct which occurred after the date upon which the complaint was initially made: see Sydney University Post Graduate Representative Association (SUPRA) & Ors v. Minister for Transport Services & Ors [2006] NSWADT 83 at [22] - [24].
Section 91C provides:
"91C. Amendment of Complaint
(1) If, at any time after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal:
(a) the person making the complaint seeks to amend the complaint, or
(b) the President becomes aware of information that could conveniently be dealt with as part of the complaint,
the person making the complaint is to be offered the amend the complaint.
(2) An amendment may be made in writing but, if further written material is already in the possession of the President or the Board, the President may treat the written material as if it formed part of the complaint.
(3) If a complaint is amended at any time, the respondent must be informed in writing by the President of the substance of the amendment and, if the effect of the amendment is to cause the complaint to be made against further or other persons, they must be informed in writing of the complaint as amended...."
Additionally, s.103 ADA provides:
"103. Tribunal may amend complaint
The Tribunal may, on the application of a party to the complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint.
A complaint may be amended to included additional complaints and anything else that was not included in the complaint as investigated by the President.
An amendment may be made subject to such conditions as the Tribunal thinks fit."
There is no material in the President's bundle which evidences an amendment to the complaint or notification by the President to the Respondent of the substance of any amendment pursuant to s. 91C of the ADA. The Respondent apparently received a letter from the President on 10 February 2010 requesting clarification as to why the Applicant did not resume his prior classification of C3 upon the issue of the Commissioner's Instruction in February 2009. The Respondent provided a response which apparently refers to the complaint as it was originally notified. The letter from the President to the Respondent dated 10 February 2010 is not in the President's bundle.
The Applicant has not made application to the Tribunal to amend the complaint. The question is whether the Tribunal should do so of its own motion.
The issue of amendment was not raised at the hearing. Mr Clark on behalf of the Applicant, having been briefed with no papers in the matter, was not in a position to make submissions as to any substantive matter including the question of amendment. The Respondent in its submissions approached the complaints on the basis of and made submissions concerning the four security classifications including those in 2009 and 2010 after the complaint. It came prepared and was able to deal with all four grounds at the hearing. In so far as it has been afforded procedural fairness, the Applicant would not be prejudiced by such an amendment.
It is plainly in the interests of the parties and the interests of justice at a saving of the time and the cost of different proceedings concerning the 2009 and 2010 classifications that the matters raised by the Applicant after lodging the complaint, being the later classification decisions, be included in the complaint. The Tribunal considers it appropriate in the circumstances to amend the complaint under s. 103 of ADA to the extent necessary so as to include in the complaint the Respondent's classification decisions on 4 December 2009 and 15 April 2010. An order to this effect will be included in the orders made by the Tribunal on the application.
The Classification Process
It is useful to set out the process by which inmates are classified and a helpful summary of this was contained in the Respondent's written submissions.
Part 2.2 of the Crimes (Administration of Sentences) Regulation 2008 (NSW) ("Regulation") deals with inmate case management and classification. By clause 12(2) of the Regulation the Commissioner must prepare an inmate's first case plan as soon as practicable after the inmate is received into the correctional centre.
Clause 13(1) of the Regulation provides that a case plan must indicate:
(1) the inmate's classification;
(2) the correctional centre at which the inmate will be placed; and
(3) the services and programs in which the inmate should be encouraged to participate.
Clause 13(3) of the Regulation sets out matters to which regard must be had in formulating any inmate's case plan. The case plan includes the inmate's classification. These matters include:
"(c) whether or not the inmate is likely to be deported from Australia ..."
Clause 29 of the Regulation specifies information that must be considered concerning classification as follows:
"For the purpose of making any decision with respect to a person's classification under this Division, consideration must be given to any advice received from the NSW Police Force or from any other public authority (whether of this or any other State or Territory or of the Commonwealth) established for law enforcement, security or anti-terrorist purposes."
Clause 14 of the Regulation empowers the Commissioner to nominate a departmental officer to prepare recommendations for a case plan (including as to classification). Clause 15 of the Regulation empowers the Commissioner to nominate a review officer to prepare a report on the recommendations. Clause 17 of the Regulation provides that the Commissioner must adopt a case plan for an inmate after considering the report prepared by the review officer. The Commissioner is not bound to follow the recommendations in the report.
Clause 22(1) of the Regulation imposes an obligation on the Commissioner to classify each male inmate to one of the categories provided for in that clause. These classifications are in descending order of security from highest to lowest security risk: AA, A1, A2, B, C1, C2 and C3. By cl.22(2), the Commissioner may at any time vary or revoke a classification order made under cl.22(1).
The legal obligations concerning classification are supplemented by Corrective Services NSW policy outlined in the Inmate Classification and Placement Procedures Manual (November 2005 Interim) ("Classifications Manual"). The Classifications Manual is Chapter 2 of the Corrective Services NSW Operations Procedures Manual ("OPM"). The Commissioner's delegations referred to above are outlined in Chapter 9 of the Classifications Manual.
Where the Applicant is a "serious offender" recommendations as to classification are made by SORC. A decision is then made by the Commissioner or his delegate.
Chapter 18 of OPM is entitled "External Leave Programs Policy". Section 18.1.7 provides that to be eligible for an external leave program an inmate must have a C3 classification. Section 18.1.9 makes special provision for those inmates identified as sex offenders:
"Prior to considering participation in an External Leave Program, the CMT must ensure that a risk assessment has been undertaken and any other Departmental policy requirements regarding sex offenders are fulfilled. NB. The risk assessment must be in the low to moderate range for the inmate to be considered for a C3 classification and participation."
Section 18.1.11 of Chapter 18 provides:
"Serious Offenders/Public Interest Inmates will only be permitted to participate in External Leave Programs if the Commissioner has granted approval following consideration and recommendation from the Serious Offenders Review Council (SORC) or its sub-committee the Pre-release Leave Committee (PRLC) for their participation."
The Commissioner's Old Inmates of Interest to Immigration Policy
From around 1 November 2005 until 23 March 2009, the policy of the Commissioner in relation to "inmates of interest to immigration" who were "Unlawful Non-Citizens" provided that "Unless exceptional circumstances suggest otherwise, no inmate should be considered for a progression to "C3/Category 1" or for the issuing of a section 6(2)/26 order enabling work or program activity outside a correctional centre". (Contreras-Ortiz at [4], [27]). This policy was restated in a memorandum from the Commissioner dated 28 March 2006 (Contreras-Ortiz at [28]) and again in a memorandum from the Commissioner dated 19 May 2006 (Contreras-Ortiz at [28]). The policy was inserted into the Classifications Manual at section 18.1.14 in December 2006 (Contreras-Ortiz at [28], [31]).
The Commissioner's New Inmates of Interest to Immigration Policy ("New Inmates of Interest to Immigration Policy")
On 20 January 2009 in Carlos Contreras-Ortiz v. Commissioner, Department of Corrective Services [2009] NSW ADT 12 ("Contreras-Ortiz [No 2]") the Tribunal exercised its power under s.108(3) of the ADA to make an order of general application affecting persons other than the complainant in the following terms:
"1. The first and second respondents be enjoined from:
(a) discriminating against inmates on the ground of their race by refusing to provide the following services:
(i) providing development programs, including development programs involving work or employment outside a correctional centre;
(ii)considering whether those inmates should be permitted to participate in development programs, including development programs involving work or employment outside a correctional centre;
(iii) finding work or employment for those inmates, including work or employment outside a correctional centre;
(iv)considering whether to find work or employment for those inmates, including work or employment outside a correctional centre;
(v)varying the classification of inmates for the purposes of the provision of appropriate development programs;
(vi)considering whether the classification of inmates should be varied for the purposes of the provision of appropriate development programs;
(vii)considering exercising the powers or functions conferred by sections 6 and/or 26 of the Crimes (Administration of Sentences) Act 1999 (NSW) and/or clause 22 of the Crimes (Administration of Sentences) Regulation 2008 (NSW) in relation to particular inmates; and
(b) discriminating against inmates on the ground of their race in the terms on which the services referred to in (i) are provided; and
(c) authorising, instructing or permitting their servants or agents to engage in the conduct referred to in (i) or (ii)."
In the principal proceedings, Mr Contreras-Ortiz, a Columbian citizen and inmate, had contended that he was denied access to work release or other release programs which required a "C3" classification because of his status as an "Unlawful Non-Citizen". Under the Old Inmates of Interest to Immigration Policy in the absence of "exceptional circumstances" he could not be considered for progression in classification. He claimed that this was discriminatory on the grounds of race.
The Tribunal found that the assigning of a classification to a prisoner is a "service" within the operation of ss.4 and 19 of the ADA: at [129] and accepted that citizenship was an aspect of "race" for the purposes of the ADA: at [66]. The Tribunal concluded that the Respondent had contravened s. 19(a) and (b) of the ADA: at [176].
On 23 March 2009 in response to the decision in Contreras-Ortiz, the Commissioner issued the Commissioner's Instruction.
The Commissioner's Instruction defines "Inmates of Interest to DIAC" as including inmates who are not Australian citizens and who are serving a total sentence of 12 months or more.
The Commissioner's Instruction provides relevantly:
"Inmates who are non-citizens and who remain of interest to DIAC in that they are to be deported/removed ... 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 C2 D 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 ...
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."
The Claims for Dismissal
The s.92(1)(a) claims
Section 102 of the ADA provides:
"The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92(1)(a)(i)or(ii)or(b)."
In turn, s.92(1) of the ADA provides:
"If at any stage of the President's investigation of a complaint:
(a) the President is satisfied that:
(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or
(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or ....
(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,
the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint."
Exercise of the power to dismiss a complaint
The power to dismiss a complaint summarily under s.102 of the ADA have been considered extensively by the Tribunal. The Tribunal has adopted a careful approach and emphasised that the power should be exercised with exceptional caution and only if the circumstances clearly warrant such action. See Commissioner of Police, New South Wales Police Service v Orr [2001] NSW ADTAP 16; Razaghi v Director General, Department of Health & Anor [2005] NSW ADT 202; Han v NSW Department of Health [2006] NSW ADT 113; Hay v State of New South Wales (New South Wales Police Service) [2006] NSW ADT 13; Hillman v Bankstown District Sports Club Ltd (No 2) [2007] NSW ADT 179; Bassili v Star City Pty Ltd [2008] NSW ADT 62; Mohamed & ors v State of NSW (NSW Police Force) [2009] NSW ADT 51; Hurst v Star City Pty Ltd [2009] NSW ADT 65; Rae v Commissioner of Police, NSW Police Force(No 2) [2010] NSWADT 36 at [84].
As Pritchard JM observed in O'Sullivan v. Pehm [2010] NSW ADT 57 at [52], the Tribunal's approach is consistent with the principles applicable to the inherent jurisdiction to terminate an action summarily as articulated by the High Court in General Steel Industries Inc v. Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [129-130].
In exercising the power to dismiss summarily the Appeal Panel in Lunn v. Storm Retirement Village (EOD) [2003] NSW ADTAP 62 at [20] adopted the approach of Ormiston JA in State Electricity Commissioner of Victoria v. Rabel [1998] 1 VR 102 at [109] where it was held concerning a provision similar to s.92(1)(a)(i) of ADA in Equal Opportunity Act, 1984 (VIC) that:
"In the absence of a proper hearing at which the Complainant has an opportunity to call all relevant evidence, there can be no satisfactory way of determining that a complaint should be dismissed at a preliminary stage, unless it can be demonstrated, either from the materials by which the complainant has instituted the claim or by reference to facts which would undoubtedly deny the complainant relief, that the complaint is so hopeless that it should be summarily brought to an end."
The Tribunal in Omeri v. Quality Assurance Service Pty Limited [2003] NSW ADT 188 at [20] noted (in respect of the precursor to s.102) that:
"The standard of satisfaction for a Section 111 application is quite high. The Tribunal must be satisfied in effect that the complaint has no chance of succeeding on the evidence as set out before it."
The Tribunal in Fricke v. Corbett Research P/L [2004] NSW ADT 128 found at [36]:
"It has been suggested that 'prior to the Tribunal commencing a hearing on the merits, it is difficult, if not impossible, for the Tribunal to determine whether there may be substance to a complainant's allegations. Generally, it is far more appropriate that the merits of a complainant's case be reviewed as the hearing into the merits proceeds, rather than on a pre-hearing basis...'" Ehl v. Department of Education and Training and NSW Teachers Federation (1999) NSW ADT 102 at para.14. See also Dee v. Commissioner of Police & Anor (2003) NSW ADT 217 at para. 24."
The Tribunal further found at [38] that:
"The Tribunal approaches its role by seeing whether the facts as stated by a complainant at their highest show that there are grounds on which to decide that the complaint either ought to be dismissed or alternatively, permitted to proceed to a full hearing, in which case the Respondent's evidence will be called."
This approach was adopted in Han.
The Tribunal in Fricke found at [35] that:
"Ultimately it is for each Tribunal to determine the application according to its own circumstances. It is for the Tribunal to decide whether the application should be heard and determined prior to the full hearing of the complainant's case."
Additionally, there is a special need for caution where, as in this case, the dismissal application is made prior to the adducing of the Applicant's evidence at the substantive hearing: see Karekar v. TAFE Commissioner of New South Wales [2000] NSW ADT 187 at [36]; Tredinnick v Wentworth Area Health Service [2000] NSW ADT 172 at [33]; Bradley v. State of New South Wales [2002] NSW ADT 11 at [30]; Robertson v. Wentworth Area Health Service [2004] NSW ADT 274 at [28].
Relevantly, summary dismissal is not appropriate where there is a serious question of fact to be tried. See Spelson v. George (1992) 26 NSW LR at [666], Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 and the discussion in Barake v. Red & White Star Cabs Co-operative Limited t/as Maitland, Beresfield & Raymond Terrace Taxi Services [2011] NSWADT 222 at [20]-[23]. In the absence of extraordinary circumstances disputed questions of fact should not be dealt with in a summary dismissal application; Stamborough v. Woolworths Limited [2005] NSWADT 2003 at [28].
Respondent's Submissions
In general terms, the Respondent submits that the classification complaints are either "lacking in substance" within the meaning of s.92(1)(a)(i) of the ADA, or that they would "not disclose the contravention" of a provision of the ADA or the regulations within the meaning of s.92(1)(a)(ii). The Respondent concedes that the 2006 and 2008 classifications would be found to be discriminatory in light of the decision in Contreras-Ortiz . However, the Respondent submits that to the extent the Applicant's complaint does disclose discriminatory conduct, including in respect of the 2009 and 2010 classifications, the Commissioner by issuing the Commissioner's Instruction has already taken appropriate steps to remedy and redress that conduct. The Respondent submits that the Commissioner's Instruction is evidence of there being no discriminatory intent concerning the 2009 and 2010 classifications as it provides for classifications to be considered on their merits. The Respondent submits that in circumstances in which no other relief is sought dismissal of the complaint is clearly warranted.
Applicant's Submissions
At the hearing, Counsel for the Applicant, Mr Clark, advised the Tribunal that he was not in a position to make submissions upon the Respondent's substantive application. In fairness to Mr Clark, although he had been retained in the matter by Mr Murphy, he was yet to be provided with or have the opportunity to review any documents. Given the history of the matter before the Tribunal, including that the Respondent apparently served the relevant materials upon Mr Murphy by letter dated 30 March 2011, that the Applicant had personal notice of the application and the Respondent's submissions from no later than 19 May 2011 and that the application had already been adjourned once, the Tribunal determined that it was appropriate to allow the application to proceed. Mr Clarke made some submissions on the exercise of the discretion to dismiss the proceedings for want of prosecution to which the Tribunal will refer below.
When a complaint is lacking in substance
A number of authorities have considered when a complaint is "lacking in substance". In Harding v. Vice Chancellor, University of NSW [2003] NSW ADT 74 at [24] the Tribunal set out the following principles which it considered should be applied in determining whether a complaint lacked substance:
"The Respondent to the complaint bears the onus of showing that the complaint should be dismissed;
A complaint will be lacking in substance when there exists no factual basis for the allegations, or the allegations lack merit: See Langley v. Niland & Anor: [1981] 2 NSWLR 104 at 107; Reyes-Gonzalez v. Sydney Institute of Technology (1998) NSW EOT (6 March 1998) at 6;
A complaint lacks substance if it contains 'an untenable proposition of law or fact': State Electricity Commissioner of Victoria v. Rabel [1998] 1 VR 102 at 108-109 per Ormiston J.A.;
If the Tribunal can see a substantial case, even though it is badly pleaded, the action cannot be summarily terminated.
The Tribunal should exercise its discretion to dismiss a complaint summarily with exceptional caution and only if the circumstances clearly warrant such action."
In Karekar v. TAFE Commission of NSW [2000] NSW ADT 187 the Tribunal agreed that it was appropriate to describe the complaint as "lacking in substance" if it can be demonstrated or that the allegations lack merit.
The Tribunal held at [35]:
"In undertaking this examination we believe that the appropriate way forward is to take the complainant's evidence at its highest point or, in other words and for the purpose of this exercise, to accept that everything which the complainant has put in evidence is true and then determine whether he could possibly succeed in his complaint of racial discrimination. In essence and in the circumstances of this case, the Tribunal should evaluate the evidence as if a 'no case' submission has been made at the conclusion of the complainant's evidence. If at the end of this exercise the Tribunal concludes the complainant could not succeed it is likely, in the absence of abuse of process, that the complaint has proceeded this far because the complainant has misunderstood legal principles or has been advancing an untenable proposition of law or fact."
This approach was followed in Salama v. Qantas Airways Ltd [2002] NSW ADT [2002] NSW ADT 119.
In Paramasivam v. Vice Chancellor, University of New South Wales [2003] NSW ADTAP 2 at [25] the Appeal Panel found that:
"... the complaint, in legal terms, comprises the evidence that exists to support it. If that evidence does not support the factual allegations or, even if they do, if the factual allegations do not comprise a breach of the ADA, the complaint 'lacks substance'."
In O'Sullivan v Pehm [2010] NSWADT 53 at [57] the Tribunal adopted the observation of Ormiston JA in Rabel who considered the expression "lacking in substance" to connote "an untenable proposition of law or fact". His Honour continued "If one may discern, in these provisions, an attempt to express the powers of tribunals in non technical language, then .... "lacking in substance" might seem to represent a claim where the Defendant could obtain summary judgment ...." . The Tribunal in Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [34] observed that this was a helpful description "which will assist the Tribunal to determine whether the complainant is .... "lacking in substance"". See also Barake at [26].
Taking these authorities into account, in order to succeed on the application on the ground that the complaint is lacking in substance, the Respondent would need to establish that there is no factual basis for the allegations comprising the complaint, that those allegations lack merit or that the Applicant's complaint encompasses an untenable proposition of fact or law. In considering the exercise of the power to dismiss, the Tribunal is to exercise exceptional caution particularly as the application is made prior to the adducing of the Applicant's evidence. The evidence or such material as might be converted into evidence in the Applicant's case is to be taken at its highest.
Whether there is a factual basis for the Allegations
Section 19 of ADA provides that:
(1) "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 and services, or
(b) in the terms on which the other person is provided with those goods and services".
Relevantly, s.7 of ADA provides that:
(1) "A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race ..., or
(b) .....
(c) requires the aggrieved person to comply with the requirement or condition with which a substantially higher proportion of person is 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 sub-section (1)(a)...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."
In bringing the application for dismissal, the Respondent conceded that the Applicant's classifications on 28 December 2006 and 15 December 2008 would be found to be racially discriminatory in breach of s.19 ADA in line with the decision in Contreras-Ortiz because they were the result of the application of the Old Inmates of Interest to Immigration Policy. There is in the evidence a letter from the Commissioner to the ADB dated 29 June 2009 advising that "on 28 December 2006, inmate Whiteoak was regressed from a C3 to C1 classification. This decision was in line with the Department policy at the time."
The conduct found to be discriminatory in Contreras-Ortiz was the requirement under the Old Inmates of Interest to Immigration Policy that an "Unlawful Non-Citizen" could not progress to C3/Category 1 or for the issuing of a s. 6 (2) / 26 order enabling work or program activity outside a correctional centre "unless exceptional circumstances suggest otherwise". The policy provided that: "Unlawful Non-Citizens include those holding a visitor's visa, a student's visa, a study visa, a work visa and illegal immigrants. Additional visa types may place the inmate in this category" : Contreras-Ortiz at [27].
Notwithstanding the Applicant's concession as to discriminatory conduct, it is not clear to the Tribunal on the basis of the material before it whether the Applicant 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. There is evidence that at least as at 14 July 2006, the Applicant was the holder of a Permanent Resident's visa. The Applicant's visa was cancelled on 19 August 2008 and he holds a bridging visa. Additionally, the Respondent has proceeded upon the basis that the Applicant was a Lawful Non-Citizen for the purposes of its submissions on the operation of the Commissioner's Instruction.
If the Applicant was a "Lawful Non-Citizen" and had a permanent visa but who had not been naturalised, the Old Inmates of Interest to Immigration policy provided that such an inmate "may be considered for the issue of a s. 6(2)/26 order enabling work or program activity outside the correctional centre. Such inmates may progress to C3/Cat 1 security level. Recent advice from the DIMA should be included with documentation from the Council to the Commissioner in the case of serious offenders and public interest inmates or with documentation to the Directors' Committee in the case of all other inmates".Contreras-Ortiz at [25]. Lawful Non-Citizens were not subject to any "exceptional circumstances" requirement under the Old Inmates of Interest to Immigration policy.
No ultimate finding can be made as to the Applicant's status for the purposes of the operation of the Old Inmates of Interest to Immigration policy in the absence of further evidence nor should any finding be made without hearing from the parties. 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.
Turning to the 2009 and 2010 classifications, in order to succeed in his claim for direct discrimination under s.19 ADA, the Applicant will, in general terms, need to establish that, in the course of providing a service, the Respondent treated the Applicant less favourably than, in the same circumstances or circumstances which were not materially different, the Respondent treated or would treat a person of a different race and that such treatment was on the grounds of his race. In other words, adopting the test in Richard at [118], if there is differential treatment of the Applicant on the grounds of his United Kingdom citizenship this would amount to direct discrimination on the grounds of race under s.7(1)(a) of the ADA.
The Tribunal in its decision in Contreras-Ortiz at [86-131] exhaustively considered the question of whether the Respondent's functions relating to classification of inmates and the provision of work and local leave permits under ss.6 and 26 of C(AS) Act constituted "services" within the meaning of ss.4 and 19 of the ADA. See also Richard at [79].
As in Richard at [80], the Respondent in this matter did not seek to argue either that the Tribunal's decision in Contreras-Ortiz was wrong or that the Respondent did not provide services falling within ss.4 and 19 of the ADA. As was the case in Richard at [81] the Tribunal finds that its reasoning in Contreras-Ortiz on the issue of the provision of services is entirely applicable having regard to the facts of the present matter and should be adopted. The Respondent's functions relating to classification of inmates and the provision of work and local leave permits under ss.6 and 26 of C(AS) Act are "services" within the meaning of s.4 of the ADA. There is no issue that the 2009 and 2010 classifications were made and accordingly, it is appropriate to conclude that the Respondent did provide those services within s.19 of the ADA.
The definition of "race" in s.4(1) of the ADA includes "nationality". The Tribunal has adopted the approach of treating the terms "citizenship" and "nationality" as synonymous: see Sydney University Post-Graduate Representative Association v. Minister for Transport Services [2006] NSW ADT 83 at [62] and [63], Contreras-Ortiz at [66] and Richard at [118]. Accordingly the Applicant's citizenship of the United Kingdom is an aspect of race for the purposes of ss. 7 and 19 of the ADA.
The appropriate test for direct discrimination was considered in Commissioner of Corrective Services v. Aldridge [2000] NSW ADTAP 5 at [41] ff. The Appeal Panel confirmed there to be two key components of a successful allegation of direct discrimination; the first being differential treatment and the second causation. Differential treatment is to be considered first and if there is no differential treatment then it is unnecessary to consider causation: see Herber v. Glen Henney & Son Pty Limited (No 2) [2007] NSWADT 230 at [24-25].
On a review of the authorities concerning what constitutes differential treatment, the Appeal panel in Aldridge at [44] found that the appropriate question to be asked was; "Did the [Respondent], on the ground of race..., treat [the Applicant] less favourably than [it] treated or would treat [a person of a different race] in the same circumstances, or in circumstances which were not materially different?"
As to causation, what constitutes "on the grounds of" involves a consideration of why the aggrieved person was treated as they were: See Purvis v. State of New South Wales [2003] HCA 62; (2003) 217 CLR 92. The focus is on the "true basis", the "genuine basis" (per Gleeson CJ at 102), or the "real reason" (per McHugh & Kirby JJ at 144) for the treatment.
In Nicholl & Nicholls v. Director General, Department of Education & Training (No 2) [2009] NSWADTAP 20, the Appeal Panel at [37] concluded that; "As for complaints of discrimination...[the] reason must have been a reason which, alone or in combination with other reasons, was the true basis for the treatment..."
Where one of the reasons for an act done for two or more reasons consists of unlawful discrimination under the ADA, whether or not it is the dominant or substantial reason for doing the act, then for the purposes of the ADA the act is taken to be done for that reason: see s.4A ADA.
The Applicant has filed and served no evidence. In addition to the President's Report and the correspondence from the Applicant to which the Tribunal has previously referred, the President's Bundle contains correspondence from the Department of Immigration and Citizenship, Commissioner's Instruction No2/2009, Chapter 18 of the OPM, correspondence between SORC and the Applicant and memoranda from SORC. The Tribunal has had regard to this material as well as the evidence filed on behalf of the Respondent.
There is evidence that the 2009 and 2010 classification decisions in respect of the Applicant were based at least in part on the fact that the Applicant has not completed relevant sex offender treatment and accordingly his security risk of re-offending did not permit a different classification in line with s.18.1.9 of Chapter 18 of OPM referred to above. In his letter to the President of the ADB dated 12 April 2010 the Commissioner explained:
"This decision was based on Mr Whiteoak not having recently completed [CUBIT] ... and the delegate's opinion that Mr Whiteoak presents with a moderate to high risk of sexually re-offending. An offender who poses such a risk is unsuitable for the environment and level of supervision consistent with a C2 or C3 classification.
Once Mr Whiteoak completes CUBIT his classification and placement will be reconsidered.
The decision for Mr Whiteoak to remain as a C1 notwithstanding the change in the policy in February 2009 is unrelated to his race or visa status."
There is also contained in the evidence copies of correspondence from SORC to the Applicant dated 14 December 2009 and 23 April 2010 notifying him of the decisions that his security classification remained C1. In the first letter SORC states:
"The Council encourages you to re-apply for and successfully complete the CUBIT program."
In the second letter SORC stated:
"The Council recommends that you successfully complete the CUBIT program before further progression in your security classification is considered."
There is clear evidence that non-completion of the CUBIT program by the Applicant was at least one factor in the Respondent's decision concerning classification in the 2009 and 2010 classifications.
The Applicant, on the other hand, submits that other evidence gives rise to real factual questions which should be tested at full hearing. The Applicant refers to the "Pre-release Report" dated 23 July 2009 apparently several months after the Contreras-Ortiz policy had been removed upon the Commissioner's Instruction. Mr Benjamin Neville, Acting Unit Leader of the Junee District Office of the Probation and Parole Service prepared a report recommending against release.
"It is noted that the applicant had undertaken supervised pre release day leave prior to his classification being regressed in 2006 in light of his, at the time, undetermined status with the Department of Immigration. Mr Whiteoak has not, and is unlikely to achieve such a classification with respect to his removal from Australia upon his release from custody."
Similarly, the Applicant makes reference to the "Pre-release Report" dated 13 July 2010 prepared by Ms Michelle Jordan, District Manager of the Long Bay Parole Unit of the Probation and Parole Service which recommended against release. This report was prepared more than a year after the introduction of the Commissioner's Instruction. Under the heading "CORRECTIONAL CENTRE HISTORY", subheading "Participation in Pre-Release Leave Programs", Mr Neville observed:
"Given that Mr Whiteoak is subject to deportation on release from custody, he is unlikely to be able to participate in pre-release leave programs whilst in custody."
The evidence to which the Tribunal has been referred by the parties is relevant to the issue of causation, namely whether the Applicant's treatment was on the grounds of race. However, prior to considering causation, it is necessary to determine whether the Applicant has been subject to differential treatment: see Herber above.
The Respondent has submitted that there is no evidence of differential treatment. In order to consider that question, it is necessary to identify and consider the circumstances of the comparator and whether there is evidence to suggest that differential treatment has occurred. The Respondent has submitted that in order to establish a breach of s.19 ADA the Applicant would accordingly need to prove that his treatment upon classification was less favourable than an Australian inmate with a similar history of sexual offending, high risk recidivism and who displayed a reluctance to accept therapeutic treatment. The comparator issue was not otherwise explored in the Application.
In Purvis the majority of the High Court, when considering the language of s.5 (1) of the Disability and Discrimination Act 1992 (Cth), which is in similar terms to that of s. 7(1)(a) of the ADA, held that "all the objective features which surround the actual intended treatment" of the aggrieved person are to be taken into account: in particular see [224] - [225]. In Contreras-Ortiz at [76] the Tribunal found that in applying Purvis "it is not possible to postulate a comparison of the circumstances of the treatment of the Applicant with the "same circumstances" in which an Australian citizen would be treated". This was because Australian citizens in detention cannot be persons of interest to Immigration, and not vulnerable to exclusion or deportation under the Migration Act 1958 (Cth) at the end of their imprisonment.
Weighing all of these factors, the Tribunal finds that it is in the interests of justice not to dismiss the proceedings provided the Applicant proceed to file and serve Points of Claim within twenty eight days to avoid further prejudice and delay. Should he not do so, having regard to its findings as to the Applicant's unwillingness or inability to co-operate with the Tribunal referred to above, the Tribunal finds that the proceedings should be dismissed for want of prosecution. The Respondent having not succeeded in its primary application for dismissal of the proceedings will be in no worse position from a cost perspective should such orders be made. Further default by the Applicant would see an end to the matter without any additional appearances being necessary. The period of twenty eight days would appear to be reasonable given the history of the matter, the fact that the Applicant has been approved for a limited grant of legal aid and the fact that the Respondent has already produced documents in answer to the Summons.
Orders
The Tribunal orders:
1. The complaint be amended pursuant to s. 103 of the Anti-Discrimination Act, 1977 to include as grounds of complaint the classification decisions made by the Respondent on 4 December 2009 and 15 April 2010.
2. The Respondent's application under s.102 of the Anti-Discrimination Act, 1977 read with s.92(1)(a)(i) and (ii) is dismissed.
3. The Applicant is to file and serve Points of Claim and any evidence within 28 days from the date of this Order.
4. In default of compliance by the Applicant with Order 3 the complaint be dismissed in whole pursuant to s.102 of the Anti-Discrimination Act, 1977 read with s.92(1)(b).
5. On compliance with Order 3 the Registrar is requested to list the proceedings for a directions hearing on a date to be notified to the parties.
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Decision last updated: 06 July 2012
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