Carlos Contreras-Ortiz v The Commissioner, Department of Corrective Services [2009] NSWADT 12 (20 January 2009)

Last Updated: 22 January 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Carlos Contreras-Ortiz v The Commissioner, Department of Corrective Services [2009] NSWADT 12


DIVISION:
EQUAL OPPORTUNITIES DIVISION

PARTIES:
APPLICANT
Carlos Contreras-Ortiz

RESPONDENT
Commissioner, Department of Corrective Services



FILE NUMBERS:
071077

HEARING DATES:
On the papers

SUBMISSIONS CLOSED:
9 December 2008



DATE OF DECISION:
20 January 2009

BEFORE:
Pritchard S - Judicial MemberHiffernan N - Non-Judicial MemberMonaghan-Nagle L - Non-Judicial Member





LEGISLATION CITED:
Anti-Discrimination Act 1977
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Administration of Sentences) Regulation 2008 (NSW)

CASES CITED:
Tallong Park Association Inc v Sutherland: Sutherland v Tallong Park Association Inc [2007] NSWADTAP 19
Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308

TEXTS CITED:


APPLICATION:
Race Discrimination – Goods and Services

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
C Lenehan, barrister
RESPONDENT
E Brus, barrister


ORDERS:
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 programmes involving work or employment outside a correctional centre
(ii) considering whether those inmates should be permitted to participate in development programs, including development programmes 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) authorizing, instructing or permitting their servants or agents to engage in the conduct referred to in (i) or (ii)
2. Within fourteen days of these orders, the first respondent consider afresh (or direct that officers or employees of the Department consider afresh) the exercise of the powers of 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 the applicant in accordance with the provisions of the AD Act.


Reasons for Decision:

REASONS FOR DECISION

Orders

1 In reasons published on 19 November 2008, we held that the applicant’s complaint of direct race discrimination in contravention of section 19(a) and (b) of the Anti-Discrimination Act 1977 (NSW) was substantiated, and dismissed the complaint of indirect race discrimination: Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308. We ordered the parties to file submissions as to the appropriate form of orders in relation to remedies in light of the Tribunal’s reasons and conclusions.

2 Subsequently, the applicant filed submissions in relation to the following forms of relief:

(a) an order that the respondents publish a written apology in respect of the subject matter of the proceedings;

(b) an order enjoining the respondents from continuing or repeating the contraventions of the AD Act; and

(c) an order that the first respondent, to redress the loss and damage caused to the applicant, consider afresh (or direct that officers or employees of the Department consider afresh) the exercise of the powers of 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 the applicant in accordance with the provisions of the AD Act.

3 The respondents subsequently filed submissions in response to the applicant’s submissions on remedies.

Apology

4 The applicant seeks an apology by letter addressed to him and signed by the first respondent, as well as published in each of The Australian, The Sydney Morning Herald and The Daily Telegraph newspapers, on the front page at the URL http://www.dcs.nsw.gov.au and in the next annual report of the Department of Corrective Services. The applicant contends that it is important that persons such as the first respondent who holds an important public office, and entities such as the second respondent which is responsible for the government of this State, publicly acknowledge and apologise for conduct which contravenes the law. He submits that such orders are particularly appropriate in the present case in light of the effects of the unlawful conduct upon him.

5 There is no issue between the parties as to the power of the Tribunal, conferred by section 108(2)(d) of the AD Act, to order the publication of an apology or retraction (or both) in respect of the matter the subject of a complaint. Nor do the respondents seek to challenge the jurisprudence of the Tribunal that an apology may be ordered to fulfil a legal requirement rather than as a statement of genuinely held feelings: Tallong Park Association Inc v Sutherland: Sutherland v Tallong Park Association Inc [2007] NSWADTAP 19.

6 However, the respondents contend that an apology would not be an appropriate remedy in the present case, and that the unlawful conduct would be properly addressed by a change to the respondents’ policy. In this regard, the respondents note that they have "commenced an amendment process to the existing policy regarding unlawful non-citizen inmates ... [which] will eliminate the contraventions of the AD Act identified in the Tribunal’s decision". In particular, there will no longer be a "blanket policy" banning all unlawful non-citizens from classification progression, and the applicant will be considered for progression to C3 classification by the Pre-Release Leave Committee.

7 We do not consider that orders in relation to the publication of an apology are appropriate in the circumstances of the present case. This case can be distinguished from Tallong Park Association Inc v Sutherland; Sutherland v Tallong Park Association Inc [2007] NSWADTAP 19 in which the Appeal Panel observed that the relationship between the applicants and respondent had not been a "harmonious one" and that an apology would "hopefully put an end to that adversarial relationship and enable the parties to relate to one another more positively in the future." Such a description is not apt to describe the instant relationship between an inmate detained in a correctional centre subsequent to conviction, and the Commissioner of the Department of Corrective Services.

8 In particular, we do not consider that an apology is warranted in the instant case in circumstances in which there is no suggestion that a previously adversarial relationship amongst persons living at the same residential estate might be restored to a state of harmony (cf Tallong Park), or that that the respondents’ policy, whilst unlawful, was motivated by any malice or hostility towards the applicant personally. In this regard, as we noted in relation to the statistical material tendered by the applicant in support of his indirect discrimination claim, whilst such material did not permit any particularly reliable conclusions to be drawn, we did not consider that the statistical material advanced the applicant’s case in relation to the unreasonableness of the policy, rather that it tended to suggest a greater opportunity to escape from custody when the prevailing security conditions are lower.

Order enjoining the respondents from continuing or repeating the contraventions of the AD Act

9 Next, the applicant seeks an order, pursuant to section 108(2)(b) of the AD Act, that the respondents be enjoined from:

(i) discrimination against inmates on the ground of their race by refusing to provide the following services:

(a) providing development programs, including development programmes involving work or employment outside a correctional centre;

(b) considering whether those inmates should be permitted to participate in development programs, including development programmes involving work or employment outside a correctional centre;

(c) finding work or employment for those inmates, including work or employment outside a correctional centre;

(d) considering whether to find work or employment for those inmates, including work or employment outside a correctional centre;

(e) varying the classification of inmates for the purposes of the provision of appropriate development programs;

(f) considering whether the classification of inmates should be varied for the purposes of the provision of appropriate development programs;

(g) considering exercising the powers of 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;

(ii) discriminating against inmates on the ground of their race in the terms on which the services referred to in (i) are provided; and

(iii) authorizing, instructing or permitting their servants or agents to engage in the conduct referred to in (i) or (ii).

10 In our earlier decision, [2008] NSWADT 308, we found that the respondents had discriminated against the applicant on the ground of his race by refusing to provide the services specified in (i)(a) to (g) above. Further, the Tribunal may make an order of general application affecting persons other than the complainant if the Tribunal, having regard to the circumstances of the case, considers that such an extension is appropriate: section 108(3) of the AD Act. We consider such an extension to be appropriate in the circumstances of this case. In any event, we do not understand there to be any issue between the parties as to the form of order pursuant to section 108(2)(b) proposed by the applicant. The respondents have informed the Tribunal in their written submissions that they have "commenced an amendment process to the existing policy regarding unlawful non-citizen inmates .... [which] will eliminate the contraventions of the AD Act identified in the Tribunal’s decision", and that there will no longer be a "blanket policy" banning all unlawful non-citizens from classification progression.

11 Accordingly, we are satisfied that we should make an order enjoining the respondents from continuing or repeating the contraventions of the AD Act in the form proposed by the applicant.

First Respondent consider afresh exercise of powers or functions

12 Finally, the applicant seeks an order that the first respondent consider afresh (or direct that officers or employees of the Department consider afresh) the exercise of the powers of functions conferred by ss6 and/or 26 of the Crimes (Administration of Sentences) Act 1999 and/or clause 22 of the Crimes (Administration of Sentences) Regulation 2008 in relation to the applicant in accordance with the provisions of the AD Act.

13 Power to make such an order is conferred by section 108(2)(c) of the AD Act, which provides in part that the Tribunal may "order the respondent to perform may reasonable act or course of conduct to redress any loss or damage suffered by the complainant".

14 Again, we do not understand there to be any issue between the parties that the Tribunal should make such an order in light of the finding of direct discrimination. There is, however, an issue as to the time period for compliance with such order, the applicant contending that a 14 day period for compliance should be ordered, and the respondents expressing a willingness to undertake to reconsider the applicant’s classification in accordance with the amended policy within 28 days of the Tribunal’s final orders.

15 In all the circumstances, we consider that a 14 day period is appropriate for compliance is appropriate. We accept, as contended by the respondents, that the applicant’s submissions proceed on an assumption that he will succeed in his re-classification application, and that there was no evidence before the Tribunal as to the type of work which the applicant might perform on a work release program, as to the availability of such work, and as to the on-going or seasonal nature of such work. However, the evidence before the Tribunal established that the applicant was heading towards a C3 classification. Most significantly, his non-parole period finishes on 27 April 2009, after which time he may be deported. He is yet to have his application for re-classification determined in a manner that does not contravene the AD Act. In our view, he ought to have such a determination and, if successful, the opportunity to apply to participate in development programs involving work or employment outside a correctional centre prior to his deportation.

Orders

16 Accordingly, we make the following orders:

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 programmes involving work or employment outside a correctional centre;

(ii) considering whether those inmates should be permitted to participate in development programs, including development programmes 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) authorizing, instructing or permitting their servants or agents to engage in the conduct referred to in (i) or (ii)

2. Within fourteen days of these orders, the first respondent consider afresh (or direct that officers or employees of the Department consider afresh) the exercise of the powers of 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 the applicant in accordance with the provisions of the AD Act.