Commissioner of Corrective Services v Dezfouli [2008] VCAT 845 | Case summary

REASONS FOR DECISION Introduction 1 This is an appeal by the Commissioner for Corrective Services (hereafter 'the Department') against a decision of the Tribunal. The Tribunal determined in favour of the Respondent to the appeal, Mr Saeed Dezfouli, two preliminary questions relating to a complaint that Mr Dezfouli had made under the Anti-Discrimination Act 1977 ('the AD Act'). 2 Mr Dezfouli is both a 'forensic patient' and an 'inmate' kept in the custody of the Department at Long Bay hospital. This institution is both a hospital and a prison, where inmates who are mentally ill are held. Some years ago, Mr Dezfouli was found not guilty of various offences on grounds of mental illness. 3 On 27 April 2007, Mr Dezfouli lodged a claim under the AD Act with the President of the Anti-Discrimination Board ('the President'), alleging that a correctional officer employed by the Department had sexually harassed him by touching him intimately between the legs in the course of a 'strip search' of his body. According to Mr Dezfouli's account of the matter, the reason for the search was a suspicion by the officers concerned, which he claimed to be unfounded, that he had been smoking in his cell. He later alleged that as a result of his complaining about this incident, officers employed by the Department moved him from 'C' Ward in Long Bay hospital, where he had access to education and other privileges, to 'D' Ward, a ward with more limited privileges for inmates. 4 By a letter dated 23 January 2008, the President referred Mr Dezfouli's complaint of 'sexual harassment in the provision of goods and services' under sections 22A, 22F, 52 and 53 of the AD Act to the Tribunal. The respondents to the complaint were the Department and the correctional officer alleged by Mr Dezfouli to have sexually harassed him. 5 At a case conference on 20 February 2008, the Tribunal directed that the matter be listed for a half-day hearing to determine two preliminary issues. These were (a) whether or not the subject matter of Mr Dezfouli's complaint related to the provision of one or more 'services' as defined in the AD Act and (b) whether or not the complaint should be amended under section 103 of the AD Act by the addition of an allegation of victimisation under section 50. 6 Following a hearing on 9 April 2008, the Tribunal delivered its decision on 21 July 2008 (Dezfouli v Department of Corrective Services & anor [2008] NSWADT 198). The orders that it made included the following:- 1. The subject matter of Mr Dezfouli's complaints relates to the provision of 'services' within the Anti-Discrimination Act . 2. Leave is granted for the complaint referred by the President to be amended to include allegations of victimisation. 7 On 12 August 2008, the Department appealed against this decision. It put forward two grounds of appeal, as follows:- 1. The Tribunal erred in law in that it found that when correctional officers employed in a correctional centre conduct a strip search of a person who is a 'forensic patient' as defined in section 3(1) of the Mental Health (Criminal Procedure) Act 1990 and an 'inmate' as defined in section 3(1) of the Crimes (Administration of Sentences) Act 1999 they are providing a 'service' within the meaning of section 22F of the Anti-Discrimination Act 1977 to that person. 2. The Tribunal erred in law in that it failed to answer a relevant question, namely whether the exercise of the power conferred on the Tribunal by section 103 of the Anti-Discrimination Act 1977 is subject to a condition precedent, namely that there be a 'complaint' that is within the Tribunal's jurisdiction and that there be 'proceedings' with respect to that complaint. Provisions governing this appeal 8 The provisions of the Administrative Decisions Tribunal Act 1997 ('the ADT Act') that are relevant to this appeal are subsections (1), (2) and (2A) of section 113 and section 114. They are as follows:- 113 Right to appeal against appealable decisions of the Tribunal (1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel. (2) An appeal under this Part: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision. (2A) Despite subsections (1) and (2), an appeal does not lie to an Appeal Panel of the Tribunal against an interlocutory decision of the Tribunal except by leave of the Tribunal. 114 Appeals on questions of law (1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision. (2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following: (a) an order affirming or setting aside the decision of the Tribunal (as originally constituted), (b) an order remitting the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel, (c) an order made in substitution for an order made by the Tribunal. The question of leave to appeal 9 When commencing these appeal proceedings, the Department filed an Application for Leave to Appeal from an Interlocutory Decision as well as a Notice of Appeal. In the former document, it outlined its grounds for seeking leave to appeal. These were (1) that the appeal raised important questions with respect to the jurisdiction of the Tribunal and the interrelationship of provisions of the AD Act, the Crimes (Administration of Sentences) Act 1999 and the Crimes (Administration of Sentences) Regulation 2001; and (2) that the Tribunal's decision had significant flow-on implications as it purported to subject to review by the Tribunal the performance of the Department's security and custodial functions relating to the searching of inmates and the maintenance of good order and security within correctional centres. 10 This Application for Leave to Appeal was filed on the basis that the Tribunal's decision was an interlocutory one and that leave to appeal was therefore required under section 113(2A) of the ADT Act. 11 In the course of the hearing, we determined that leave to appeal should be granted. Our grounds for this ruling were (a) those outlined by the Department in its Application for Leave to Appeal; (b) the fact that, if all the grounds argued by it in the appeal were accepted, Mr Dezfouli would have had no claim against the Department at all; and (c) the opinion that we had formed that the appeal had a reasonable chance of succeeding, at least in part. Legislation referred to in the Tribunal's decision 12 So far as is relevant to this appeal, the provisions of the AD Act to which the Tribunal referred in its decision are sections 4, 22A, 22F, 50 and 103. 13 In section 4, 'services' is defined as follows, 'except in so far as the context or subject-matter otherwise indicates or requires':- services includes: (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. Sections 22A and 22F state:- 14 Section 22A states:- For the purposes of this Part, a person sexually harasses another person if: the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.' 15 Section 22F states:- It is unlawful for a person to sexually harass another person in the course of: (a) receiving, or seeking to receive, goods or services from that other person, or (b) providing, or offering to provide, goods or services to that other person. 16 Section 50 defines unlawful 'victimisation' as follows: (1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. 17 Section 103 states:- (1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint. (2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President. (3) An amendment may be made subject to such conditions as the Tribunal thinks fit. 18 The Tribunal referred also to section 2A of the Crimes (Administration of Sentences) Act 1999. This states:- (1) This Act has the following objects: (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, (b) to ensure that other offenders are kept under supervision in a safe, secure and humane manner, (c) to ensure that the safety of persons having the custody or supervision of offenders is not endangered, (d) to provide for the rehabilitation of offenders with a view to their reintegration into the general community. (2) In the pursuit of these objects, due regard must be had to the interests of victims of the offences committed by offenders. (3) Nothing in this section gives rise to any civil cause of action or can be taken into account in any civil proceedings. 19 In its decision at [25], the Tribunal said of the Crimes (Administration of Sentences) Regulation 2001 that it includes regulations 'as to how inmates are to be housed (Regulation 36), to be given health care (Regulation 250 -256), to be fed (Regulation 50-52, and 253), and to be afforded the opportunity for exercise and to make complaints (for example, Regulation 51 as to complaints about food in gaol)'. 20 In its decision at [26], the Tribunal said of the Mental Health (Criminal Procedure) Act 1990 that it 'provides for additional requirements for forensic patients: For example, under Section 41 of that Act, the Mental Health Review Tribunal reviews forensic inmates and can make recommendations as to the person's "care, detention or treatment"'. The significance of section 22J of the AD Act 21 Neither in the President's letter referring this matter to the Tribunal, at the Tribunal hearing on 9 April 2008 nor at the hearing of the appeal on 7 November 2008 was any reference made to section 22J of the AD Act. It has subsequently come to our notice. It is as follows:- 22J State laws and programs (1) It is unlawful for a person to sexually harass another person: (a) in the course of performing any function under a State law or for the purposes of a State program, or (b) in the course of carrying out any other responsibility for the administration of a State law or the conduct of a State program. (2) In this section: State law means: (a) an Act, a statutory rule, or a determination made under or pursuant to an Act, or (b) an order or award made under or pursuant to such a law. State program means a program conducted by or on behalf of the State Government. 22 In our opinion, there are good grounds for believing that Mr Dezfouli's allegation that he was sexually harassed, within the meaning of section 22A, by a correctional officer in the course of a strip search would, if established, amount to unlawful sexual harassment under section 22J(1)(a). It would be sexual harassment carried out by a person 'in the course of performing' a 'function under State law'. 23 In forming this opinion, we take account of the fact that it was common ground that Mr Dezfouli was, as the Department claimed in the Notice of Appeal, an 'inmate' as defined in section 3(1) of the Crimes (Administration of Sentences) Act 1999. 24 We take account also of two further statutory provisions. First, the definition of the term 'statutory rule' in section 21(1) of the Interpretation Act 1987 includes regulations. Secondly, we consider - and it was an integral part of the submissions of Ms Anderson, appearing for the Department in this appeal - that any strip search carried out by a correctional officer on Mr Dezfouli during 2007 would fall under clause 46 of the Crimes (Administration of Sentences) Regulation 2001. This clause provided:- (1) A correctional officer may search an inmate at such times as the general manager directs and at such other times as the correctional officer considers appropriate. (2) Except in the case of an emergency, an inmate must not be searched by or in the presence of a person of the opposite sex. (3) The searching of an inmate must be conducted with due regard to dignity and self-respect and in as seemly a manner as is consistent with the conduct of an effective search. (4) An inmate must not resist or impede the conduct of such a search. 25 As Ms Anderson pointed out, the Crimes (Administration of Sentences) Regulation 2001 has been repealed and replaced by the Crimes (Administration of Sentences) Regulation 2008, which came into force on 1 September 2008. Clause 43 of the new regulation is similar to clause 46 of the regulation of 2001. 26 The applicability of section 22J to Mr Dezfouli's allegation of sexual harassment has not been the subject of submissions by any of the parties to these proceedings. In these unusual circumstances, our opinion is that the case should be remitted to the Tribunal (as may be done under section 114 (2)(b) of the ADT Act), with a direction that the Tribunal should give consideration to permitting Mr Dezfouli to put forward his complaint of sexual harassment as a complaint under section 22J (irrespective of whether its character as a complaint under section 22F is retained). 27 A step of this nature is not an amendment of Mr Dezfouli's existing complaint under section 103. It is no more than a 'characterisation' of it in a manner differing from the President's characterisation. An order under section 103 is not required: see West & Ors v Commissioner of Police, NSW Police [2007] NSWADT 240 at [5 - 11]; Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP 24 at [21]. 28 We have considered whether, in the light of these conclusions, it is necessary for us to deal with the principal question raised in this appeal, namely, whether the Tribunal's decision regarding 'services' is sustainable. If Mr Dezfouli's complaint of sexual harassment does indeed fall within section 22J, resolution of the question whether it also falls under section 22F would appear superfluous. But the matter was argued at some length before us and our task under section 114 of the ADT Act is, as stated in subsection (1), 'to determine the appeal'. We accordingly address this question in the ensuing parts of these reasons. The limits of our powers to review the Tribunal's decision on 'services' 29 In dealing with the Tribunal's decision regarding 'services', it is important for us, as an Appeal Panel, to take due account of sections 113(2) and 114 of the ADT Act, which are set out above at [8]. 30 Leave has not been sought under section 113(2) for this appeal to extend to the merits. Accordingly, our powers are confined to determining such questions of law as are raised in the appeal and, having done so, making such orders under section 114 as we consider appropriate in light of our decision. 31 These considerations are significant because it is well established that identification of the relevant 'service' allegedly provided in a case brought under provisions such as section 22F in the AD Act or in anti-discrimination legislation elsewhere in Australia is a determination of fact. The High Court made this clear in the course of resolving a number of questions under the Equal Opportunity Act 1984 (Vic): see Waters v Public Transport Corporation (1991) 173 CLR 349 per Mason CJ and Gaudron J at 361, Dawson and Toohey JJ at 394 and McHugh J at 404. The Tribunal referred to this principle in its decision at [17]. 32 In IW v City of Perth (1997) 191 CLR 1 at 57-60, a case dealing with the meaning of 'services' in the Equal Opportunity Act 1984 (WA), Kirby J listed a number of matters which he described as 'not in issue'. One of these was the role of an appellate court when hearing an appeal, limited to questions of law, against a determination by a tribunal as to what are relevant 'services' under this Act. His Honour said (footnotes are omitted):- The appeal from the decision of the Tribunal being limited to questions of law, it is impermissible to determine or re-determine questions of fact or to substitute a view of the facts for that reached by the Tribunal. A possible reason for withholding the facility of a general appeal from bodies such as the Tribunal to a court is a Parliamentary conclusion that a specialist body, constituted as the Tribunal is, will be more likely to be knowledgeable about and sympathetic to the objectives of legislation such as the Act than courts have proved to be. The giving of meaning to common words of everyday use (for example "service") does not ordinarily raise a question of law. Appeals so confined are severely constrained by established legal doctrine. 33 One of the authorities cited by Kirby J here was a much-quoted judgment dealing with the distinction between questions of law and questions of law, namely, the judgment of Mason J in Hope v Bathurst City Council (1980) 144 CLR 1. At 7-8, Mason J said:- Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. One example is the judgment of Fullagar J in Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51, where his Honour quoted the comment of Lord Parker of Waddington in Farmer v Cotton's Trustees [1915] AC 922 at 932, which was adopted by Latham CJ in Federal Commissioner of Taxation v Miller (1946) 73 CLR 93 at 97 that where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only. Fullagar J then said: "… this seems to me to be the only reasonable view. The distinction between the two classes of question is, I think greatly simplified, if we bear in mind the distinction, so clearly drawn by Wigmore, between the factum probandum (the ultimate fact in issue) and facta probantia (the facts adduced to prove or disprove that ultimate fact). The 'facts' referred to by Lord Parker … are the facta probantia. Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law." However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v Cozens [1972] 2 All ER 1297 was just such a case. The only question raised was whether the appellant's behaviour was "insulting". As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact. The judgment of Kitto J in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 is illuminating. Kitto J observed that the question whether certain operations answered the description "mining operations upon a mining property" within the meaning of s 122 of the Income Tax Assessment Act 1936 as amended was a mixed question of law and fact (p 511). He went on to explain why this was so: "First it is necessary to decide as a matter of law whether the Act uses the expressions 'mining operations' and 'mining property' in any other sense than that which they have in ordinary speech." Having answered this question in the negative, he noted that the "common understanding of the words has … to be determined" as "a question of fact". He continued (at 512): "The next question must be whether the material before the court reasonably admits of different conclusions as to whether the appellant's operations fall within the ordinary meaning of the words as so determined; and that is a question of law: ibid; see also per Isaacs and Rich JJ in Australian State Quarries Ltd v Federal Commissioner of Taxation (1923) 33 CLR 416 at 419. If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact: see per Williams J in the Broken Hill South Case (1941) 65 CLR at 160." 34 In IW at 71, Kirby J spelt out further the implications of these principles (footnotes are omitted):- Because, under the Act, appeals from the Tribunal lie only on a question of law, the respondents had to say that the view of the word "services" adopted below was not simply unduly broad. It was not open. This was not a matter upon which minds might reasonably differ, even perversely in the view of another. It was a matter upon which the "only reasonable view" was that "services", in the context, had a meaning different from that ascribed to it at every level of decision-making before the case reached this Court. 35 One of the authorities cited by Kirby J here was the judgment of Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. At 156, Glass JA said:- A finding of fact in the [Workers' Compensation] Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made, Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138; 57 WN 53 at 55. 36 Toohey J in IW expressed a similar opinion on this question (at 27). Both Kirby J and Toohey J dissented from the decision of the majority in this case. But nothing said in the majority judgments contradicted or questioned their Honours' observations about the role of appellate courts or tribunals in this specific context. 37 Accordingly, in this appeal we view our tasks as being to consider (a) whether the Tribunal, in the decision under appeal, misstated the legal criteria for determining whether the acts alleged by Mr Dezfouli to have amounted to sexual harassment occurred in the course of the provision of 'services' to him by officers employed by the Commissioner and (b) whether the Tribunal, although purporting to apply the correct criteria, reached a conclusion that could not reasonably be reached and was therefore 'not open' to it. 38 We will now outline the Tribunal's judgment, adding relevant material from case law as appropriate. The meaning of 'services' 39 In its decision at [18 -19], the Tribunal quoted a number of passages from the High Court's judgments in Waters and IW establishing that because the anti-discrimination legislation is remedial legislation, being designed to protect basic human rights and dignity, the term 'services' should be given a wide meaning. It should be understood as including 'any act of helpful activity' (this being part of the definition in the Macquarie Dictionary) or as 'conduct tending to the welfare or advantage of another' (this being part of the definition in the Oxford English Dictionary). 40 At [20], the Tribunal quoted from the judgment of Barr J in Director-General, Department of Community Services and Anor [2003] NSWSC 1241. After restating the principle that 'services' should be given a wide meaning, his Honour said at [37 - 39] (this passage was not quoted by the Tribunal, but was mentioned later in its decision):- [37] In Savjani v Inland Revenue Commissioners [1981] QB 458 the Court of Appeal of England decided that the Inland Revenue was providing services to the public in carrying out a statutory duty to determine whether a taxpayer was entitled to a deduction and in disseminating and giving advice to taxpayers to enable them to claim tax relief. [38] In R v Entry Clearance Officer; ex parte Amin [1983] 2 AC 818 the House of Lords held by a majority of three to two that a clearance officer who vetoed aspiring immigrants to the United Kingdom was not providing a service within the meaning of the relevant section of the Sex Discrimination Act 1975 (UK). The officer was said instead to have been performing his duty of controlling would-be immigrants. The judgment in Savjani was explained as meaning that the Inland Revenue had two functions, a duty of collecting revenue, which was not a service, and a service of providing taxpayers with information, which was. [39] In Farah v Commissioner of Police of the Metropolis [1998] QB 65 the English Court of Appeal held that those duties of a police officer that involve assistance to or protection of the public constitute services to the public for the purposes of the Race Relations Act 1976 (UK). 41 In a passage quoted by the Tribunal at [20], Barr J said (at [41]):- … [The] fact that a person provides a service directly for the benefit of one person does not mean that that service is not also provided for anyone else. As Sully J found in Commissioner of Police v Russell , police officers may in relevant ways provide a service to the community at large as well as to individuals. 42 At [21], the Tribunal discussed the Supreme Court decision to which Barr J referred, namely, Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors [2001] NSWSC 745. Here Sully J considered three questions referred by an Appeal Panel of this Tribunal to the Supreme Court. At first instance, the Tribunal had found that Mr Russell, who was driving a stolen utility vehicle, was pursued and arrested by police officers, who then dragged him up a steep embankment, trod on him, punched him and subjected him to abusive, foul and racist language. The Tribunal had held that this constituted unlawful discrimination on the grounds of race under section 19 of the AD Act. One of the questions referred by the Appeal Panel to the Supreme Court was whether the conduct of the individual officers in the course of their pursuance and arrest of Mr Russell (who subsequently died) amounted to the provision of a 'service' within the meaning of section 19, and if so, whether such a 'service' within the section was provided by the Commissioner of Police. 43 Section 19 of the AD Act states:- 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. 44 In his judgment, Sully J referred to section 6 of the Police Service Act 1990. Under subsection (2)(a) of this section, the functions of the Police Service are said to include the provision of 'police services' for New South Wales. In subsection (3), 'police services' are defined so as to include the following:- (a) services by way of prevention and detection of crime, and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts in any other way, and (c) the provision of essential services in emergencies, and (d) any other service prescribed by the regulations. 45 In a passage quoted by the Tribunal at [21], Sully J held as follows (at [43 - 45]):- 43 It seems to me that the Police Service of New South Wales [has statutory], duties, functions and characteristics sufficient to establish it as a public authority in the sense discussed by the High Court. The Police Service of New South Wales cannot operate, relevantly, except by and through police officers who are serving members of the Service. It seems to me to follow that services provided by such serving police officers are services provided by a public authority in the sense contemplated by the Anti-Discrimination Act . 44 A correct assessment of the conduct of the individual police officers in the course of their pursuit and arrest of the late Mr Russell is in my opinion as follows: [1] The police officers who took part in the pursuit of Mr Russell were providing to the community at large services of the kind described in section 6(3)(a) and (b) of the Police Service Act. [2] The police who took part in the arrest of the late Mr Russell were also thereby providing to the community at large services of those two kinds. [3] As soon as the late Mr. Russell had been formally arrested, and had passed thereupon into police custody, the arresting police, and any police officer who had any part at all in the way in which Mr. Russell was subsequently handled; or who witnessed the way in which Mr. Russell was handled; became thereupon charged with a public duty to provide to the late Mr. Russell police services by way of the protection of his person from injury or death, and the protection of his property from damage, "whether arising from criminal acts or in any other way". [4] All of the police officers mentioned in [3] above wholly failed, on the facts as found by the Equal Opportunity Division, to provide the services which they were bound to provide to Mr. Russell pursuant to section 6(3)(b). [5] To say that what the individual police officers did, or suffered to be done, to the late Mr. Russell amounted to the provision by them to him of police services, but on a basis discriminatory in the sense contemplated by section 19(b), seems to me to be a wholly artificial perception, given the facts found by the Equal Opportunity Division. The police officers involved did not, in my opinion, provide imperfectly to the late Mr. Russell the services which they were duty bound to provide to him. They did not provide those services at all. 45 For the whole of the foregoing reasons, I would answer the referred question (ii): No; but the subsequent failure of those police officers to afford Mr Russell the protection to which he was entitled in terms of section 6(3)(b) of the Police Service Act was conduct of the kind contemplated by section 19(a) of the Anti-Discrimination Act. 46 As outlined by the Tribunal at [22], the Commissioner appealed. In his judgment, Spigelman CJ, with whom Stein JA and Davies AJA agreed, said that 'It was common ground before the Tribunal that the Police Service was a public authority [and] the police were found to provide a relevant "service" to Mr Russell' (see Commissioner of Police v The Estate of Edward John Russell & Ors [2002] NSWCA 272 at 21). 47 At [23], the Tribunal quoted the following sentence from an earlier Tribunal decision, Sydney University Postgraduate Representative Association (SUPRA) & ors v Minister for Transport Services & ors [2006] NSWADT 83 at [39]:- The reported cases demonstrate that there is no impediment to the exercise of a statutory power being characterised as a "service" for the purposes of anti-discrimination legislation. 48 The submissions put to us did not raise any challenge to these passages in the Tribunal's judgment. The circumstances in which correctional officers may provide 'services' to inmates 49 At [24 - 26], the Tribunal cited a number of provisions of the Crimes (Administration of Sentences) Act 1999 (specifically, section 2A), the Crimes (Administration of Sentences) Regulation 2001 and the Mental Health (Criminal Procedure) Act 1990 in support of the proposition that the exercise of a number of statutory functions by correctional officers within correctional centres, notably with respect to 'forensic patients' such as Mr Dezfouli, could involve the conferring of benefit on them, and could therefore constitute the provision of 'services'. At [27], it quoted the Department's Mission as being 'Managing offenders in a safe, secure and humane manner and reduce (sic) risks of re-offending', and it set out the Department's 'Guarantee of Service', in further support of this proposition. At [28 - 30], it referred to decisions on anti-discrimination legislation by the Human Rights and Equal Opportunities Commission and interstate tribunals, in which this proposition was stated and applied. 50 The principal activities by correctional officers which the Tribunal identified as constituting, at least potentially, the provision of services to inmates were providing meals, health care and facilities for sport and exercise. In the submissions made to us by the Department, this aspect of the Tribunal's reasons was conceded to be correct. 51 At [30], the Tribunal described as 'persuasive' a ruling by the Victorian Civil and Administrative Tribunal that the provision of 'promotional opportunities' within a prison employment system was a 'service' to inmates (see Alipek v GSL Custodial Services Pty Ltd & Anor [2008] VCAT 845). In the Department's submissions, this proposition was not conceded, but also was not expressly disputed. 52 Since the Tribunal's decision in these proceedings was delivered, two further Tribunal judgments have held that the provision of educational and vocational opportunities for inmates of New South Wales prisons, coupled with a system of classification under which some prisoners may have access to these opportunities, constitutes the provision of 'services' under the AD Act. These decisions, the second of which was delivered after the appeal in the present proceedings was heard, are Arnesen v Commissioner, NSW Department of Corrective Services [2008] NSWADT 294 and Contreras-Ortiz v Commissioner, NSW Department of Corrective Services [2008] NSWADT 308. 53 The Tribunal also gave extended consideration (at [31 - 32] and [43]) to recent Federal Court proceedings at first instance and on appeal brought by an inmate of a prison in Victoria under section 24(1) of the Disability Discrimination Act 1992 (Cth) ('the DDA'). This provision states:- 24(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates: (a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or (b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or (c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person. 54 The applicant in these proceedings claimed that in the provision of transport between three prisons in Victoria and in the provision of accommodation for him in one of these proceedings, the Victorian Department of Justice, being the authority having custody of prisoners under the Corrections Act 1986 (Vic), had breached section 24. He also claimed that in the provision of accommodation GSL Custodial Services Pty Ltd ('GSL'), a subcontractor engaged by Australian Correctional Facilities Pty Ltd ('ACF') pursuant to a contract with the Department, had breached section 24. It was common ground that by virtue of prior injuries to his lower back the applicant had a disability. 55 At first instance (Rainsford v Victoria [2007] FCA 1059), Sundberg J held that neither of the two respondents had provided a 'service' or made a 'facility' available to the applicant. In its judgment, the Tribunal quoted from paragraphs [77 - 79] of his Honour's judgment. But in our opinion, it is important to consider some earlier paragraphs as well. 56 At [73 - 79], Sundberg J said:- [73] Counsel for the state suggested that the touchstone for service should be whether the act involves helpful or beneficial activity: IW 191 CLR at 11 per Brennan CJ and McHugh J. I accept that this is a useful test, but in a qualified way. Most activities are helpful or beneficial to someone. That in itself does not make them services. The question must be whether the act is helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs. There is little doubt that GSL provides a service to the state: there was in evidence parts of the prison services agreement between the state and ACF and further evidence that ACF subcontracted its obligations to GSL. Were it not for the decision of the Court of Appeal in Farah v Commissioner of Police of the Metropolis [1998] QB 65, I would have thought that the state, by maintaining a prison system, provides a service to the general public. However, in Farah , where the alleged discriminator was the police, it was held that assisting and protecting members of the public is a service but that pursuing, arresting and charging criminals is not. To my mind, the pursuit of criminals is so much a part of protecting the members of the public that a distinction between them is hard to justify, but I need not pursue this. These services for the benefit of the state or the general public are not to the point. The question in this case is whether the respondents provide a service to the relevant class to which Mr Rainsford belongs, namely prisoners. [74] Counsel for Mr Rainsford accepted that not all things done by the respondents involve the provision of a service. He suggested, by way of example, that a decision to place a prisoner in a particular cell is not a service and so is not covered by the DDA. However, he did say that the provision of transport and accommodation facilities constitutes a service since they are helpful or beneficial to prisoners. He argued that if a prisoner were not provided with a cell and transport he would be left to survive in the elements and would have to walk between prisons. Even leaving aside the possibility that a prisoner may enjoy the freedom of walking away from his prison, this argument is flawed. If the respondents did not provide accommodation in the spine area, Mr Rainsford would have remained in the general body of Port Phillip Prison; looked at in this way, the "service" can hardly be said to be beneficial. Transport is more difficult. If transport between prisons had not been available, prisoners simply would not have been moved, for better or for worse. They would have missed court appearances and not had access to medical facilities and rehabilitation programs available only at other prisons; but equally they could not have been transported from court back to prison. There is therefore an element of the helpful and beneficial in the provision of transport to prisoners, but an element of the unhelpful as well. [75] Part of the error I have just referred to comes from a failure on the part of Mr Rainsford to articulate with precision what service he contends for. The importance of this exercise was stressed by the High Court in Waters v Public Transport Corporation (1991) 173 CLR 349. In that case, McHugh J said at 404-5: … the goods or services which must be identified are those goods or services which are relevant to the complainant or any person or persons whom the complainant represents. Before there can be a finding of discrimination by a person in relation to the provision of goods or services, therefore, the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination. If a person is alleged to have refused to perform services, eg, the services in question must be identified in sufficiently concrete terms to enable the Board to determine whether or not there has been a refusal to perform those services. What is a sufficiently precise identification of the service in one case may be too general in another. If the discrimination alleged was the refusal to allow impaired persons to travel on trams to St Kilda, it would be meaningless to identify the service provided as "the public transport system". If, however, the discrimination alleged was the refusal to allow impaired persons to travel on trams generally, "transportation of members of the public by trams" might identify the service with sufficient precision to enable the relevant issues to be resolved. [76] In his outline of submissions, Mr Rainsford identifies the relevant service as "prison management and control, including the control of cell accommodation and transport between prisons". In my view, such a wide identification of service is meaningless; it is, in effect, no more than "prison management and control". The two activities complained of by Mr Rainsford are, first, the transportation of prisoners between prisons and between a prison and court and, second, the accommodation of prisoners in cells within the prison system. This is the appropriate level of precision with which to identify the alleged services. So identified, I am of the view that neither constitutes a service for the purpose of the DDA. [77] At [74] I postulated what would have happened had no transport been available to prisoners. The question is entirely hypothetical since transport is an inherent part of incarceration. Prisoners on remand must attend court for their hearings. Prisoners in low-security prisons who are reclassified must be moved to higher-security prisons. The prison system simply could not function without prison transport. It is an artificial use of the word service to apply it to a fundamental integer of a system over which those affected have no or almost no control. [78] The accommodation of prisoners in cells within the prison system is similarly an inherent part of incarceration. Prisoners must be housed somewhere within the prison system and that this is so demonstrates that for a prisoner to have a cell is not a helpful or beneficial activity so far as the prisoner is concerned. In so far as there is choice in the allocation of prison cells, it is a purely administrative and prison management matter. It does not, of itself, provide prisoners with a benefit. Rather, it is better described as being "part and parcel of the exercise of a statutory duty and cannot be described as the provision of a service or services"… [79] I am conscious of the arguments made by Mr Rainsford relying on the provisions of the Corrections Act and the prison services agreement;... Attending to the welfare of prisoners is an important legal obligation placed on both respondents. This is all the more so given the vulnerabilities of prisoners who are unable to do much to control their circumstances within prisons. It is for this reason that I accept that certain facilities provided by the respondents to prisoners may constitute services for the purposes of the DDA. However, for the reasons I have identified, I do not consider either of the postulated services to fit the definition in the DDA. In addition, it is important not to focus only on the prisoner welfare purposes of the Corrections Act and the prison services agreement. The first purpose listed in the Corrections Act is "to provide for the establishment management and security of prisons and the welfare of prisoners": s 1(a). This purpose demonstrates the balancing act that prison authorities must perform. Their obligations are not just to the welfare of prisoners but also to the general public and prison staff through providing adequate security measures, to other prisoners by ensuring that prisoners do not harm one another, and to the general good governance of the prison. To suggest that transport of prisoners or cell accommodation is a service to prisoners is to ignore the fact that they are functions performed in order to comply with the sometimes competing obligations of prison management to its prisoners, its staff, the public and the good governance of the prison. 57 As the Tribunal indicated at [32], the applicant in this case appealed against Sundberg J's decision dismissing his claim. While dismissing the appeal (see Rainsford v State of Victoria [2008] FCAFC 31), the Full Court cast some doubt on his Honour's conclusion that transport and accommodation were not 'services' within the DDA. At [9], the Court said: 9 In this case it is not necessary to consider whether his Honour erred in his interpretation of the expressions "service" or "facility". This is because, if, as we think, his Honour's conclusions on the other aspects of the claim are correct, this question does not arise. We observe that, although the meaning of "service" is not simple to resolve, and the matter was not argued in depth, we see some strength in the view that the provision of transport and accommodation, even in a prison, may amount to a service or facility. 58 The Tribunal also referred (at [48 - 50]) to two earlier Tribunal decisions, both involving Mr Dezfouli, in which the definition of 'services' under the ADT Act received brief attention. These are Dezfouli v Justice Health and anor [2008] NSWADT 99 and Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 122. Both of them were concerned with applications by Mr Dezfouli for leave under section 92A for a complaint to proceed in the Tribunal after it had been declined by the President of the Anti-Discrimination Board. As one of the reasons for rejecting the application in each of these cases, the Tribunal expressed doubt as to whether the conduct alleged to constitute discrimination occurred in a context whether 'services' were being provided. It relied on Sundberg J's judgment in Rainsford and on a failure by Mr Dezfouli to comply with the requirement, stated by McHugh J in Waters in the passage quoted by Sundberg J, that the alleged services must be 'precisely defined'. 59 It is useful to mention here a further judgment by the Tribunal given after the decision under appeal was handed down. In Dezfouli v Department of Corrective Services [2008] NSWADT 277, Mr Dezfouli sought leave to proceed under section 92A in respect of a complaint, based on sections 22A and 22F, that he had been sexually harassed while participating in the 'early shower programme' at Long Bay Hospital. The Tribunal held that he had not shown a 'substantial reason' why leave should be granted. 60 In its judgment at [7], the Tribunal said: 'The "early shower programme" was put in place to provide inmates in particular circumstances the opportunity of an early shower to secure their safety and generally the order of the forensic unit the hospital.' At [16], it quoted from the decision under appeal at [48 - 50], outlining the two Tribunal decisions mentioned in the preceding paragraph. The Tribunal then said (Dezfouli v Department of Corrective Services [2008] NSWADT 277 at [17 - 18]):- 17 In this case, the "service" alleged in order to ground the jurisdictional requirement of provision of "goods and services" under the Act is the provision of an "early shower programme". As noted above, this is a programme which assists both the inmates and the correctional officers in providing a safe shower environment within the facility. 18 In my view there is nothing to show that a service in the sense of the term used in the Act was being provided to the applicant and the decision in Rainsford v The State of Victoria is pointed to in that regard by Ms Singer, both in the Federal Court and full Federal Court. Despite the Full Court's comments which were cited by Judicial Member Layton above [in the decision under appeal], it appears to me that there is real difficulty in identifying a shower schedule as a "service" within the meaning of the Act. The "early shower programme" appears to be an administrative matter rather than a "service" in the usual sense of the term. The basis of the Tribunal's determination on 'services' 61 In the decision under appeal, the Tribunal set out at [35 - 45] its specific reasons for concluding that the strip-searching of Mr Dezfouli, being the context in which the conduct claimed by him to constitute sexual harassment allegedly occurred, constituted a 'service' to him provided by the Department. In this same passage, the Tribunal also dealt with his claim that the accommodation in which he was placed after the alleged harassment was also an aspect of the 'services' that the Department provided. The latter question was not raised in this appeal. 62 At [35], the Tribunal commenced this section of its reasons by referring to the following submission by Mr Dezfouli, which he repeated in his arguments to us at the appeal hearing:- Mr Dezfouli submitted that strip searches of forensic inmates were a 'service' within the ADA because they were conducted to protect the safety of the forensic inmates and of other inmates who may be harmed if for example, as was suspected of Mr Dezfouli, the forensic inmate had matches. He said that whereas non-forensic inmates were allowed to have matches, forensic patients were not so allowed. 63 At [37 - 40], the Tribunal recorded the following conclusions: (a) that the Department was a 'public authority' for the purposes of section 4(1) of the AD Act (set out at [13] above); (b) that the Department could be liable for breaches of this Act by corrective officers; (c) that even though the 'primary service of gaol' might be to provide 'protection and criminal justice to members of the community from offenders' its actions could still be services to inmates, having regard to relevant case-law, to the Department's Mission and Guarantee of Service and to relevant legislation (notably section 2A of the Crimes (Administration of Sentences) Act 1999); (d) that having regard particularly to the 'particularly vulnerable' nature of forensic patients, such as Mr Dezfouli, and to the 'additional requirements' applying to them under the Mental Health (Criminal Procedure) Act 1990, the fact that Mr Dezfouli was an inmate did not, 'on its own, preclude all and any actions by the gaol authorities affecting him being "services" within the ADA; and (e) that strip-searching could be 'a "service" within the ADA' even if it was conducted under a statutory power. 64 At [41], the Tribunal discussed in the following terms the dicta of the High Court regarding 'services' in Waters and IW:- 41 Ms Anderson [counsel for the Department] submitted that the test of whether something is a 'service' within the ADA is whether it is done for the other person's benefit, and that because the actions of strip searching and accommodation were not done for the good of the inmate, this precluded the actions from being a 'service' to the inmate within the ADA. The Tribunal notes that one definition used for 'services' is 'assistance or a benefit given to someone': Waters v. Public Transport Corporation (1992) 173 CLR 349, per Gummow. However, the Tribunal finds that the definition of 'services' is much wider than this: see IW's Case , all judgements. For example, it includes 'the duties or work of a public servant …serving the state or the community in a particular capacity' and 'activities in which a benefit other than a good is conferred on, or effort expended on behalf of another person or a community': see IW's Case , per Gummow J. The Tribunal finds that the meaning of 'services' within the ADA is wide enough to encompass acts such as strip searches to protect the safety of inmates and others and the provision of accommodation to inmates. 65 At [42], the Tribunal outlined in the following terms the significance of the decisions in the Russell litigation:- 42 Ms Anderson referred to the case of Commissioner of Police v Russell as support for the proposition that in strip searching, the officers were not providing Mr Dezfouli with a 'service' within the ADA. However, the Tribunal notes that in Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors. [2001] NSWSC 745, Sully J accepted (and this was not the subject of the appeal) that in general, the police force was a public authority and provided services within the ADA not only to the community but also to those who were arrested by them. Although Sully J found that in Mr Russell's case, the beating and abuse he received could not be termed a 'service' to Mr Russell, he also found it was 'conduct of the kind contemplated by section 19(a) of the Anti-Discrimination Act '. Further, in the appeal, Commissioner of Police v The Estate of Edward John Russell & Ors , [2002] NSWCA 272, the Court of Appeal found that the provisions of the ADA extended to the Commissioner of Police such as to make the Commissioner of Police liable as employer' or principal' of constables acting in that capacity who are otherwise found in breach of the provisions of the ADA: ibid, paragraphs 1, 95, 98 and 101. After considering these cases, the Tribunal finds that they are not authority for concluding that strip searching and accommodation issues could not be 'services' to inmates within the ADA. 66 At [43 - 44], the Tribunal addressed the question whether, and if so according to what principles, the activities undertaken by correctional officers in a prison in the discharge of their duties should be divided into different categories when deciding whether the term 'services' could be applied to them. It said:- 43 Ms Anderson sought to distinguish some aspects of correctional life from others for the purpose of deciding if they were 'services' within the ADA. For example, she conceded that provision of food was a 'service' within the ADA, but submitted that other aspects are not services within the ADA, such as classification, were not. The Tribunal notes that there is some authority for considering each aspect of the administration of a government body to decide whether or not it is a 'service' within the ADA. For example, see the discussion of the UK cases of R v Entry Clearance Officer; Ex parte Amin, Savjani and Farah v Commissioner of Police of the Metropolis in the judgement of Brennan CJ, McHugh and Gummow JJ in IW's Case, and in Director-General, Department of Community Services v MM and Another [2003] NSWSC 1241, Barr J, at paragraphs 37-39. See also Rainsford's Case… at paragraph 79 [this paragraph is quoted at [56] above]. 44 It may be appropriate to view individual functions of a gaol to determine whether each in isolation is a 'service' within the ADA. However, the Tribunal notes that first, an approach of individually examining different aspects of gaol life to determine whether or not each is within the ambit of the ADA could lead to an unnecessarily artificial construction. Secondly, Australian case law has defined 'services' within the anti-discrimination legislation widely: see for example IW's Case. Thirdly, the Tribunal notes that if the legislature had intended for some aspects of gaol administration such as classification to be excluded for the operation of the ADA, it could have included them with the other exceptions… 67 At [45], the Tribunal stated its conclusion on 'services' in the following terms:- 45 After considering all the above, including the wide definition of 'services' within the ADA and the legislative framework regulating the life of detainees in NSW, the Tribunal finds that Mr Dezfouli's claims as to a strip search and the change in his gaol accommodation relate to 'services' within the ADA. The parties' submissions in the appeal 68 At the hearing of the appeal, Ms Anderson (appearing for the Department) and Mr Dezfouli (appearing by telephone and representing himself) made submissions supplementing those put before the Tribunal and summarised in its decision. 69 Ms Anderson placed particular emphasis on the fact that a strip search was almost invariably conducted against the will of the inmate being searched and was indeed an unpleasant experience for him or her. It was undertaken as part of the security and custodial functions of correctional officers and could lawfully involve the use of force. If it led to the discovery of prohibited goods, this would result in punishment of the inmate concerned. She referred in this context to relevant clauses of the Crimes (Administration of Sentences) Regulation 2001 and the Crimes (Administration of Sentences) Regulation 2008, notably clauses 119 and 121(4)(a) (as well as clause 46, quoted above) of the former regulation. 70 It followed, Ms Anderson contended, that while a number of activities of correctional officers in a prison could be regarded as 'services' to inmates because of the benefits conferred by them, and while the strip-searching of an inmate might well constitute a 'service' to other inmates by virtue of its role in maintaining order, discipline and security within the prison, a strip search could not be characterised as a 'service' to the inmate who was compelled to submit to being searched. 71 Mr Dezfouli's submissions were focused to a significant extent on his status (which the Department acknowledges) as a 'forensic patient' as defined in section 3(1) of the Mental Health (Criminal Procedure) Act 1990. This meant among other things, he maintained, that the Department was required by clause 60(3A) of the Crimes (Administration of Sentences) Regulation 2001 to give 'special attention' to his needs. 72 Mr Dezfouli argued also that correctional officers employed by the Department were obliged, when dealing with him, to pursue the objects of the Mental Health Act 2007 (as set out in section 3 of that Act) and of the New South Wales public health system (as set out in section 105 of the same Act), and also to abide by the 'principles for care and treatment' of people with a mental illness or mental disorder (as set out in section 68). 73 Finally, Mr Dezfouli placed significant emphasis on a point that he had made before the Tribunal, namely, that searches of forensic patients were conducted in order to prevent them doing harm to themselves. This was the case, he said, of the search during which he claimed to have been sexually harassed. The officers carried it out because they believed that he had matches in his possession. The approach to be adopted in identifying 'services' for the purposes of section 22F 74 We will commence this discussion of the Tribunal's judgment and of the parties' submissions by referring to the passage from Waters at 404-405 that was quoted by Sundberg J in Rainsford v Victoria [2007] FCA 1059 at [75] (see [56] above). 75 In Waters, Mason CJ and Gaudron J had this to say on the same topic (at 361): 'It was open to the Board to identify the service provided by the [respondent] corporation with more or less particularity.' In IW v City of Perth (1997) 191 CLR 1 at 16-17, Brennan CJ and McHugh said:- In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides. 76 These principles were stated in Waters and IW with reference to provisions of interstate anti-discrimination law (in Victoria and Western Australia respectively) relating to discrimination on the ground of impairment. In IW, the provisions of significance for present purposes were sections 66A(1), 66A(3) and 66K(1) of the Equal Opportunity Act 1984 (WA). Sections 66A(1) and 66A(3) stated:- 66A(1) For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of impairment if, on the ground of - (a) the impairment of the aggrieved person; (b) a characteristic that appertains generally to persons having the same impairment as the aggrieved person; (c) a characteristic that is generally imputed to persons having the same impairment as the aggrieved person; or (d) a requirement that the aggrieved person be accompanied by or in possession of any palliative device in respect of that person's impairment, the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment. 66A(3) For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of impairment if the discriminator requires the aggrieved person to comply with a requirement or condition - (a) with which a substantially higher proportion of persons who do not have the same impairment as the aggrieved person comply or are able to comply; (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply. 77 Section 66K(1) was in terms almost identical to those of section 24(1) of the Disability Discrimination Act 1992 (Cth) (quoted above at [53]), except that the term 'impairment' was used instead of 'disability'. 78 The nearest equivalents to sections 66A and 66K in the AD Act are sections 49B and 49M of the AD Act, dealing with discrimination on the ground of disability. 79 An important difference (in the present context) between these three provisions in the WA Act and the provisions of the AD Act (sections 22A and 22F) with which this appeal is primarily concerned is that the former, but not the latter, provisions invoke the concept of discrimination. They require a determination as to whether the complainant has been treated differently from other persons in a relevant group. In this sense, they may be called 'classic' anti-discrimination provisions. Under section 66A(1) of the WA Act, for instance, the relevant group is defined in the concluding words of the subsection as persons who do not have the same impairment as the complainant. 80 On the other hand, sections 22A and 22F of the AD Act do not require a comparison to be made between the respondent's conduct towards the complainant and his or her conduct towards one or more 'comparators'. In Fricke v Whyburn [2003] NSWADT 10, for instance, the complaint was that the respondent, a solicitor, sexually harassed the complainant while appearing for him at a mediation. In the Tribunal's decision dismissing the complaint on the ground that conduct amounting to sexual harassment had not been proved, the Tribunal noted (at [33]), and appeared not to dispute, the assertion that the respondent's alleged conduct took place in the course of the provision of 'legal services' to the complainant. An inquiry as to whether the respondent was providing legal services to anyone other than the complainant would have been irrelevant. 81 This contrast between these two sets of provisions may be further illustrated as follows. Where, in a 'classic' discrimination case, the gist of the complaint (as in the case of a complaint under section 66K(1)(a) of the Equal Opportunity Act 1984 (WA)) is that the respondent has refused to provide the relevant services to the complainant, identification of these services is achieved solely by investigating what the respondent has done that might confer advantage or benefit on comparators, i.e., persons other than the complainant. It is an integral part of the complaint that the services in question were not provided to the complainant. By contrast, what must be determined in a complaint under section 22F of the AD Act in which provision of services has been alleged is (a) whether the respondent sexually harassed the complainant and (b) whether he or she did so in the course of providing or offering to provide services to the complainant. 82 In the two High Court cases to which we have referred and in almost all the other Australian cases in which the meaning of 'services' in provisions such as these has been discussed to a material extent, the complaint has been brought under 'classic' anti-discrimination provisions. The only significant discussions of 'services' that we have located in cases brought under section 22F or under an equivalent provision in interstate anti-discrimination legislation are to be found in Dezfouli v Department of Corrective Services [2008] NSWADT 277 (outlined above at [59 - 60]) and Hollingsworth v Commissioner of Police, New South Wales Police [2004] NSWADT 17 at [41 - 50]. In neither of these cases was consideration given to the point that we have just made. 83 There is accordingly no authority, as far as we are aware, on the question whether, and if so in what respects, the difference that we have identified between classic anti-discrimination provisions and provisions such as section 22A and 22F relating to sexual harassment warrants a different approach to determining the meaning of 'services'. The passage from McHugh J's judgment in Waters that Sundberg J quoted in Rainsford (see [56] above) suggests, however, that a different approach is indeed required. This passage includes the following two observations (emphasis added): '… the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination…. What is a sufficiently precise identification of the service in one case may be too general in another'. Our conclusions on the question of 'services' 84 By virtue of these considerations, we have some concerns about the approach adopted by the Tribunal in the section of its reasons (paragraphs [35] to [45]) that we summarised above at [61 - 67]. At a number of points in these paragraphs, the Tribunal appeared to pose the question to be resolved as whether strip searches in a prison could be regarded as 'services to inmates'. At [38], for instance, it said that even though the 'primary service' rendered by prisons might be the provision of protection and criminal justice to members of the community, the alleged 'actions' done to Mr Dezfouli could also be a '"service" within the ADA to others' (emphasis added). At [41] and [42], it used the phrases 'strip searches to protect the safety of inmates' and (in describing strip searching) 'services to inmates' respectively (emphasis again added). Elsewhere in this section of its judgment (for example at [39], [43], and [44]), it used the term 'services' or the phrase 'services within the ADA' in isolation, without indicating that it considered the issue to be resolved as being whether, at the crucial time, 'services' were being provided to Mr Dezfouli specifically. In paragraph [45], when recording its conclusion on the matter, it again used the phrase 'services within the ADA', not a phrase such as 'services to Mr Dezfouli'. 85 For the reasons that we have advanced, the question whether a strip search of Mr Dezfouli can be characterised as a 'service' to all the inmates within Long Bay gaol is not the precise question to be answered. What matters instead is whether any strip search that took place should, in the particular circumstances, be regarded as constituting, or forming part of, a course of action by correctional officers that amounted to the provision of 'services' to Mr Dezfouli. The express words of section 22F make this clear. 86 For these reasons, we consider that the Tribunal erred in law by applying an incorrect criterion to the question to be resolved. To quote from the passage in the judgment of Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156 that we reproduced above at [35], the Tribunal 'defined otherwise than in accordance with law the question of fact' that it was required to answer. 87 A more appropriate methodology may well, in our view, have been to decline the parties' request for determination, as a preliminary matter, of the question whether the alleged sexual harassment of Mr Dezfouli occurred in the course of provision of 'services' to him by the correctional officers concerned. This view stems from our belief that a significant reason that Mr Dezfouli could and did advance for treating a strip search as a service to himself was that it had the potential to protect him, a forensic patient, from harming himself. The question whether the specific strip search to which his complaint related was in fact conducted out of concern for his safety could not, however, be determined until the Tribunal had received and given consideration to the evidence adduced by the parties as to how and why the strip search occurred. 88 The Tribunal, at [35], referred to this argument advanced by Mr Dezfouli. But in the ensuing paragraphs it did not expressly treat the clearly beneficial nature of this reason for strip-searching forensic patients as relevant to its conclusion that a 'service' was provided to Mr Dezfouli. Indeed, by characterising strip searches as an activity that constituted a service 'to inmates' because it promoted the security and safety of everyone within the prison, the Tribunal appeared not to attach particular weight to Mr Dezfouli's status as a forensic patient. 89 The methodology that we have suggested as more appropriate is more likely, in our opinion, to ensure in a case such as this that the description of the 'services' within the meaning of the AD Act that are held to have been provided to the complainant is sufficiently precise to comply with the requirements laid down in McHugh J's judgment in Waters and, indeed, in other judgments of the High Court in Waters and in IW (see [75] above). 90 We should add that if in this case the allegations made by Mr Dezfouli were in due course proved to be substantially true, it might well be 'open to' the Tribunal (in using this phrase, we refer to the passage quoted above at [34] from the judgment of Kirby J in IW) to find that the sexual harassment of which Mr Dezfouli has complained occurred in the course of the provision of 'services' to him by the correctional officers concerned. 91 In the light of the foregoing conclusions, and taking account of what we said earlier about the apparent significance of section 22J of the AD Act for these proceedings, the appropriate orders for us to make are that Order 1 of the Tribunal made on 21 July 2008 should be set aside and that the question dealt with in that order should be redetermined by the Tribunal, if it proves necessary, in the course of determining Mr Dezfouli's application. The Department's challenge to the Tribunal's grant of leave under section 103 92 At the hearing of the appeal, Ms Anderson argued that an amendment under section 103 of the AD Act could not be made except to a complaint that was 'valid'. The existing complaint must, she said, be based on alleged conduct that, if proved, would be unlawful under the Act. The Tribunal's jurisdiction under the AD Act could not be invoked except by a complaint that was valid in this sense. It followed, she submitted, that if we ruled that Mr Dezfouli's complaint of sexual harassment under section 22F was incompetent in law because on his own version of events the alleged harassment did not occur in the course of any 'service' being provided to him, we were bound to set aside the Tribunal's order granting leave for a complaint of victimisation under section 50 to be added. 93 Mr Dezfouli made no submissions relating to this aspect of the appeal. 94 Having regard to the conclusion that we have reached about the applicability of section 22F to the content of Mr Dezfouli's complaint, this question, strictly speaking, does not arise for determination. Although we are setting aside the Tribunal's order relating to the question of 'services', our substituted order leaves open the possibility that Mr Dezfouli may succeed in proving a breach of section 22F. We have also suggested that the conduct alleged by him would, if proved, constitute a breach of section 22J. 95 We wish to add, however, that we are inclined to reject the argument put by Ms Anderson in the particular form in which she put it. If it were correct, the Tribunal would have to determine the legal 'validity' of a complaint with which it was dealing before making any amendment of it under section 103. As the present case demonstrates, that task may be difficult and time-consuming because deciding whether the conduct alleged in the complaint, if proved, would be unlawful under the Act may be far from straightforward. 96 The evident purpose of the section (the text of which is set out above at [17]) would then be frustrated. In Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54 at [38], an Appeal Panel said:- There is no extrinsic material which sheds light on the rationale for section 103, but the intention of the legislature was to avoid the delay and potential duplication involved in having to lodge a fresh complaint with the President of the ADB in circumstances where a complaint involving the same or some of the same parties or the same or similar circumstances, is already before the Tribunal. 97 It is significant also that section 102 of the ADT Act, which like section 103 falls within Division 3 of Part 9 of the Act, confers power on the Tribunal to dismiss the whole or any part of a complaint on grounds including the following (set out in section 92(1)(a)(i) and (ii)):- (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 this Act or the regulations. 98 If the term 'complaint' in section 102 includes complaints that are liable to dismissal on either of these grounds, it is difficult to understand why (in the absence of any express indications) the same term in the section next following should not also include complaints that would or might be insufficient in point of law. 99 An accompanying submission made by Ms Anderson was that Mr Dezfouli's complaint of victimisation under section 50 would be liable to dismissal if we allowed the Department's appeal relating to the complaint under section 22F. The reason, she submitted, was that 'victimisation' as defined in section 50 (the text of which is at [16] above) is limited to situations where the respondent has exacted reprisals for one or more of the relevant reactions by the complainant (as defined in subsection (1)) to conduct that actually amounted to unlawful discrimination under the Act. 100 We do not accept this submission. As we understand section 50, it is sufficient that the complainant engaged in good faith in what we have called 'one or more of the relevant reactions' by virtue of a belief, held in good faith, that he or she had suffered from conduct amounting to unlawful discrimination. It is not necessary that this belief was correct. 101 We accordingly reject the second ground of appeal. Our orders 102 We order as follows:-

Leave to appeal is granted
The appeal is allowed in part
Orders 1, 3 and 4 made by the Tribunal in its decision dated 21 July 2008 are set aside
The proceedings are remitted to the Tribunal as originally or similarly constituted for hearing and determination in accordance with these reasons
The Tribunal is directed to give consideration to permitting the Applicant to characterise his complaint made under section 22F of the Anti-Discrimination Act 1977 as one made under section 22J in addition to, or instead of, section 22F
The proceedings are listed for a Case Conference on a date to be fixed by the Registry.

Commissioner of Corrective Services v Dezfouli

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Cases Cited (14)