State of New South Wales v Whiteoak

NCAT Appeal Panel|2014-09-19|Before: Wright J

Citation: [2014] NSWCATAD 45 Date of Decision: 2014-04-11 00:00:00 Before: J Wakefield, Senior Member N Hiffernan, General Member M Nasir, General Member File Number(s): 101067

reasons for decision 1WRIGHT J, President: Mr Whiteoak, the respondent, has been serving a life sentence for rape and murder since 1983. Like all male inmates in the State's Corrective Services system during the period relevant to this appeal, he was classified into one of 7 categories "for the purposes of security and the provision of appropriate development programs", under the Crimes (Administration of Sentences) Regulation 2008 (NSW) (the C(AS) Reg). 2In December 2008, he lodged a complaint under the Anti-Discrimination Act 1977 (NSW) (the AD Act) alleging that the appellant, the State of New South Wales, by the Commissioner of Corrective Services and other Corrective Services officers, discriminated against him on the ground of race in making a number of decisions relating to classification and development programs, in breach of s 19 of the AD Act. 3The complaint eventually came before the Administrative and Equal Opportunity Division of the Tribunal. In the Tribunal, the appellant defended the complaint in relation to the classification decision made on 15 December 2008 only on the ground that classifying inmates did not constitute providing "services" within the meaning of s 19 of the AD Act. The Tribunal rejected that argument and found that the appellant was relevantly providing "services". Consequently, the Tribunal made the following orders in Whiteoak v State of New South Wales [2014] NSWCATAD 45: 1.The Applicant's complaint that he was discriminated against by the Respondent in breach of s 19 of the Anti-Discrimination Act 1977 in the decision of the Respondent to classify him as C1 on 15 December 2008 is substantiated. 2.The Respondent is to pay the Applicant damages pursuant to s 108(2)(a) of the Anti-Discrimination Act 1977 assessed in the sum of $500, such damages to be paid into the Victims Support Fund pursuant to s 111A(2) of the Anti-Discrimination Act 1977 to be expended as money forming part of that Fund. 3.The Applicant's complaints are otherwise dismissed. 4The appellant has appealed under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) against the Tribunal's decision which was a decision made in the general jurisdiction of the Tribunal. In particular, the appellant seeks to have orders (1) and (2), referred to in the preceding paragraph, set aside. For the reasons which follow, I have concluded that the appeal should be allowed, the orders made by the Tribunal below should be set aside and in their place orders should be made dismissing the whole of Mr Whiteoak's complaint.

The 15 December 2008 Classification Decision 5As at 15 December 2008, Mr Whiteoak was serving a life sentence in a correctional centre operated by the appellant. On that day, a delegate of the Commissioner of Corrective Services decided to continue Mr Whiteoak's security classification as Category C1. Mr Whiteoak complained that the appellant's conduct in this regard amounted to direct discrimination on the ground of race which breached s 19 of the AD Act. 6On this appeal, it is not necessary to examine the particular circumstances of, or reasons for, that decision of 15 December 2008 since the appellant throughout the proceedings accepted that its conduct in relation to the 15 December 2008 classification of Mr Whiteoak would breach s 19 of the AD Act if it was correct to characterise classifying inmates as providing "services" within the meaning of s 19. 7As a consequence, the issue of whether classifying inmates constitutes providing "services" lies at the heart of this appeal, notwithstanding that there are a number of different grounds of appeal.

Grounds of Appeal 8In its notice of appeal lodged on 13 May 2014, the appellant's grounds of appeal were formulated as follows: 1. The Tribunal erred in law in failing to identify the correct factual question for resolution since the Tribunal asked whether a case plan/case management was helpful and beneficial to an inmate (and hence the provision of a service within s 19 of the Anti-Discrimination Act 1977 (NSW)) whereas it should have asked whether security classification was in and of itself helpful and beneficial to an inmate (and hence the provision of a service). Particulars Decision at [121] - [144], [146] - [148] and [157] 2. The Tribunal erred in determining that security classification was a service to an inmate within s 19 of the Anti-Discrimination Act 1977 (NSW)) since it failed to take into account that the expression "goods and services" in s 19 of the Anti-Discrimination Act 1977 (NSW) were words of limitation. 3. The Tribunal erred at [159] in failing properly to consider and [apply] the decisions of Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770, Commissioner of Police, NSW Police Force v Estate of Russell [2001] NSWSC 745, Rainsford v Victoria (2007) 167 FCR 1 and R v Entry Clearance Officer, Bombay, Ex parte Amin [1983] 2 AC 819, which were factually analogous and which established that not all governmental functions were services, and therefore failed to reach the conclusion that security classification is not the provision of a service to an inmate within s 19 of the Anti-Discrimination Act 1977 (NSW)). 4. The Tribunal erred in fact in failing to place sufficient weight on evidence of Terry Halloran and Luke Grant and the Classification Manual and therefore failed to conclude that the overriding concern of security classification of an inmate was security rather than the provision of help or a benefit to an inmate. 5. The Tribunal erred in finding that security classification was the provision of a service to an inmate within s 19 of the Anti-Discrimination Act 1977 (NSW) since the prison system could not function without security classification and security classification is an inherent part of incarceration. 9I shall consider the question of leave to appeal before dealing with other aspects of the appeal.

Leave to Appeal 10As ground 4 did not raise a question of law but was an appeal based on an error as to facts, the appellant sought leave to appeal in respect of that ground. This was necessary, having regard to s 80(2)(b) of the Act and the fact that the decision appealed from was a final, not an interlocutory, decision. 11The respondent accepted that grounds 1,2, 3 and 5 raised questions of law and did not contend that leave to appeal was required in respect of those grounds. He did, however, oppose leave being granted in respect of ground 4. The respondent submitted that it had been determined on a number of previous occasions that classifying inmates and the provision of work and local leave permits were services - see for example Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308 at [129] and Dezfouli v Department of Corrective Services [2008] NSWADT 198 at [45]. It was also submitted that whether a particular activity is a service is a question of fact and a decision on the facts cannot have "widespread implications". The fact finding process and the factual conclusions reached were not so flawed as to attract a grant of leave. 12The principles which are applicable in considering whether or not to grant leave to appeal under s 80 of the Act have been summarised by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [84] as follows: 84. The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. 13In my view the appellant's 4th ground of appeal is, on its face, at least arguable. Furthermore, the conclusion that, in the factual circumstances of this case, classification of inmates could be characterised as helpful or beneficial to inmates in the relevant sense is attended by sufficient doubt as to warrant its reconsideration by the Appeal Panel. 14In this case, there are additional features which justify the grant of leave. First, classification of inmates is a standard process which has been and is likely to be a feature of the way in which the Commissioner of Corrective Services manages the correctional centres for which he is responsible and the inmates in those centres, for a considerable period. There have already been a number of cases brought under the AD Act alleging unlawful discrimination in relation to classification and related decisions by the Commissioner or his delegates. These have included the present matter at first instance, Whiteoak v State of New South Wales [2014] NSWCATAD 45, as well as Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308 and Richard v Director General, Department of Justice and the Attorney General (Corrective Services NSW) [2011] NSWADT 158. It is likely that further complaints of unlawful discrimination arising out of classification decisions have been or will be made in the future. On this basis, the question of whether the Commissioner's or his delegates' classifying of inmates is helpful or beneficial in a relevant sense and thus amounts to providing "services" within the meaning of the AD Act involves a question of public importance which might have general application. 15Secondly, the question of whether activities such as classification of inmates are distinctly governmental functions which do not relevantly constitute the provision of help or a benefit to an affected person raises an issue of principle of some importance. 16Thirdly, as referred to below in these reasons for decision, the explicit findings of fact made by the Tribunal below are somewhat limited and in relation to parts of the evidence of Mr Halloran and Mr Grant it is not entirely clear which parts of that evidence were accepted and which rejected. It would be helpful if the factual basis of the case was clarified. This could be done if leave to appeal is granted. 17In all these circumstances, I am satisfied that it is appropriate to grant leave to appeal to the appellant in respect of ground 4 so that the factual foundation for any decision is clearly established and so that all the grounds relied upon can be fully addressed. An order for leave to appeal should be made. 18The application for leave to appeal was heard concurrently with the appeal itself and consequently the parties have made submissions on all issues and the Appeal Panel is in a position to deal with all aspects of this appeal.

Sequence of Dealing with the Grounds of Appeal 19In order to identify the relevant facts and resolve any factual issues before addressing the questions of law, I shall address first ground 4 and the factual question of the nature and purpose of the classification of inmates. Secondly, I shall consider whether the Tribunal erred in law by asking itself the wrong question as raised in ground 1 of the appellant's grounds of appeal. Lastly, I shall deal with the proper construction and application of the word "services" in s 19 of the AD Act in the circumstances of the present case and in so doing I shall address grounds 2, 3 and 5.

Clarification of the "Services" Alleged 20Ms Sharpe of counsel, who appeared for the appellant, put her case on appeal squarely on the basis that considering and determining (including varying) inmates' classifications were not "services" within the meaning of s 19 of the AD Act, and consequently orders 1 and 2 made by the Tribunal below should be set aside. Section 19 provides: 19 Provision of goods and services It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which the other person is provided with those goods or services. 21In the Tribunal at first instance, Mr Whiteoak had identified the relevant "services" which were said to have been provided by the appellant and to have been refused or provided on terms to Mr Whiteoak in a variety of ways not limited to the consideration and determination of inmates' classifications. For example, in paragraph 18(c) of the further amended points of claim the services were identified as "[v]arying the classification of inmates for the purpose of the provision of external leave opportunities" and in paragraph 18(d) as "[c]onsidering whether the classification of inmates should be varied for the purposes of the provision or development programs, external leave opportunities or the engagement in work or employment opportunities". 22The Appeal, however, was conducted on a more limited basis. In his written submissions, Mr Howell of counsel, who appeared for Mr Whiteoak, submitted at paragraph 18: "The Appeal is limited to the Tribunal's conclusion that inmate classification was capable of characterisation as a 'service' for the purposes of s 19 of the AD Act, and the Orders ultimately made". Similarly, at paragraph 21 in those submissions it was said: "[t]he only issue on the appeal is whether in making a decision as to an inmates classification under cl 22 of the 2008 Regulations as part of the regular case plan review required by cl 13 of said Regulations (more particularly the case plan review conducted on 15 December 2008), the Appellant is providing a service to an inmate." 23In oral submissions before the Appeal Panel, this approach was confirmed. Mr Whiteoak's counsel accepted that if consideration and variation of inmates' classifications were not "services" within s 19 of the AD Act, then orders 1 and 2 made by the Tribunal below should be set aside. Mr Howell also confirmed that the basis upon which Mr Whiteoak was arguing that the decision of the Tribunal below was correct was that the respondent discriminated against Mr Whiteoak on the ground of race in the terms on which Mr Whiteoak was provided with the services of consideration and variation of his classification in breach of s 19(1)(b) of the AD Act. 24Accordingly on this appeal, the Appeal Panel is required to address only the issue of whether consideration and determination (including variation) of inmates' classification constituted providing "services" within the meaning of s 19 of the AD Act. For simplicity, I shall use the expression classification of inmates or a similar expression to refer to the process by which inmates were classified as being in one of the security categories set out in the relevant regulation, either initially when an inmate was first received at a correctional centre or subsequently when the classification was reviewed and the category to which the inmate was assigned might be maintained or varied.

Classification of Inmates - Principal Legislative Provisions 25As at 15 December 2008, the management of inmates in correctional centres for which the appellant was responsible was governed by the Crimes (Administration of Sentences) Act 1999 (NSW) (the C(AS) Act). Section 79 of that Act permitted the making of regulations and included the following: 79 Regulations The regulations may make provision for or with respect to the following matters: ... (c) the classification of inmates into different categories and the separation of inmates by reference to the categories into which they have been classified, ... 26The regulations in force at 15 December 2008 were found in the C(AS) Reg. Part 2.2 of the C(AS)Reg (cll 12 to 29) was headed "Case management and classification", and dealt with case management in Division 1 of that Part and classification of inmates in Division 2. 27Part 2.2, Division 2, which had the heading "Classification and designation of inmates", included the following: Division 2 Classification and designation of inmates 22 Classification of male inmates (1) Each male inmate is to be classified in one of the following categories for the purposes of security and the provision of appropriate development programs: Category AA, being the category of inmates who, in the opinion of the Commissioner, represent a special risk to national security (for example, because of a perceived risk that they may engage in, or incite other persons to engage in, terrorist activities) and should at all times be confined in special facilities within a secure physical barrier that includes towers or electronic surveillance equipment. Category A1, being the category of inmates who, in the opinion of the Commissioner, represent a special risk to good order and security and should at all times be confined in special facilities within a secure physical barrier that includes towers or electronic surveillance equipment. Category A2, being the category of inmates who, in the opinion of the Commissioner, should at all times be confined by a secure physical barrier that includes towers, other highly secure perimeter structures or electronic surveillance equipment. Category B, being the category of inmates who, in the opinion of the Commissioner, should at all times be confined by a secure physical barrier. Category C1, being the category of inmates who, in the opinion of the Commissioner, should be confined by a physical barrier unless in the company of a correctional officer or some other person authorised by the Commissioner. Category C2, being the category of inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times but who need some level of supervision by a correctional officer or some other person authorised by the Commissioner. Category C3, being the category of inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times and who need not be supervised. (2) Subject to clause 27, the Commissioner may at any time vary or revoke a classification under this clause. (3) Male inmates who are classified in Category AA are prescribed to be serious offenders, as referred to in paragraph (f) of the definition of serious offender in section 3 (1) of the Act. 23 Classification of female inmates ... 24 Escape-risk classifications ... 25 Designation of high security and extreme high security inmates ... 26 Management of high security and extreme high security inmates ... 27 Variation of classification and designation of certain inmates (1) The Commissioner: (a) must not cause an inmate who has an escape-risk classification to cease to have such a classification, and (b) must not cause an inmate who has a high security or extreme high security designation: (i) to have that designation varied to another such designation, or (ii) to cease to have such a designation, and (c) must not cause a serious offender to have his or her classification changed, without seeking and considering the recommendations of the Review Council in that regard. (2) In the case of an inmate who has an escape-risk classification, the Review Council: (a) is not to make a recommendation for the purposes of subclause (1) (a) unless it is satisfied that there are special circumstances that, in the opinion of the Review Council, justify the reclassification, and (b) need not entertain any application made to it by an inmate for the purposes of subclause (1) (a) if, on the face of the application and any document submitted in support of it, it appears to the Council that the application: (i) is not substantially different from a previous application, made by or on behalf of the same inmate, that the Council has rejected, or (ii) is frivolous or vexatious. (3) If the Commissioner varies the classification or designation of an inmate under this clause in a manner that is contrary to the recommendations of the Review Council, the Commissioner must cause notice of that fact to be given to the Review Council. 28 High security classification of inmates for purposes of interstate leave permits ... 29 Information to be considered for classification purposes For the purpose of making any decision with respect to a person's classification under this Division, consideration must be given to any advice received from the NSW Police Force or from any other public authority (whether of this or any other State or Territory or of the Commonwealth) established for law enforcement, security or anti-terrorist purposes. 28Development programs, as referred to in the chapeau of cl 22(1) (quoted above), also formed part of an inmate's "case plan". A case plan was defined in the Dictionary to the C(AS) Reg as follows: case plan, in relation to an offender [which term includes an inmate], means a plan for the management of the offender, being a plan that includes provisions that indicate the development programs in which the offender should be encouraged to participate and the services that the offender should be encouraged to make use of, and the offender's obligations in that regard. (underlining added) 29As has already been noted, case plans were dealt with in Division 1 of Part 2.2 of the C(AS) Reg which included the following: Division 1 Case management 12 Case plans to be prepared for all inmates (1) A case plan is to be prepared and adopted for each inmate in a correctional centre. (2) The Commissioner must ensure that the first case plan is prepared and adopted as soon as practicable after the inmate is received into the correctional centre. (3) Subsequent case plans are to be prepared and adopted: (a) not later than 6 months after the previous case plan was adopted, and (b) if the sentencing court's comments in relation to an inmate are unavailable when the first case plan is prepared, as soon as practicable after any such comments become available, and (c) if a report is sent to the Commissioner under clause 18, as soon as practicable after the report is received, and (d) at such other times as the Commissioner may determine. (4) The procedure for preparing and adopting a case plan is as set out in this Division. 13 Contents of case plan (1) An inmate's case plan must indicate: (a) the inmate's classification for the time being, and (b) the correctional centre at which the inmate is to be held for the time being, and (c) the services and programs in which the inmate should be encouraged to participate. (2) An inmate's case plan may deal with any matter relating to the management of the inmate, including: (a) the provision of health care services to the inmate, and (b) in the case of an inmate who appears to be at risk of self-harm, the preparation of a strategy to minimise the likelihood of self-harm occurring, and (c) in the case of an inmate who has a disability, the preparation of a strategy to minimise any disadvantage suffered by the inmate on account of the disability, particularly in relation to the inmate's suitability to carry out work, and (d) in the case of an inmate who is an Aboriginal person, the implementation in relation to the inmate of the recommendations contained in the report of the Royal Commission into Aboriginal Deaths in Custody, and (e) the provision of services and programs to the inmate under Division 5 of Part 2.3, and (f) the provision of pre-release and post-release assistance to the inmate (such as advice on the availability within the community of financial, accommodation and employment assistance and of medical and counselling services and alcohol and other drug treatment programs). (3) In preparing an inmate's case plan, regard is to be had to the following matters: (a) the sentencing court's comments in relation to the inmate, (b) any assessment that has been made as to the inmate's physical or mental health, (c) whether or not the inmate is likely to be deported from Australia, (d) the inmate's criminal history and correctional centre history, (e) the inmate's history of behaviour while subject to supervision otherwise than as an inmate: (i) pursuant to any conditions of bail, or (ii) pursuant to any conditions of parole, or (iii) pursuant to any conditions to which any sentence or other penalty imposed by a court is subject, or (iv) pursuant to any conditions to which any extended supervision order under the Crimes (Serious Sex Offenders) Act 2006 is subject, (f) any assessment that has been made (whether by officers of the Department or of any other government department or public authority) as to: (i) the level of risk that the inmate poses to good order and security, and (ii) the likelihood that the inmate may try to escape from custody, and (iii) any factors contributing to the inmate's criminal behaviour, and (iv) the likelihood of the inmate committing further offences, whether of the same or of a different kind, (g) the need to protect the community, (h) the resources available to the correctional centre at which the inmate is to be held in relation to the implementation of the plan. 14 Departmental officers to prepare recommendations (1) Recommendations with respect to an inmate's case plan are to be prepared by one or more departmental officers nominated by the Commissioner (the nominated officer). ... (5) In the case of an inmate who is serving a sentence of more than 2 years, the functions of the nominated officer under this clause are to be exercised by a committee of 2 or more departmental officers nominated by the Commissioner. (6) The constitution and procedure of such a committee is to be determined by the Commissioner. 15 Consideration of recommendations by departmental officers (1) The recommendations prepared in accordance with clause 14 with respect to an inmate's case plan are to be reviewed by one or more departmental officers nominated by the Commissioner (the nominated review officer), who are to prepare a report on those recommendations. (2) The nominated review officer must take all reasonable steps to ensure that the report with respect to an inmate is submitted within 28 days of the recommendations being prepared: (a) to the Commissioner, and (b) in the case of a report that relates to a serious offender, or an inmate who has a high security or extreme high security designation, to the Review Council. 16 Consideration of certain case plans by Review Council (1) The Review Council is to review any report prepared in accordance with clause 15 in relation to a serious offender, or an inmate who has a high security or extreme high security designation. (2) The Review Council may furnish to the Commissioner such submissions with respect to any such report as it considers appropriate. 17 Adoption of case plan by Commissioner (1) After considering: (a) the report prepared in accordance with clause 15 with respect to an inmate's case plan, and (b) any advice by the Review Council in relation to the report, the Commissioner must adopt a case plan for the inmate. (2) The Commissioner is not bound to follow the recommendations in the report or the advice of the Review Council. 18 General manager's report as to inmates' placement If the general manager of a correctional centre considers that an inmate in the centre, or an inmate transferred, or proposed to be transferred, to the centre, is unsuitable for placement or for continued placement in the centre, the general manager must cause a report to be sent: (a) to the Commissioner, and (b) in the case of a report that relates to a serious offender, or an inmate who has a high security or extreme high security designation, to the Review Council, setting out the reasons why the inmate should not be placed, or continue to be placed, in the centre. 19 Consideration of certain reports by Review Council (1) The Review Council is to review any report prepared by the general manager of a correctional centre with respect to the placement, or continued placement, in the centre of an inmate who is a serious offender, or an inmate who has a high security or extreme high security designation. (2) The Review Council may furnish to the Commissioner such submissions with respect to any such report as it considers appropriate. 20 Decision by Commissioner as to inmates' placement (1) After considering: (a) any report prepared by the general manager of a correctional centre with respect to the placement, or continued placement, in the centre of an inmate who is a serious offender, or an inmate who has a high security or extreme high security designation, and (b) any submissions by the Review Council in relation to the report, the Commissioner must make a decision with respect to the inmate's placement, or continued placement, in the centre. (2) The Commissioner is not bound to follow the recommendations in the report. (3) If the Commissioner is of the opinion that there are urgent reasons for doing so, the Commissioner may make a decision with respect to the transfer of an inmate who is a serious offender or an inmate who has a high security or extreme high security designation without giving the Review Council an opportunity to make submissions. (4) The Commissioner must notify the Review Council of any decision made under subclause (3). (5) After considering the report prepared by the general manager, the Review Council may recommend to the Commissioner that the Commissioner reconsider a decision made under subclause (3). 21 Linguistic and cultural factors to be considered ... 30As the Tribunal below was dealing with a number of allegations of unlawful discrimination over a number of years, it did not at all time refer exclusively to the legislation as it applied at 15 December 2008, which has been set out above. 31It was not in dispute that the development programs referred to in cl 22(1) included programs known as "External Leave Programs" or ELPs whereby certain inmates were permitted to be unconfined by a physical barrier with or without various forms of supervision, depending on the nature of the ELP in question. 32It should also be noted that the Review Council referred to in cl 16 of the C(AS) Reg is the Serious Offenders Review Council (SORC) established under s 195 of the C(AS) Act. SORC was relevant to Mr Whiteoak's case planning processes and placement because he was an offender who was serving a sentence for life and thus fell within paragraph (a) of the definition of "serious offender" in s 3(1) of that Act.

Classification of Inmates - The Tribunal at First Instance 33The Tribunal below dealt in some detail with whether classification of inmates constituted providing services. At [59], the Tribunal accepted the conclusion reached in Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308 at [115] that "[t]he touchstone for a service [in this context] is whether the act is helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs". The Tribunal's consideration of the classification of inmates is principally found at [78] to [161] in the reasons for decision of the Tribunal below. 34The Tribunal at first instance noted at [78] that it was in issue on the pleadings whether determination of a "security classification" was a service. At [79], the Tribunal summarised the contest between the parties as it understood it as follows: 79 The contest between the parties on this issue will be determined by whether, as the Applicant puts it, classification and inmate services and programs are intrinsically linked each forming part of the overall case planning process which underpins the scheme of management of inmates under the [Crimes (Administration of Sentences) Act 1999 (NSW)] and [Crimes (Administration of Sentences) Regulation 2008 (NSW)] or, as the Respondent puts it, there is a structural separation in the undertaking of security classification on the one hand and participation in programs on the other. 35The Tribunal then referred to evidence given by Mr Halloran, Executive Director of Classification, Case Management and External Leave Programs of the respondent and by Mr Grant, Assistant Commissioner - Offender Services and Programs of the respondent. At [28] the Tribunal had noted that both Mr Halloran and Mr Grant had sworn affidavits and had been cross examined. Nonetheless, neither there nor elsewhere in its reasons for decision did the Tribunal expressly state whether or not it accepted the evidence of those witnesses or make comprehensive findings based upon that evidence. Rather, the Tribunal gave a summary of portions of the evidence of those witnesses in a number of paragraphs between [81] and [106]. Some of this evidence outlined the procedures that were followed in relation to classification and case plans. There was no suggestion at any stage that those procedural matters were in contest and, consequently, they should be accepted as having been established and it appears to be implicit that this is what the Tribunal below did. The Tribunal also referred to portions of the C(AS) Reg, which, in the form applicable at 15 December 2008, are relevantly included in the passages quoted above. 36At [85], there is a passage which is in contest. At that paragraph, the Tribunal below stated: It was Mr Halloran's evidence that as the case plan includes the inmate's security classification these matters are taken into account in assigning an inmate's classification. The appellant contended that this statement was not an accurate reflection of the evidence and that issue will be addressed later in these reasons. 37At [94], it is recorded that Mr Halloran's evidence was that the "legal obligations with respect to a classification" were supplemented by the policies set out in the Classification Manual, which was in evidence before the Tribunal and extracts of which were before the Appeal Panel. It applied at all times material to this appeal. Once again there was no contest concerning this evidence and the Tribunal appears to have accepted it. In the paragraphs which followed the Tribunal drew attention to parts of the Classification Manual. 38At [100] and [101], the Tribunal recorded the evidence of Mr Halloran as follows but made no express finding as to whether it accepted or rejected that evidence: 100 It was Mr Halloran's evidence based on his experience in his position that the security classification does not involve the provision of a "service" to an inmate. He said that inmates are given a security classification to indicate the level of supervision which they require in order to maintain the good order of the correctional centre, the safety of the inmate and other inmates, the safety of staff and the safety of the community at large. 101 It was Mr Halloran's evidence that in his experience and to his understanding security classification is not tailored in order to make an inmate eligible for a program. Rather, the security classification is first imposed with a view to achieving the maintenance of the good order of the correctional centre and the other matters to which he had referred. Subject to that security classification an inmate may or may not be eligible for particular programs. 39As to Mr Grant's evidence, a similar approach was adopted by the Tribunal at first instance at [103] to [106]. Those paragraphs relevantly included the following: 103 Mr Grant gave evidence, based on his experience in his position, that the purpose of inmate classification is ultimately to protect the community. He said that the fundamental purpose of inmate classification is security. He said that this purpose was adopted in line with the recommendations of the Report of the Nagle Royal Commission into New South Wales Prisons in 1978 which he said made it clear that security came before program and other considerations. In the body of his report, Justice Nagle observed: "The Commission has taken the view that the primary but not the only concern of any classification should be security. In the light of the security classification those responsible should give effect to all other relevant circumstances with a view to seeing that the program and placement suits the prisoner's needs." ... 106 Mr Grant gave evidence that security classification is based on an objective assessment of the risk of harm that an inmate poses to the community should they escape, the risk of harm the inmate poses to other inmates and staff and the risk of escape. The security classification of an inmate determines the environment in which they are managed including the physical perimeter, security and the level of staff supervision. It is an essential management tool, he said, for maintaining the good order and discipline of the prison system, for maintaining the public confidence in the administration of justice and ultimately protecting the safety of the community. Mr Grant said that in his experience eligibility for a particular program is never a consideration when determining the appropriate security classification. Satisfactory completion of a program may be a legitimate consideration prior to considering the reduction of an inmate's classification. 40Without making any specific and express findings in relation to the evidence referred to in the preceding paragraphs, the Tribunal then recorded the parties' submissions at [107] to [114] and a number of principles derived from the authorities at [115] to [120]. 41The Tribunal's reasoning then was as follows: (1)Classification falls within the regime for case management and case management of an inmate is helpful or beneficial to the inmate - [121], [138] and [146] - this conclusion was based on passages extracted from the Classification Manual (at [122] to [135], [139] to [143]) and from another document which was in evidence and was referred to as the External Leave Programs Policy or ELP Policy (at [136] to [137]); (2)Within the classification process there is at least some focus on the inmate's needs, both within the context of the detailed case plan and the process of classification itself - [144] and [146] - this conclusion was based upon extracts from Chapter 14 of the Classification Manual as set out at [140] - [143]; (3)At [145], the Tribunal contrasted: on the one hand, the evidence of Mr Halloran and Mr Grant to the effect that security is the only consideration when classifying inmates and that access to programs is determined by the level of security classification once it is made; with, on the other, the "duality of purpose" expressed in the statement found in cl 22(1) of the C(AS) Reg that classification of inmates is "for the purposes of security and the provision of appropriate development programs". It is then observed that those programs are helpful or beneficial to an inmate. There is, however, no statement as to whether the evidence of Mr Halloran and Mr Grant was either accepted or rejected. (4)The Tribunal then noted that when SORC was exercising its functions of review in relation to serious offenders, it was required to consider the "public interest" which included under s 198(3), among other things, "(a) The protection of the public, which is to be paramount", and "(k) The rehabilitation of the offender and the re-entry of the offender into the community as a law abiding citizen." - [147] and [148]. It then concluded that this latter consideration was one which SORC was bound to take into account when providing advice and making recommendations with respect to security classification and this consideration was plainly helpful and beneficial to the inmate - [149]; (5)The Tribunal also relied upon Mr Grant's evidence that in making a decision in 2009 not to accept a SORC recommendation to progress Mr Whiteoak from Category C1 to C2D he took into consideration the benefits that might be potentially available to Mr Whiteoak, in particular the leave benefits he was seeking - [154]. This finding was challenged by the appellant and this will be dealt with later in these reasons; (6)The Tribunal also relied upon paragraph 18.1.5 of the ELP Policy which it said indicated that case management and classification approval processes for external leave programs were consistent with standard case management and classification procedures for all inmates and it contemplated the application of the classification process for more than one purpose including the beneficial one of approval for external leave programs - [156]; (7)The Tribunal then concluded that the evidence referred to supported the view that classification had a duality of purpose (as referred to in IW v City of Perth (1997) 191 CLR 1 at 44) and that whilst classification was essential to the security of the correctional system, it could also be properly characterised as helpful or beneficial to inmates in the sense that within case plan management it determined the availability of access to services and programs - [157]; (8)Therefore, "classification is to be construed as a 'service' in the broader terms of its ordinary meaning within cls 4 and 19 of the AD Act" - [158]. 42At [159] - [160] the Tribunal referred to a number of authorities relied upon by the appellant but distinguished them on the basis that the fact situations addressed by those cases were not readily comparable to the present situation. Finally, at [161] the Tribunal concluded as follows: "consideration of whether the classification of inmates should be varied for the purpose of the provision of appropriate development programs is also a service within the meaning of cls 4 and 19 of the AD Act".

Appellant's Submissions 43In ground 4, the appellant challenged the factual basis for the decision of the Tribunal at first instance. This ground involved the contention that the Tribunal erred in not finding that the overriding concern of classification of inmates was security rather than the provision of help or a benefit to inmates. This occurred, according to the appellant, because the Tribunal failed to place sufficient weight on the evidence of Mr Halloran and Mr Grant and the Classification Manual. 44In its written submissions the appellant went so far as to submit that the Tribunal gave "no weight" to the evidence of Mr Halloran and Mr Grant and gave no reasons for failing to give it weight. If proper weight had been given to that evidence and the material from the Classification Manual the appellant submitted that the Tribunal should have concluded: (1)Security classification is concerned solely with maintaining security within the prison and protecting the community; (2)Decisions about security classification are made first and solely by reference to security considerations. They are not "reverse engineered" so as to make a prisoner eligible for a particular placement or to do a particular program; (3)Security classification is one part of the case plan, but it is the first step. Only after an inmate's security classification is decided can placement and development programs be considered and determined. 45Under this ground, the appellant also challenged the specific findings made by the Tribunal below at [85] that Mr Halloran gave evidence that as the case plan included the inmate's security classification certain matters (not specifically identified in the reasons for decision) were taken into account in assigning an inmate's classification. In addition, particularly in oral submissions, the appellant challenged the finding at [154] that Mr Grant accepted that in making a classification decision in 2009 he took into consideration the benefits potentially available to Mr Whiteoak. 46Further, the appellant also relied particularly on the Classification Manual, properly understood, as supporting its position in this regard and contended in effect that the Tribunal's conclusion that the C(AS) Reg and other documents were not consistent with Mr Halloran's and Mr Grant's evidence should be rejected.

Respondent's submissions 47The respondent submitted that the evidence of Mr Halloran and Mr Grant was in fact considered by the Tribunal. It was set out at some length in the Tribunal's reasons. For example, at [145] the Tribunal recorded the effect of the evidence of those witnesses as being that security is the only consideration and that access to programs is determined by the level of security classification once that is made. Their evidence was also accepted in part, for example at [157] where the Tribunal concluded that classification of inmates was "essential to the security of the correctional system". Thus, it was incorrect to state that their evidence had been given no weight or had not been considered. 48The respondent also referred to the Tribunal's analysis of the C(AS) Reg and the Classification Manual and how their provisions interacted with the evidence of Mr Halloran and Mr Grant. The substance of the respondent's submission was that the Tribunal considered and gave the evidence of those witnesses due weight but having regard to the terms of the C(AS) Reg and documents such as the Classification Manual and the ELP Policy, it concluded, as it was open for it to do, that inmate classification was not solely about security but had a duality of purpose which included the provision of appropriate development programs. 49In addition, the respondent drew attention to the bases for the findings referred to at [85] and [154] and contended that those findings were supported by the evidence.

Consideration - Weight Accorded to Mr Halloran's and Mr Grant's Evidence 50Despite the absence of express findings based on the evidence of Mr Halloran and Mr Grant, from the reasons for decision of the Tribunal at first instance, especially [78] to [158], referred to above, it appears to me that the Tribunal considered the evidence of those two witnesses. 51In my view, the Tribunal's careful recounting of the evidence and detailed consideration of inmate classification in the light of that evidence and the provisions of the Classification Manual and other documents indicate, at least implicitly, that the Tribunal generally accepted the evidence of Mr Halloran and Mr Grant except to the extent that the provisions of the C(AS) Reg or relevant documents indicated that the situation was not as those two witnesses suggested. As a consequence, it appears to me that where the Tribunal was of the view that the C(AS) Reg, the Classification Manual or the ELP Policy indicated that the purposes of, or considerations relevant to, classification of inmates were wider than just security and included the provision of appropriate development programs or services, the Tribunal did not accept Mr Halloran's and Mr Grant's evidence but rather relied upon what the Tribunal took to have been indicated by the regulation, the manual or the policy. 52In these circumstances it could not be said that the Tribunal gave their evidence no weight. It appears that the Tribunal gave that evidence some weight but did not accept parts of it because the Tribunal concluded that certain passages from the C(AS) Reg, the Classification Manual and the ELP Policy were inconsistent with that evidence. 53It was open to the Tribunal to go about its fact finding task in this way, assessing the witnesses' evidence against the relevant documentary material. There was no illogicality or unfairness in how the Tribunal reasoned. Therefore, I do not accept that the Tribunal erred by taking the general approach that it did. 54It does not follow from this, however, that there was no error of fact in the Tribunal's decision falling within ground 4. There are 2 further matters that must be considered in relation to this ground. First, the appellant specifically challenged the findings at [85] and [154] of the Tribunal's reasons as being in error and those challenges must be addressed. Secondly, ground 4 raises the question of whether the Tribunal erred by not concluding, after giving due weight to the evidence of Mr Halloran and Mr Grant in the light of the C(AS) Reg, the Classification Manual and the ELP Policy, that the sole and overriding concern of security classification of an inmate was security rather than the provision of help or a benefit to an inmate. In support, the substance of the appellant's submission was that, properly understood, the various extracts from the Classification Manual and the ELP Policy as well as the terms of cl 22(1) of the C(AS) Reg which were relied upon by the Tribunal were not inconsistent with Mr Halloran's and Mr Grant's evidence and therefore did not provide a sound basis for rejecting their evidence. Rather, that material supported their evidence. Thus, the Tribunal was wrong to reach the conclusions that it did. I shall address these aspects of ground 4 in order.

Consideration - Challenge to Finding at [85] 55At [85], the Tribunal below stated that Mr Halloran had given evidence that "as the case plan includes the inmate's security classification these matters are taken into account in assigning an inmate's classification." The appellant contended that this misstated the evidence that Mr Halloran gave in his statement and in cross examination. 56I accept, as the appellant submitted, that Mr Halloran gave evidence in his statement that inmates were given a security classification to indicate the level of supervision that they required in order to maintain the good order of the correctional centre, the safety of the inmate and other inmates, the safety of staff and the safety of the community at large and that such classification was not tailored to make an inmate eligible for a development program. Further, Mr Halloran in cross examination did state that "the purpose of classification is not to ensure that someone does a program" and reiterated that "the purpose of classification, each classification level has a security purpose, it confines people under a certain security with a certain level of supervision". Nonetheless, the words that the Tribunal below used at [85] of its reasons are taken almost exactly from the statement of Mr Halloran at paragraph 20 where he stated: As the case plan includes the inmate's security classification, it follows that these matters are to be taken into account in assigning an inmate's classification. These matters are: [the list of matters found in cl 13(3) of the C(AS) Reg is then set out in full with cll 13(3)(c) and (f)(ii) underlined] 57Thus, there is no error on the part of the Tribunal in this regard. 58I do not believe, however, that this evidence and the finding provide substantial support for either the appellant or respondent in this appeal. Some of the matters set out in cl 13(3)(a) to (h) could, as a matter of fact and depending on the circumstances of an inmate, be relevant to the question of the nature of the barrier and level of supervision that was required in respect of an inmate in order to "maintain the good order of the correctional centre, the safety of the inmate and other inmates, the safety of staff and the safety of the community at large", to use Mr Halloran's words. Thus some of those matters might, where relevant, be taken into account in assigning an inmate's classification. Some of those matters might also be relevant to other aspects of the case plan, including which development programs the inmate should be encouraged to participate in. From this it cannot be concluded, however, that classification was or was not designed to benefit or be helpful to an inmate in such a way as to lead to the conclusion that classifying inmates constituted providing "services" for the purposes of s 19 of the AD Act. 59Further, the logic of Mr Halloran's statement was flawed. Contrary to what he said, it does not follow merely from the fact that "the case plan includes the inmate's security classification", that all of the cl 13(3) considerations must be taken into account in assigning an inmate's classification. Clause 13(3) merely said that "[i]n preparing an inmate's case plan, regard is to be had to the following matters [as set out in paragraphs (a) to (h)]". The case plan included as one element, but involved more than, the inmate's classification. Thus, as a matter of logic, the matters in cl 13(3)(a) to (h) did not all necessarily relate to the classification decision.

Consideration - Challenge to Finding at [154] 60As to the finding at [154] challenged by the appellant, this is not of direct relevance to the 15 December 2008 decision. The finding was that "Mr Grant accepted in cross examination that in making this decision he was taking into consideration the benefits which were potentially available to Mr Whiteoak, in particular the leave benefits he was seeking." It concerned a decision in December 2009 when the circumstances were different from those which applied in December 2008. 61Nonetheless, the finding in [154] may be more generally relevant as it calls into question Mr Grant's evidence that "in my experience eligibility for a particular program is never a consideration when determining the appropriate security classification" and, for example, his evidence in cross examination that: There is no relationship in any decision I've made between the availability of a program and creating a classification after saying a person requires this program, so as I mentioned in this process that I've adopted over my years of making these decisions a security classification decision happens first [.] [H]aving a regard to that the appropriateness of the program that's available for someone of that classification is the next consideration in the case plan. 62The relevant circumstances relating to this 2009 decision were as follows. On 4 December 2009 Mr Grant (as the delegate of the Commissioner) decided not to approve a reduction in Mr Whiteoak's classification from C1 to C2D as recommended by SORC. In doing so, Mr Grant made a written comment "I am unclear what benefits are of progression to C2D". 63In paragraphs 35 and 36 of his statement Mr Grant dealt with this decision and said "I did not see any benefit in Mr Whiteoak being progressed from 'C1' to 'C2'" and "My substantive reason for not progressing Mr Whiteoak to a 'C2' classification is that he had not to my satisfaction undertaken the custody based intensive treatment program for sex offenders (CUBIT). My main concern was that he undertakes CUBIT to reduce his risk of re-offending. Secondly, I did not see that there was any benefit in progressing to the 'C2', since a reduction to C2 in Mr Whiteoak's case would have no practical effect on the supervision and managerial regime under which he was being managed and would not give him access to leave programs that he was seeking." 64Mr Grant was cross examined on his comment "I am unclear what benefits are of progression to C2D" and the paragraphs from his statement quoted above. 65The cross examination included the following: Mr Howell: And paragraph 35 you make comment on this and in paragraph 36 also that you didn't perceive there to be any benefits to the individual in the regression, withdraw that, any progression from C1 to C2 being recommended by the, by the SORC. Mr Grant: Mm. Mr Howell: And... SORC... so you're considering, I want to suggest to you as playing [sic plain] on the face of it that you're considering what benefits are available when making a classification decision, are you not? Mr Grant: Well --- Mr Howell: Are you not? Mr Grant: What consequences, I wrote benefits there but consequence I suppose it's a benefit, it's not always a benefit. Mr Howell: But on this case the question was --- Mr Grant: Well what I said --- Mr Howell: --- what benefits. Mr Grant: --- I couldn't see there were any benefits. Mr Howell: Right. Now I'll go back to CUBIT in a minute but so far as the benefit issue is concerned you don't say do you that someone at C2 classification ordinarily couldn't participate in for example a, and as supervised externally a pre-release program, do you, you don't say that they couldn't. Mr Grant: No, I don't. Mr Howell: Put that in a more sensible way they can, can't they? Mr Grant: They can, they can, yeah. Mr Howell: Sorry. Mr Grant: It would very unusual but they can, yeah. 66From this it appears that Mr Grant sought to acknowledge that classification decisions have consequences as to the programs available to an inmate and this may or may not be a benefit. He then re-iterated that he could not, in that case, see that there were any benefits from changing classification. Strictly, this is different from what the Tribunal found. Although it is not entirely clear, Mr Grant does not appear to have accepted the positive statement that in making the 2009 decision concerning Mr Whiteoak's classification he was taking into consideration the benefits which were potentially available to Mr Whiteoak, in particular the leave benefits he was seeking, as the Tribunal found at [154]. Rather, he was drawing attention to the absence of any benefit if the SORC recommendation were accepted as a reason for not accepting that recommendation. 67Thus, it could be concluded that the Tribunal below misstated the effect of what Mr Grant had said in cross examination. Notwithstanding this, however, it does not follow that such a misstatement would invalidate the Tribunal's reasoning or factual foundation for its decision so that the appeal should be allowed on this basis. Although Mr Grant might not have accepted the positive proposition as found by the Tribunal, there is an obvious connection between classification and participation in development programs and this played a part in his decision making process in December 2009. It is the nature of the classification process and its connection with development programs as disclosed in the relevant legislation, manuals, policies as well as the evidence of how and why the classification and case planning processes are undertaken which should ultimately determine whether classification of inmates constitutes providing "services" for the purposes of the AD Act. That conclusion should not be determined by what Mr Grant may or may not have done when he made the December 2009 decision.

Consideration - The Classification Manual, other Documents and C(AS) Reg and Mr Halloran's and Mr Grant's Evidence 68The Tribunal described the principal elements of the evidence of Mr Halloran and Mr Grant which were relevant to the contest between the parties and to the issue the Tribunal had to resolve as follows: (1)That there was a structural separation between undertaking security classification and access to development programs (at [79]) (I understand the reference to "structural separation" to be to the conceptual structure of the processes not to how the processes were physically carried out); and (2)That security was the only consideration when classifying inmates and that access to development programs was determined by the level of security classification once it was made (at [145]). 69The Tribunal concluded (at [157]), based upon a review of portions of the Classification Manual and the External Leave Program Policy together with cl 22(1) of the C(AS) Reg, that classification "takes into account appropriate development programs" and had a duality of purpose including "a purpose which is beneficial or helpful to an inmate". These conclusions were apparently based upon the premise that the C(AS) Reg and the extracts from the Classification Manual and the EPL Policy identified by the Tribunal were inconsistent with Mr Halloran's and Mr Grant's evidence concerning structural separation and the sequential nature of the process of decision making concerning classification and the provision of appropriate development program as part of the case planning process. 70There was no challenge on this appeal to the conclusion that preparing and implementing a case plan was helpful and provided a benefit to an inmate, as found by the Tribunal at [121] and [138]. Further, it was accepted by the parties that classification was directly related to the case planning process not least because cl 13(1)(a) of the C(AS) Reg required that an inmate's case plan "must indicate ... the inmate's classification for the time being". It may also be accepted on this appeal that the purpose of providing development programs to inmates was to help or benefit them. 71As noted above, the substance of the appellant's submissions was that, in so far as classification was concerned, the C(AS) Reg and the extracts from the Classification Manual and the External Leave Program Policy relied upon by the Tribunal at first instance did not provide a proper basis for rejecting Mr Halloran's and Mr Grant's evidence or reaching a conclusion contrary to that evidence. The appellant submitted that this was because the regulation and the extracts were not actually inconsistent with that evidence but rather provided confirmation of or support for that evidence. The respondent maintained that the evidence of the two witnesses was inconsistent with the material relied upon by the Tribunal below and that the conclusion reached was open on the evidence. 72Accordingly, it is necessary to review the C(AS) Reg and the passages from the Classification Manual and the other documents relied upon by the Tribunal at first instance in some detail and to determine whether they are indeed inconsistent with Mr Halloran's and Mr Grant's evidence. 73As has been noted above, cl 22(1) of the C(AS) Reg stated that "[e]ach male inmate is to be classified in one of the following categories for the purposes of security and the provision of appropriate development programs". Thus, it could be legitimately said that classification has two purposes. The appellant submitted, however, that these two purposes were not equivalent. As to the first, security, it was submitted that this purpose was the end sought to be achieved by classifying inmates, namely the good order of the correctional centre in which the inmate is held, the safety of the inmate and other inmates, the safety of staff and the safety of the community at large. The second, it was submitted, was of a different order. It merely identified a consequence which flowed from the classification of an inmate and was not the end sought to be achieved by classification. An inmate's classification was one element that had to be "indicated" in the inmate's case plan and the other elements of the plan such as placement and development programs depended to some extent on classification but classification did not depend on those other elements. 74It can be accepted that the word "purpose" has a number of meanings in ordinary English. One is "the object for which anything is ....done" and another is "the practical result, effect ..." (Macquarie Dictionary Online Ed, meanings 1 and 6 respectively). It is possible, as the appellant submitted, to read the chapeau of cl 22(1) as identifying that security was the object sought to be achieved by inmate classification while providing inmates with appropriate development programs was something that was a mere consequence of, but did not directly influence, the inmate's classification. If this is so, the evidence of Mr Halloran and Mr Grant is consistent with such a reading and should not be rejected because of the terms of cl 22(1). 75This is not, however, the only way in which cl 22(1) can be read. As the respondent submitted, inmate classification could be characterised as being done both with the object of maintaining security and with the object, not just the consequence, of making appropriate development programs available to inmates. Even if this submission were accepted, it does not follow that the chapeau to cl 22(1) is inconsistent with Mr Halloran's and Mr Grant's evidence. 76As one purpose of classifying inmates identified in cl 22(1) was "security", considerations relating to security naturally played a significant, even determinative, role in deciding an inmate's classification. This is consistent with Mr Halloran's and Mr Grant's evidence. 77If the other purpose or object, as opposed to consequence, of classifying inmates was the provision of "appropriate development programs", there would also naturally be some connection between an inmate's classification and which programs were "appropriate". Some indication of the connection can be found in the 7 categories AA to C3, set out in cl 22(1). They specify at what times and with what types of barrier the inmates in that classification should be confined and in some cases the nature of the facilities, barrier or supervision required in the light of the risk to national security, the risk to good order and security or otherwise. A significant number of the categories would preclude an inmate from participating in some development programs. Thus, it can been understood that while classification of inmates had the object of providing "appropriate development programs" for inmates this meant that it had the object of ensuring that the development programs provided to an inmate were "appropriate" having regard to the inmates' classification. 78Consequently, under cl 22(1), classification could be said to have a duality of purpose, namely: (1) to maintain security; and (2) to restrict the development programs provided to an inmate to those programs which were "appropriate" in the sense of being consistent with the inmate's classification. This being so, security factors would be the only considerations relevant to determining an inmate's classification and to determining which programs were "appropriate" for an inmate having regard to that classification. It would only be after an inmate's classification and the programs "appropriate" for that inmate had been determined, by considerations of security, that the other needs and circumstances of the inmate would be taken into account to decide in which actual development programs the inmate should be encouraged to participate. 79Therefore, even if cl 22(1) is read as indicating that classification has two purposes or objects, it is entirely consistent with classification of inmates preceding, conceptually at least, decisions concerning development programs and placement in the case planning process. It is also consistent with classification decisions being made by reference to security considerations and not by reference to what development programs would be beneficial for the inmate. Consequently, cl 22(1) should not be seen as inconsistent with Mr Halloran's and Mr Grant's evidence. It provides no proper basis for its rejection. 80At [144] the Tribunal concluded that the extracts from Chapters 13 and 14 of the Classification Manual set out in [139] to [143] disclosed "within the classification process at least some focus on the inmate's needs". The appellant in effect contended that this was not so. 81The first extract at [139] was from Chapter 13 of the Classification Manual as follows: Classification is the process whereby inmates are designated a security rating that determines the custodial location in which they are to be managed. It is one of the most important processes for ensuring the security of the correctional system. Staff who participate in the process must maintain a constant awareness of the significance of this activity for ensuring the safety of the community, staff and other inmates. The initial classification of an inmate builds on and is a continuation of the reception, screening and induction process. At this stage all the information that has been assembled on an inmate is to be used to develop an appropriate initial case plan, with particular emphasis on LSI-R assessment results. (See section on Case Management Team). 82The first paragraph of this extract is consistent with Mr Halloran's and Mr Grant's evidence as to security being the only consideration relevant to determining an inmate's classification. The second paragraph is also consistent with the classification being conceptually separate from the provision of appropriate development programs and being but one integer in the development of an initial case plan. This extract does not provide any proper support for rejecting Mr Halloran's and Mr Grant's evidence. 83The second extract, set out at [140], from Chapter 14 of the Classification Manual was: Classification is the process whereby inmates are designated a security rating that determines the custodial location in which they are managed. It is one of the most important processes for ensuring the security of the correctional system. Staff who participate in the process must maintain a constant awareness of the significance of this activity for ensuring the safety of the community, staff and other inmates. ... NOTE: The classification and placement of an inmate is part of a comprehensive and detailed case plan designed to address his/her individual and identified needs in response to offence(s) committed for which the inmate has been sentenced. In carrying out the provisions of the legislation there is to be a presumption that an inmate will always obtain a significant rehabilitative benefit from programs, including external leave programs, when motivated to participate. 84The first paragraph of this extract is the same as the first paragraph from the Chapter 13 extract and provides no proper basis for rejecting the two witnesses' evidence. The second paragraph, the "Note", correctly states that classification and placement are part of the case plan (see cl 13(1)(a) and (b)) of the C(AS) Reg) and that the case plan is designed to address an inmate's needs. It does not follow from this, however, that classification of inmates is designed to address inmate needs. As to the third paragraph, it does not relate at all to an inmate's classification and deals with the presumed benefit to be derived by inmates from development programs. There is nothing in this extract which is inconsistent with Mr Halloran's and Mr Grant's evidence nor does it provide any proper basis for rejecting their evidence. 85The third extract, at [141], was also from Chapter 14 and stated: CRITERIA FOR REGRESSION OF SECURITY CLASSIFICATION - GENERIC A security classification signifies a level of trust which is accorded to an inmate and is part of the inmate's case plan. 86The "level of trust" accorded to an inmate reflects the security risk the inmate poses. This is established by the paragraph numbered 2 which followed the passage quoted by the Tribunal. Paragraph numbered 2 contained the following: "where the inmate has failed to respond to the level of trust signified by the existing security classification rating that the inmate enjoys (eg substantiated assaults on staff or inmate(s); documented stand-over tactics in minimum security situations; consistent record of non-compliance with centre routine)". As to the last part of the passage relied upon, whilst it is correct that a security classification is part of an inmate's case plan, that part of the passage has no bearing on whether or not classification is based on security considerations rather than which development programs might benefit an inmate. It does not undermine the conclusion that classification is conceptually antecedent to the determination of what development plans should be made available to the inmate. An inmate's classification is, under cl 13(1)(a), to be indicated in, and thus is a part of, the inmate's case plan. There is nothing in this extract which is inconsistent with the two witnesses' evidence nor does it support rejecting their evidence. 87The fourth extract is taken from a paragraph numbered 7 on page 140 of Chapter 14 of the Classification Manual and from the same section as the previous extract. The full paragraph is as follows (with the portion relied upon by the Tribunal in italics): Where an inmate has his/her classification regressed and/or is removed from a correctional centre pending an investigation either by Police, external bodies or departmental officers, the comments field attached to the classification decision must reflect this. An inmate should not be moved from the centre pending the outcome of an investigation unless it can be demonstrated that the security of the centre and/or safety of staff, community or other inmate(s) is at risk if the inmate is not transferred to another centre. It is incumbent on the case manager at the receiving correctional centre to monitor the outcome of the investigation and to organise a review the inmate's classification when the investigation is complete. Where the allegations are found to have no substance, the inmate's progression in classification must not be compromised. As classification status is based on an assessment of risk, the principle of the balance of probabilities is to apply and staff participating in classification reviews must be careful to balance the needs of the inmate with the perceived risk to the community, staff and other inmate(s). [emphasis in original] 88The Tribunal below emphasised the words "the needs of the inmate" in this paragraph. This paragraph, however, deals with a particular issue namely classification decisions in the context of a pending investigation or where the allegations have been found to have no substance. It does not deal with classification decisions in general. In addition, the "needs" of the inmate which must be balanced are not specifically identified. It might refer to needs of the inmate that could be addressed through development programs or it might refer to the inmate's security needs, for example the need to be protected from other inmates. This latter need, the safety of the inmate, is one that Mr Halloran referred to as being taken into account in classification decisions in his evidence summarised by the Tribunal at [100]. In the circumstances, the passage is neither so clear nor compelling that it would amount to a firm basis, on its own, for rejecting the evidence of Mr Halloran and Mr Grant on this topic. 89Finally, the Tribunal referred at [143] to a paragraph numbered 8 on page 136 of Chapter 14 of the Classification Manual which was as follows: The placement of inmates into particular correctional centres should, whenever possible, be in response to an assessment of risk and criminogenic need factors and resources available in individual correctional centres to match assessment results. ... 90The Tribunal below emphasised the words "response" and "criminogenic need factors". This passage deals with placement not classification. Placement, or the identification of the correctional centre at which the inmate was to be held, is one of the three elements that was required by cl 13(1) of the C(AS) Reg to be "indicated" in an inmate's case plan, along with the inmate's classification and the services and programs in which the inmate should be encouraged to participate. Placement and classification are separate although related processes as the classification will determine to some extent the type of correctional centre in which an inmate may be placed. Nonetheless, from this passage it does not follow that "criminogenic need factors" are taken into account or determinative when a classification, as opposed to a placement, decision is being made in respect of an inmate. This passage is not inconsistent with Mr Halloran's or Mr Grant's evidence and once again provides no proper basis for rejecting their evidence. 91This consideration of these passages demonstrates that, contrary to what the Tribunal said at [144] and [145], these passages do not: (1)"disclose within the classification process at least some focus on the inmate's needs, both within the context of the detailed case plan and the process of classification itself" - [144]; or (2)provide support for the conclusions that "in the respects identified above, the classification process itself has regard to the needs of inmates" except perhaps in relation to the inmate's security need for safety or protection from other inmates - [145]. 92Moreover, these passages from the Classification Manual were not inconsistent with and did not justify the Tribunal's rejection of the evidence of Mr Halloran and Mr Grant. 93At [147] to [149], the Tribunal then considered ss 197(2)(a) and 198(1) and (3) of the C(AS) Act and concluded "... it is plain that within the operation of s 198 of the C(AS) Act, SORC is bound to consider rehabilitation and re-entry of the offender into the community as one aspect of public interest when providing advice and making recommendations with respect to security classification. This is plainly helpful and beneficial to the inmate." 94Sections 197 and 198 relevantly provided, as at 15 December 2008, as follows: 197 Functions of Review Council ... (2) In particular, the Review Council has the following functions: (a) to provide advice and make recommendations to the Commissioner with respect to the following: (i) the security classification of serious offenders, (ii) the placement of serious offenders, (iii) developmental programs provided for serious offenders, ... 198 Matters to be considered in relation to certain advisory functions (1) When exercising its functions under section 197 (2) (a) in relation to a serious offender, the Review Council must consider the public interest and any other relevant matters. (2) In the case of its function under section 197 (2) (a) (i), the Review Council must also consider, in accordance with the regulations: (a) any submissions made by the State, and (b) any submissions made by victims of the serious offender, before advising or recommending that a serious offender should be given a less stringent security classification if it appears to the Review Council that the new classification would allow the offender to become eligible for unescorted leave of absence under a local leave permit or interstate leave permit. ... (3) Without limiting the generality of the meaning of public interest in subsections (1) and (2A), the Review Council is to take into account the following matters when considering the public interest: (a) the protection of the public, which is to be paramount, (b) the nature and circumstances of the offence, (c) the reasons and recommendations of the sentencing court, (d) the criminal history and family background of the offender, (e) the time the offender has served in custody and the time the offender has yet to serve in custody, (f) the offender's conduct while in custody, including the offender's conduct during previous imprisonment, if applicable, (g) the attitude of the offender, (h) the position of and consequences to any victim of the offender, including the victim's family, (i) the need to maintain public confidence in the administration of criminal justice, (j) the need to reassure the community that serious offenders are in secure custody as long as it is appropriate, (k) the rehabilitation of the offender and the re-entry of the offender into the community as a law-abiding citizen, (l) the availability to the offender of family, departmental and other support, (m) such other factors as are prescribed by the regulations. 95The terms of ss 197 and 198 do not support the Tribunal's conclusion that SORC was bound to consider rehabilitation and re-entry of the offender into the community as one aspect of public interest "when providing advice and making recommendations with respect to security classification". 96Under s 197(2)(a) SORC's functions include providing advice and making recommendations with respect to 3 things: security classification of serious offenders; the placement of serious offender; and, the provision of developmental programs for them. When performing functions under s 197(2)(a), s 198(1) provides that SORC "must consider the public interest ...". Section 198(3) provides that when SORC is considering the public interest it is required to take into account the non-exhaustive list of factors set out in paragraphs (a) to (m). It does not follow from these provisions that each of those factors is necessarily relevant to each of the 3 functions identified in s 197(2)(a). It cannot be inferred that the factor mentioned in s 198(3)(k) which obviously is most applicable to the determination of which developmental programs should be made available to an inmate must be taken into account when SORC is providing advice and making recommendations concerning an inmate's security classification rather than the inmate's placement or developmental programs. 97Furthermore, s 198(2) does contain specific considerations to which SORC must have regard when it is dealing with security classification. That subsection provides that before advising or recommending that a serious offender should be given a less stringent security classification, SORC must consider any submissions made by the State and by victims of the serious offender, if it appears to SORC that the new classification would allow the offender to become eligible for unescorted leave of absence under a local leave permit or interstate leave permit. This consideration is clearly focused on the safety and security of the community and the offender's victims. 98In all the circumstances, the Tribunal's conclusion at [149] does not follow from the terms of ss 197 and 198 of the C(AS) Act and those sections do not provide any sound basis for rejecting Mr Halloran's and Mr Gant's evidence. If anything, s 198(2) tends to support their evidence. 99At [150] to [154] the cross examination of Mr Grant concerning his comment in relation to the December 2009 classification decision is considered. I have already dealt with whether there was any error by the Tribunal in reaching its conclusion at [154] and have found that although the Tribunal's statement in that paragraph may not be entirely accurate, it is not such an error as to vitiate by itself the Tribunal's decision. In these circumstances, this material does not assist either the appellant or the respondent on this ground. 100Another matter upon which the Tribunal relied, at [155], was a passage from paragraph 18.1.5 of the External Leave Programs Policy as follows: The case management and classification approval process for external Leave Programs is consistent with the standard case management and classification procedures for all inmates. ... The CMT [Case Management Team] will consider an inmate's case management plan and make recommendation to the Governor/General Manager (delegate) for his/her classification to C3/Category 1 and therefore suitability for participation in External Leave Programs. ... 101At [156] the Tribunal found that this passage "contemplates the application of the classification process for more than one purpose including the beneficial one of approval for external leave programs." Implicitly, this appears to have been a further reason for the Tribunal to reject Mr Halloran's and Mr Grant's evidence. 102That extract from paragraph 18.1.5 is not inconsistent with Mr Halloran's and Mr Grant's evidence nor does it provide a sound basis for rejecting that evidence. 103In order to be eligible for an external leave program a male inmate must, among other things, have a C3 classification and, if not an Australian citizen, have been approved by the Commissioner through the SORC or Director's Review Committee for progression to C3 - see paragraph 18.1.7 of the ELP Policy. In these circumstances, it is natural that if a male inmate is to be recommended for participation in an external leave program the inmate must already have, or be recommended for, a C3 classification. The first paragraph of the passage relied upon indicates that the process for such an inmate obtaining a C3 classification is the same as the standard process for all inmates. The passage does not indicate that inmates who might benefit from participating in external leave programs would be given a C3 security classification that was not justified on security grounds or that was determined by using a process that was different from the security classification process applied to inmates generally. 104Further, when the second paragraph of the extract describes the case management and classification approval process for external leave programs as involving the Case Management Team considering an inmate's case management plan and making recommendation to the relevant officer for the inmate's classification to C3, it should not be assumed to mean that a male inmate who should not be classified C3 on security grounds would be recommended for that classification so that he could participate in an external leave program that might benefit him. Suitability for participation in external leave programs depends in the first place upon having a C3 classification as paragraph 18.1.7 of the ELP Policy made clear. 105Thus, neither paragraph of this extract from paragraph 18.1.5 establishes that considerations other than security determined whether any particular security classification was given to an inmate. The fact that a C3 classification was necessary to be able to participate in external leave program did not mean that a recommendation for a C3 classification was made on other than security grounds. 106For these reasons, neither the chapeau to cl 22(1) nor the extracts from the Classification Manual or the ELP Policy upon which the Tribunal relied is inconsistent with the evidence of Mr Halloran and Mr Grant. Accordingly, they did not amount to a proper basis for rejecting the evidence of those witnesses. 107In submissions before the Appeal Panel, attention was drawn to a passage in the ELP Policy in section 18.1 under the heading "Program Requirements: Unescorted External Leave Programs" which was not referred to by the Tribunal below. The passage was as follows: Policy The Department of Corrective Services, in carrying out the sentence directions of the courts and determining an appropriate security classification, has an objective to assist inmates to adapt to normal community life via correctional centre programs and participation in External Leave Programs prior to release. 108The fact that the appellant has the objective stated in that passage when determining security classifications does not mean that an inmate would be given a security classification that was otherwise unjustified on security grounds in order to allow the inmate to participate in such programs. The objective is not necessarily inconsistent with Mr Halloran's and Mr Grant's evidence. The objective could be achieved by determining the least restrictive classification for an inmate having regard only to security considerations. If this was done, inmates would have the maximum ability to participate in programs (either internal or external) without compromising security. Thus, it does not follow from this passage that considerations other than security determined inmate classification. 109Indeed, it appears from this passage and cl 22(1) of the C(AS) Reg that the classification process could be understood as involving decision making based solely upon security considerations but, given there was a choice of 7 categories for male inmates, assigning the least restrictive category consistent with the applicable security considerations to an inmate. This might well have had consequential benefits for the system in terms of the reduced cost of confining inmates in lower security environments as well as consequential benefits for inmates contingent upon whether the classification assigned to them permitted them to participate in particular development programs. 110Since the objectives in the passage referred to could be achieved in a manner that was consistent with the evidence given by Mr Halloran and Mr Grant, the passage does not provide a proper basis for rejecting their evidence.

Ground 4 - Should Findings of Fact be Made? 111The Tribunal at first instance did not make comprehensive, express findings of fact in relation to Mr Halloran's and Mr Grant's evidence and the process of determination of classifications for inmates. I have concluded that the documents relied upon by the Tribunal as the basis for implicitly rejecting that evidence were, properly understood, not inconsistent with the evidence and thus the Tribunal's fact finding process was flawed. Given that the findings of fact in relation to the process and considerations relevant to classification of inmates were not soundly based, it is necessary for the findings of fact to be reconsidered. Consequently, the question arises as to how factual findings should arrived at in the present case. 112The Tribunal below did not make any adverse credit findings against Mr Halloran and Mr Grant or expressly indicate that their evidence should be rejected in any specific respect. I have already concluded that the Tribunal's finding at [154] which might be thought to call into question parts of Mr Grant's evidence was not strictly correct in the light of the actual cross examination and, in any event, it did not appear to be determinative of any significant issue one way or the other. It does not provide a proper basis for concluding that Mr Grant's evidence was not generally credible and reliable. 113In all the circumstances, in my view the Appeal Panel is in as good a position as the Tribunal below to make findings on the basis of Mr Halloran's and Mr Grant's evidence and the other relevant documentary evidence. In addition, in this case where the original complaint of discrimination was made in December 2008 it would be inappropriate to remit the proceedings for a further hearing in the Administrative and Equal Opportunity Division in order to have appropriate factual findings made and the matter reconsidered in the light of those findings of fact together with the conclusions on the questions of law raised in the other grounds of appeal. Having regard to the obligation to facilitate the just, quick and cheap resolution of the real issues in the proceedings, in my view the proper course is for the Appeal Panel to make findings of fact, given that leave has been granted to appeal on the factual questions.

Ground 4 - Conclusion and Findings 114For these reasons, I would uphold the appeal to the extent that it is based on ground 4 and, further, I would accept the factual evidence of Mr Halloran and Mr Grant, including the material recorded in the paragraphs between [80] and [106] of the Tribunal's reasons for decision. I would not, however, treat as evidence or rely upon the opinions expressed by Mr Halloran and Mr Grant on various occasions as to whether classification of inmates was a "service". 115For the purposes of the further determination of this appeal and in summary, I would find that: (1)A case plan for an inmate must, under cl 13(1) of the C(AS) Reg, indicate the inmate's classification, the correctional centre in which the inmate was to be held and the services and programs in which the inmate should be encouraged to participate. (2)Classification of a male inmate into one of the 7 categories listed in cl 22(1) of the C(AS) Reg was designed to maintain security, in the sense of the good order of the correctional centre in which the inmate is held, the safety of the inmate and other inmates, the safety of staff and the safety of the community at large. It also had the object or purpose of restricting the development programs to be provided to an inmate to those that were "appropriate" having regard to the inmate's security classification. (3)It was not the purpose of classification of inmates to determine what development programs might be appropriate for an inmate having regard to factors other than security. That was the purpose of the other elements of the case plan. (4)In the process of preparing an inmate's case plan, the decision concerning the inmate's classification was made solely by reference to considerations of security, even if in order to give effect to the policy referred to in the passage in the ELP Policy in section 18.1 under the heading "Program Requirements: Unescorted External Leave Programs" set out above, the least restrictive security classification consistent with the requirements of security was assigned. (5)Classification of inmates was conceptually antecedent to the decisions concerning placement and which services and programs the inmate should be encouraged to participate in. (6)Classification decisions were not "reverse engineered" so as to make an inmate eligible for a particular service or program when security considerations required a classification which precluded the inmate's participation in such a service or program. (7)Case plans to the extent that they included development programs in which inmates were to be encouraged to participate were prepared for the purpose of benefitting or helping inmates because the development programs were primarily designed to help and benefit inmates. 116I now turn to consider ground 1 and then the proper construction and application of the word "services" in s 19 of the AD Act and grounds 2, 3 and 5 relied upon by the appellant. Having considered those matters, I shall then address what conclusions follow in the light of the findings of fact made above.

Ground 1 117The appellant's first ground of appeal was to the effect that the Tribunal below had identified and answered the incorrect question in relation to whether the appellant relevantly provided services. It was contended that the Tribunal asked whether a case plan or case management was helpful or beneficial to an inmate (and hence the provision of services within s 19) whereas it should have addressed the question whether classification was "in and of itself" helpful or beneficial to an inmate. 118As has been noted above and as stated in paragraphs 18 and 21 of the respondent's written submissions, Mr Whiteoak in substance based his case for the purposes of this appeal on the proposition that when the appellant classified an inmate as being in one or other of the categories set out in cl 22(1) of the C(AS) Reg, it was providing services to that inmate for the purposes of s 19. Accordingly, it was the classification of inmates not the preparation of a case plan for, or case management of, an inmate which was said to be the relevant service.

Ground 1 - Appellant's Submissions 119The essence of the appellant's submissions was that the Tribunal elided classification of inmates with developing an inmate's case plan. It was said that, as a result of that elision, the Tribunal concluded that classification was beneficial or helpful to an inmate. The appellant relied on [121] and [138] of the Tribunal's reasons for decision where the following conclusions were expressed: 121 Classification falls within the regime for an inmate's case management set out in C(AS) Reg and the Classification Manual. On the basis of the evidence which follows the Tribunal concludes that the case management of an inmate is helpful or beneficial. ... 138 In the Tribunal's view, those areas which have been identified reflect, in the context of case planning, a focus on the needs of the inmate with the objective of reintegration into society. The case plan is plainly helpful or beneficial to the inmate. 120In addition, the appellant referred to [157] of the decision below. 121These conclusions, it was submitted, establish that the Tribunal asked itself the wrong question because they do not address whether security classification of inmates, as opposed to case management or the preparation of a case plan, was a service.

Ground 1 - Respondent's Submissions 122The respondent submitted that, while the Tribunal did reach the conclusions set out at [121] and [138] that was not the full extent of its reasoning on the question of whether classification of inmates was a service. The submissions then analysed in some detail to the reasoning of the Tribunal at [139] to [158] which has already been set out above. 123As a result of that analysis, the respondent contended that the Tribunal specifically considered whether classification was itself beneficial to an inmate. This was made explicit in the Tribunal's conclusion at [157]: Whilst essential to the security of the correctional system, in the Tribunal's view the evidence establishes that classification can be properly characterised as helpful or beneficial to inmates in the sense that within case plan management it determined the availability of access to services and programs. 124The respondent then submitted that ground 1 of the appeal should be dismissed.

Ground 1 - Consideration 125Having regard to the reasoning and conclusions of the Tribunal at [139] to [158], I am of the view that the Tribunal did pose and address the question of whether classification, rather than case management, of inmates involved beneficial or helpful activities for those inmates. The conclusion that "classification can be properly characterised as helpful or beneficial to inmates in the sense that within case plan management it determined the availability of access to services and programs" (at [157]) demonstrates that the Tribunal did address the question of whether classification could be characterised as helpful or beneficial. Thus, the Tribunal did not commit the error contended for by the appellant in ground 1. 126Whether the Tribunal's conclusion that the classification of inmates constituted providing "services" was correct is a different matter and will be considered later in these reasons. 127Thus, I would dismiss the appeal in so far as it is based on ground 1.

Grounds 2,3 and 5 128In the present case, the appellant was found to have breached s 19 of the AD Act relevantly because the Tribunal below held that classification of inmates constituted providing "services" for purposes of that section. In the appellant's grounds of appeal, grounds 2, 3 and 5 relate to the proper construction of the word "services" in s 19 of the AD Act and its application to the facts of the present case. 129As I understood it, ground 2 was to the effect that the expression "goods and services" in s 19 should be construed as words of limitation and classifying inmates did not fall within the area of activity so delimited by the section. Under ground 3 the appellant argued that the authorities referred to in that ground indicate that, on the proper construction of s 19 of the AD Act and in particular "services" and its application to the facts, classification of inmates did not constitute the provision of "services" for the purposes of that section because it was the performance of a statutory duty rather than the provision of services as explained in the authorities to which the appellant referred. Ground 5 raised the contention that an activity which was an inherent part of incarceration could not amount to "services" provided by the public authority responsible for incarceration. Each of these grounds will be addressed in considering the proper construction and application of s 19.

Relevant Statutory Provisions and Structure of the AD Act 130The proper construction of s 19 and whether the words "goods and services" are intended to be words of limitation as contended in ground 2 will depend on, among other things, the text of the provision and its legislative context. 131Section 19 is in the following terms: 19 Provision of goods and services It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which the other person is provided with those goods or services. 132What constitutes "discrimination on the ground of race" for the purposes of s 19 and other provisions of the AD Act is set out in s 7 of the that Act which states: 7 What constitutes discrimination on the ground of race (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or (b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race. 133Instances of services which are "services" for the purposes of the AD Act are given in s 4(1) as follows: 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. 134The long title of the AD Act is "An Act to render unlawful racial, sex, and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons" (emphasis added). The structure of the AD Act bears this out as the Act does not render unlawful every instance of discriminatory treatment of a person on the ground of race or one of the other grounds of unlawful discrimination specified in the AD Act (namely: sex - s 24, transgender - s 38B, marital or domestic status - s 39, disability - s 49B, responsibilities as a carer - s 49T, homosexuality - s 49ZG, and age - s 49ZYA). As Basten JA observed in the Court of Appeal in Commissioner of Police v Mohamed [2009] NSWCA 432; 262 ALR 519 at [23] citing IW v City of Perth (1997) 191 CLR 1 at 14-15, the AD Act renders discrimination on one of the specified grounds unlawful only in "specific areas of social activity". 135The AD Act specifies the same areas of social activity, essentially, for most of the grounds of discrimination. These areas of social activity are divided into 2 categories, namely: (8)"Discrimination in work" - see Part 2 Division 2 and the corresponding divisions and parts relating to other grounds of discrimination; and (9)"Discrimination in other areas" - see Part 2 Division 3 and the corresponding divisions and parts relating to other grounds of discrimination. 136"Discrimination in work" in the AD Act includes discrimination in relation to contexts involving the following: (a)Applicants for employment and employees - see eg ss 8, 25 and 49ZYB and the cognate provisions of the AD Act; (b)Commission agents - see eg ss 9, 26; (c)Contract workers - see eg ss 10, 27; (d)Partnerships - see eg ss 10A, 27A; (e)Discrimination by local government councillors - see eg ss 10B, 27B; (f)Industrial organisations - see eg ss 11, 28; (g)Qualifying bodies - see eg ss 12, 29; (h)Employment agencies - see eg ss 13, 30. 137"Discrimination in other areas" in the AD Act usually includes discrimination in relation to each of the following areas of social activity: (a)Education - see eg s 17 and cognate provisions of the AD Act; (b)Provision of goods and services- see eg s 19; (c)Accommodation - see eg s 20; (d)Registered clubs - see eg s 20A.

Ground 2 and Words of Limitation 138In relation to relevantly similar legislation from another State, Brennan CJ and McHugh J in the High Court held in IW v City of Perth (1997) 191 CLR 1 at 14 - 15: But, given the artificial definitions of discrimination in the Act and the restricted scope of their applications, the court or tribunal should not approach the task of construction with any presumption that conduct which is discriminatory in its ordinary meaning is prohibited by the Act. The Act is not a comprehensive anti-discrimination or equal opportunity statute. The legislature of Western Australia, like other legislatures in Australia and the United Kingdom, has avoided use of general definitions of discrimination .... Those legislatures have also deliberately confined the application of anti-discriminatory legislation to particular fields and particular activities within those fields. No doubt most anti-discrimination statutes are legislative compromises, resulting from attempts to accommodate the interests of various groups such as traders, employers, religious denominations and others to the needs of the victims of discrimination. As the evils of discrimination in our society have become better understood, legislatures have extended the scope of the original anti-discrimination statutes. Many persons think that anti-discrimination law still has a long way to go. In the meantime, courts and tribunals must faithfully give effect to the text and structure of these statutes without any preconceptions as to their scope. But when ambiguities arise, they should not hesitate to give the legislation a construction and application that promotes its objects. Because of the restricted terms of a particular statute, however, even a purposive and beneficial construction of its provisions will not always be capable of applying to acts that most people would regard as discriminatory. 139Given the title and structure of the AD Act and in the light of the observations of the Court of Appeal and High Court on the nature of the prohibitions in that and similar Acts referred to above, it should be accepted that s 19 is not, on its terms and in the context of the AD Act as a whole, a general prohibition on racially discriminatory conduct and it should not be construed or applied so as to have that effect. In that sense, the appellant's contention that the expression "goods or services" in s 19 are words of limitation which forms part of ground 2 is correct. 140Consequently, it would be an error to adopt a construction of s 19 that was so broad as to render unlawful every instance of discrimination constituted by differential, detrimental treatment on the ground of race. Such a construction might effectively render the other sections in Part 2, Divisions 2 and 3 of the AD Act unnecessary. 141Although not articulated in this way, the crux of the appellant's complaint underlying ground 2 appeared to be as follows. There was a risk of falling into the error referred to in the preceding paragraph if the word "services" was taken out of its context in s 19 and construed as referring to any case where a person was treated in a manner that was potentially beneficial to the person. This risk arises because benefit and detriment function as opposites. Thus, if refusing to treat a person in a particular way, or treating the person in that way on terms, could be characterised as detrimental, it could be argued in every case that treating the person in that way must be at least potentially beneficial to the person. Consequently it could be said to follow in every case that treating persons in this way amounted to providing a service or services to those persons. This general form of reasoning could be used to bring every case of differential, detrimental treatment on the ground of race within the operation of s 19 because each instance could be said to be discrimination in the provision of services. 142Whether the appeal based on ground 2 should be upheld will, however, depend on the proper construction of s 19 taking into account not only that the words "goods or services" are words of limitation as explained above but also the text of s 19 taking the ordinary and grammatical meaning of the words of the provision in the context of the AD Act as a whole and taking into account its legislative purpose. In this regard, see the recent summary of the principles concerning statutory construction set out in Smith's Snackfood Company Ltd v Chief Commissioner of State Revenue (NSW) [2013] NSWCA 470 at [84] and the authorities cited there. In addition, it will be appropriate to consider whether there is any authority which casts light on the proper construction of s 19 or requires a particular construction to be adopted, as raised in grounds 3 and 5. 143It is now appropriate to turn to the actual text of s 19 and the provisions directly related to that section.

Proper Construction of S 19 144Section 19 relevantly refers to: (1)"a person who provides (whether or not for payment) goods or services"; (2)"to provide [someone] with those goods or services" and "[someone] is provided with those goods or services". 145In s 4(1) there is what might appear to be an inclusive definition of "services" but paragraphs (a) to (e) do not actually define that term at all because they use the word being defined to describe what is included in that term. As to paragraph (f), this paragraph appears to expand the meaning of "services" to include "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" to the extent that such access to public facilities does not fall with the ordinary meaning of "services". 146Where there was an inclusive definition of "services" in almost identical terms to paragraphs (a) to (e) in s 4(1) of the AD Act, the High Court held that "services" should be "read as having its ordinary and broad meaning" - IW v City of Perth (1997) 191 CLR 1 at 23. 147Giving a word its ordinary meaning does not, however, preclude the word deriving shades of meaning from its context and the syntax of the sentence in ways which are significant for the case in hand - Duffy v Da Rin [2014] NSWCA 270 at [30].

Ordinary Meaning of the Terms used in s 19, Context and Syntax 148In s 19, "services" in the plural is used not the singular form of the word. Drawing a distinction between service and services is something with which the law is familiar; the law differentiates between a contract of service and a contract for services. In addition, on every occasion on which the word "services" is used in s 19, it is the provision of, or the refusal to provide, the services which is the focus of attention. 149The Macquarie Dictionary (Online Ed) gives only one relevant definition of the plural form: 12. (often plural) the performance of any duties or work for another; helpful activity: medical services. 150That dictionary does provide the following relevant definitions of "service": 1. an act of helpful activity. 2. the supplying or supplier of any articles, commodities, activities, etc., required or demanded. 3. the providing of, or a provider of, a public need, such as communications, transport, etc. ... 5. the supplying or a supplier of water, gas, or the like to the public. ... 151Brennan CJ and McHugh J in IW v City of Perth (1997) 191 CLR 1 at 11, without drawing attention to the potential distinction between "service" and "services", referred to some of the meanings of "service" in the Macquarie Dictionary including some of those mentioned above as well as those with a public element such as the duty or work of public servants and supplying water, gas or the like to the public. 152The Oxford English Dictionary (Online Ed) identifies relevant meanings for the plural form as follows: 19 ... c. collect. pl. Friendly or professional assistance. 31 ... d. pl. Econ. The section of the Economy that supplies needs of the consumer but produces no tangible goods. 153This latter definition of "services" indicates that the term when combined with the word "goods" refers to those products (tangible or intangible) which supply the needs of consumers. This is significant because the term "services" in s 19 only ever occurs in the collocation "goods or services"; it never appears alone. In the heading to s 19, "services" appears in the expression "Provision of goods and services". The text of the section therefore suggests that "services" will not in this context include activities in discharge of governmental functions or statutory duties which do not have as their primary or sole function meeting the needs of consumers. The heading, to the extent that it may be relied upon under ss 34 and 35 of the Interpretation Act 1987 (NSW), supports this view. 154In addition in the OED for the singular form of the word, similar meanings to those found in the Macquarie Dictionary are given, as well as: "23 Supply of the needs of (persons, ...)". 155These meanings of "services", as illuminated by s 4(1), establish that "services" in its ordinary meaning in a context such as the present refers to those activities done for the purpose of supplying the needs of, providing assistance to, doing work for or providing help to persons. Paragraph (f) of s 4(1) has the effect that "services" also includes access to public facilities but that aspect of the meaning is not relevant to the present case. 156Although, when "services" are provided, the person to whom they are provided receives a benefit, it does not follow that in every case where activities happen to result in a benefit to a person those activities must amount to "services" provided to that person. Neither the definitions referred to above nor the illustrations given in s 4(1) support the conclusion that merely carrying out activities which may, but also may not, have a consequence which is beneficial for a person should always be said to amount to providing services to that person. Indeed, if such an approach to the construction of "services" were adopted, it might well lead to the error, referred to above, of construing s 19 so broadly that every instance of discrimination constituted by differential, detrimental treatment on the ground of race would be unlawful under that section and the remaining prohibitions in Part 2 of the AD Act would be unnecessary. It could also lead into the error of ignoring the word used in the statute, namely "services", and substituting for them an imprecise definition of "services" such any activity which is helpful or beneficial. Thus, answering the question whether classification of inmates can be said to be helpful or beneficial will not, by itself, determine whether classification of inmates constitutes "services" within the meaning of s 19. 157Furthermore and as noted above, "services" in s 19 only occurs as something that is or could be provided. The word "provide" is defined in the Macquarie Dictionary as: 1. to furnish or supply. 2. to afford or yield ... 158Both of these meanings convey the essential notion of making something available. They do not suggest in any way that "provide" includes imposing something on a person. Thus, if a governmental function or statutory duty is being performed and the persons affected have no ability to decide whether to accept or reject what is done or the outcome, it is unlikely that services are being provided in those circumstances. 159Finally, the provisions of s 19 read together with s 7 of the AD Act establish that: (1)It is the alleged perpetrator, to use the language of s 7, who must provide the services; and (2)The services must be provided to the class of persons who are in the same circumstances as, or circumstances which are not materially different from, those of the aggrieved person. 160Having regard to all of these matters, it can be concluded that the specific area of social activity identified by s 19 (insofar as it refers to services and not goods or public access) is where the alleged perpetrator (whether for payment or otherwise) makes available to the class of persons to which the aggrieved person belongs activities to supply the needs of, to do work for, or to assist or help that class of persons. When a governmental function or statutory duty is being performed for a purpose other than benefitting the relevant person and any outcome is imposed on, rather than just being made available to, that person, it is unlikely that this amounts to "services" being "provided". Subject to any contrary requirement or approach in the authorities, providing "services" should be construed accordingly. 161At this point, it is necessary to consider whether the authorities, including those referred to in grounds 3 and 5 of the appellant's notice of appeal, require a different conclusion to that reached in the preceding paragraph as to the proper construction of "services" in s 19.

Proper Construction of s 19 and Grounds 3 and 5 - Do the authorities require a different conclusion? 162The leading High Court authority on "services" in the context of anti-discrimination legislation is IW v City of Perth (1997) 191 CLR 1.

IW v City of Perth 163IW v City of Perth involved consideration of the construction of "services" in a Western Australian anti-discrimination statute which contained provision similar to ss 19, 7 and 4(1) of the AD Act. 164In that case at 13, Brennan CJ and McHugh J concluded that wide as the definition of "services" was, it was not capable of including the refusal to exercise the statutory discretion provided for under planning legislation to approve the use of premises for use other than as a shop. This conclusion was reached notwithstanding that, if the application for planning approval had been granted, there would have been a benefit to the relevant person. In the result, their Honours concluded that the appeal should be dismissed 165Brennan CJ and McHugh J held that activities of a public authority such as a local council which involved making decisions, either of a specific or a general nature, may not amount to providing "services." At 15 they held: Similarly, when a council is required to act in a quasi-judicial role in exercising a statutory power or duty, it may be inappropriate to characterise the process as the provision of a service for the purpose of the Act even in cases where the product of the process is the provision of a benefit to an individual. This is likely to be the case where the council, before making a decision, is required to consider matters that affect the public interest. In such a case, the Council may be providing a "service" in a very general sense because its ratepayers ultimately benefit from the process. But that may not be sufficient to bring the process within the scope of Part IVA of the Act. (emphasis added) 166Further, at 17 and 18 the following passages appear in their Honours' judgment: ... [T]he granting or refusal of an application was the end product of a deliberative process. Approval of an application no doubt conferred a benefit on an applicant. But it misdescribes the process to say that the Council provided a service of giving approvals. Certainly the process was not an "exercise of a discretion to give planning approval to allow the use of premises for a particular purpose in a specific locality" as the Tribunal held. Consequently, the Tribunal erred in law and the Full Court, although for different reasons, was correct in setting aside the Tribunal's decision. (footnotes omitted) (emphasis added) and The process by which the Council considers applications for approvals is not in our view arguably describable as a service that it provides to applicants for planning approval. Rather it is a power to process applications for the protection and general benefit of the residents of the City. ... If within the statutory period, the Council considers the application, it is bound to consider various matters and interests which may be contrary to the interests of the applicant and which may result in the refusal of the application. If the application succeeds, the applicant no doubt receives a benefit or advantage. But not every process or activity which results in a benefit or advantage to an individual is a service that is provided to that individual. When the deliberative and quasi-judicial nature of the application process is identified and analysed, it cannot sensibly be described as a "helpful activity" provided by the Council to applicants for planning approval. The Council is an adjudicator, not a servant of an applicant. (emphasis added) 167Thus, in ordinary English usage the mere fact that one of the possible outcomes from the exercise of a statutory duty by a public authority may be to benefit a person does not have the consequence that "services" are thereby being provided to the person. 168In IW, Dawson and Gaudron JJ took a slightly different approach concluding at 24 that the relevant "service" was the exercise of the planning approval discretion and that: Once the service in issue is identified as the exercise of a discretion to grant or withhold planning approval, a case of refusal to provide that service is not established by showing that there was a refusal of planning approval. Rather it is necessary to show a refusal to consider whether or not approval should be granted. 169The High Court does not appear to have considered whether "service" and "services" might have different shades of meaning which were relevant on that occasion. They did conclude that "[t]he word 'services', in its ordinary meaning, is apt to include the administration and enforcement by the City of Perth of the Planning Scheme" and thus it was correct to hold that the City was "providing a service to residents". 170Whilst it can be accepted that consideration of planning applications by a public authority is generally beneficial to the community as a whole, a refusal of the application for approval would appear to be detrimental to the applicant for approval. The judgment of Dawson and Gaudron JJ does not suggest that their conclusion was based upon the consideration that because the potential for the exercise of the discretion in favour of giving planning approval which would be beneficial to the applicant for approval, exercising the discretion was providing "services". 171In the way that their Honours identified the services in question, they held that in order for there to be a refusal by the City of Perth to provide services as alleged, it was necessary to show a refusal to consider whether or not approval should be given. Since the City had considered and refused the application, it was not possible in that case to conclude that that there had been a refusal to provide the services in question. Dawson and Gaudron JJ agreed with Brennan CJ and McHugh in the result that the appeal should be dismissed. 172In IW, Gummow J also agreed that the appeal should be dismissed. At 39, his Honour held in relation to the general principles applicable to the construction of "services": There is ample authority that remedial legislation, such as that found here, is to be accorded "a fair, large and liberal" interpretation rather than one which is "literal or technical". These were the phrases used by Thorp J in Coburn v Human Rights Commission. They are of importance in this case, particularly in construing the term "services" as it appears in the statutory phrases "a person who ... provides goods or services" and "by refusing to provide the other person with those goods or services" in s 66K of the Act. Nevertheless, as will appear, the legislation must be read as a whole and such a term must be construed in the context in which it appears. The circumstance that "services" is used in what might be called human rights legislation does not necessarily indicate that it bears, to its full scope, the potential meaning which the legislature might have given it. (footnotes omitted) This is consistent with the approach whereby s 19 should be construed as establishing a specific areas of social activity within which racial discrimination is rendered unlawful rather than a general prohibition on racial discrimination. 173Gummow J also drew attention to the fact that conduct may have a duality of purpose so that it can constitute both the discharge of a statutory duty and the provision of services, at 44 as follows: The question arises whether the circumstance that, in dealing with applications for approval, the Council, as responsible authority, exercises its statutory functions and duties under the town planning law has the consequence that the Council is not also engaged in the provision of services to applicants within the meaning of the anti-discrimination legislation. An issue of characterisation is involved. Each statute operates in aid of particular ends considered important by the legislature. There is no reason in logic or good sense to deny the proposition that the Council may be engaged in the provision of services, not only to the community as a whole, but also to individual applicants who invoke the exercise of the powers of the Council under the town planning law. There is no dichotomy here between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions. (footnotes omitted) 174Whether in a particular case, however, there is such a duality of purpose and while discharging a statutory duty the public authority is also providing services must turn on the particular circumstances of the case. 175In IW, Toohey and Kirby JJ dissented. 176Although the majority who dismissed the appeal did not all agree on the construction and application of the word "services", the reasons for judgment of Brennan CJ and McHugh J, Dawson and Gaudron JJ and Gummow J and their conclusions in that particular case do not require a different conclusion on the proper construction of s 19 to be reached from that set out above.

Contreras Ortiz 177In Contreras Ortiz v Commissioner Department of Corrective [2008] NSWADT 308, the Administrative Decisions Tribunal (the ADT) held at [115] that: 115 ... In our view, a review of the preceding authorities permits the following conclusions in relation to the construction of the term "service" in s 4 of the AD Act: (a) in discharging statutory duties and functions and in exercising statutory powers in the public interest, a body may also be engaged in the provision of services to particular individuals; that is, as Gummow J observed in IW at 44, there is no dichotomy between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions; (b) it is erroneous to posit a distinction between the provision of services pursuant to a statutory discretion and the situation where no discretionary element exists; cf Raphael FM in Rainsford; (c) as ameliorating legislation, the AD Act should be construed beneficially: Director-General, Department of Community Services v MM [2003] NSWSC 1241 and authorities cited at [24] to [27]. The term "service" is capable of broad application, and should be read in s 4 as having its ordinary and broad meaning: eg IW per Dawson and Gaudron JJ at 23; (d) amongst the ordinary meanings of the term "service"" are the action of serving, helping or benefiting; conduct tending to the welfare or advantage of another: Oxford English Dictionary (2nd Ed) XV, 36; an act of helpful activity: Macquarie Dictionary (3rd Ed); and (e) the touchstone for a service is whether is whether the act is helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs: Sundberg J in Rainsford. 178The ADT in that case then went on to observe at [128] that it was not necessary for it to decide whether classification of inmates "amount to a service within the meaning of ss 4 and 19 of the [AD Act]" but nonetheless expressed the view at [129]: 129 Accordingly, whilst we have no doubt that the classification process is absolutely fundamental to ensuring the security of the correctional system, we are also satisfied that classification can also be properly characterised as helpful or beneficial to inmates. Accordingly, we find that the respondents provided the service alleged in paragraph 11(e) of the Points of Claim ["varying the classification of inmates for the purposes of the provision of appropriate development programs"] and ... they also provided the service alleged in paragraph 11(f) ["considering whether the classification of inmates should be varied for the purposes of the provision of appropriate development programs"]. 179It should be noted that these were not the alleged services which the parties both agreed were the subject of this appeal. In addition, the ADT appears to have reasoned that because the activities could be characterised as "helpful or beneficial to inmates" they were accordingly "services" for the purposes of s 19 of the AD Act. 180For the reasons given above, I do not accept that every activity which could be characterised as beneficial or helpful to a class of persons constitutes "services" provided to that class of persons within the meaning of s 19. Having regard to the ordinary meaning of the terms in that provision and their context and purpose, providing "services" involves more than just engaging in activities which may be beneficial or helpful. The words of the section and the authorities, including IW and those referred to below, establish that activities which have contingent and consequential benefits for a class of persons but which are not performed for the purpose of benefiting that class are unlikely to amount to "services" provided to that person, especially where the person has no choice whether to accept or reject the outcome and where the activities are in performance a governmental function or of a statutory duty. The approach taken by the ADT in Contreras Ortiz appears to involve impermissibly substituting the words "activities which can be characterised as helpful or beneficial" for the word "services" without regard to the shades of meaning derived from the context, the syntax of the sentence and the purposes of the legislative provision including the purpose of defining the specific area of social activity in which racial discrimination was to be rendered unlawful.

Authorities Referred to in Grounds 3 and, implicitly, in ground 5 181In ground 3, the appellant also drew attention to a decision of the House of Lords and a number of first instance Australian decisions dealing with construction of "services" in the context of anti-discrimination legislation. Ground 5 was based upon a proposition derived from one of those first instance decisions, Rainsford v Victoria (2007) 167 FCR 1. It was contended that these authorities had not been properly considered by the Tribunal below and as a result it fell into error by holding the classification of inmates constituted providing "services" within the meaning of s 19. 182The respondent submitted that the Tribunal had referred to those authorities and that they were correctly distinguished or taken into account appropriately. Thus, no error was disclosed. 183It is true, as the respondent submitted, that these authorities were referred to by the Tribunal at first instance at [159] of its reasons for decision and some of them were discussed in a little more detail at [115] to [120]. The appellant's submission was not, however, that they had not been considered at all but rather that the authorities had not been properly considered or applied. Essentially at [159] the Tribunal below found that the fact situations in those cases were not readily comparable with the present case and did not consider them further. 184In order to deal with grounds 3 and 5, the Appeal Penal will address each decision in turn. 185In R v Entry Clearance Officer, Bombay, Ex parte Amin [1983] 2 AC 819, the House of Lords considered whether the operation of the special voucher scheme under the Immigration Act 1971 (UK) in that case breached s 29 of the Sex Discrimination Act 1975 (UK). The relevant conduct was that of an entry clearance officer in Bombay refusing to grant to the appellant a special entry voucher which would have allowed her to enter the United Kingdom. 186Subsection (1) of s 29 rendered it unlawful "for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a woman who seeks to obtain or use those goods, facilities or services by [doing certain things]". In s 29(2) "examples of the facilities and services mentioned in subsection (1)" were given and these included "(g) the services of any profession or trade, or any local or other public authority". 187At 835, Lord Fraser of Tullybelton (with whom Lords Keith of Kinkel and Brightman agreed) held that "the entry clearance officer in Bombay was in my opinion not providing a service for would-be migrants; rather he was performing his duty of controlling them." 188In so far as the legislation and circumstances in Amin are sufficiently analogous to make the conclusion of their Lordships relevant in the present case, Lord Fraser's conclusion establishes that when an officer of a public authority was performing a statutory or other public duty which involved a decision controlling whether a person who was a would-be migrant could enter the UK, this did not amount to providing "services", notwithstanding that a favourable decision by the officer could be said to benefit or help the person. Although the reasoning is not elaborated upon, it appears that the House of Lords concluded that the purpose of performing the statutory duty was not to assist or help the would-be migrants but was rather to control their entry into the UK in the public interest and accordingly the activities were not "services". 189The decision in Amin is consistent with the construction set out set out above and emphasises that even though a decision by a public authority might have a contingent and consequential benefit for the person affected by the decision, if it went in the person's favour, this does not mean that the decision and the decision making process in that case constituted providing "services". 190In Commissioner of Police, NSW Police Force v Estate of Russell [2001] NSWSC 745 Sully J concluded that in pursuing Mr Russell and arresting him the police officers involved were providing "police services" within the meaning of, and as described in, s 6(3)(a) and (b) of the Police Service Act 1990 (NSW) but these services were being provided to the community at large and not specifically to Mr Russell. It was also held, however, that as soon as Mr Russell was arrested, the relevant police officers "became thereupon charged with a public duty to provide to the late Mr Russell police services by way of protection of his person from injury or death, and the protection of his property from damage [as described in s 6(3)(b)]" but failed to do so. That failure was held to amount to a refusal to provide services within s 19 of the AD Act - see [44] and [45]. 191The decision in Russell turned on the particular provisions of the Police Service Act and the proposition that "police services" as defined in that Act were also "services" for the purposes of the AD Act. There is no similar argument advanced in the present case. In any event, Sully J's decision is not inconsistent with the conclusions as to the proper construction of s 19 set out above. 192The authorities which involve factual situations which are more closely analogous to the present case are Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 and Rainsford v Victoria (2007) 167 FCR 1. 193In Robinson v Commissioner of Police, NSW Police Force, the Federal Court of Australia had before it a complaint of disability discrimination in breach of s 24 the Disability Discrimination Act 1992 (Cth) as in force in March 2009 (the DD Act). The case arose out of the way in which the applicants, Mr Robinson, a man with a mental illness, and the manager of his estate under the Protected Estates Act 1983 (NSW), were treated in the course of and following upon the arrest of Mr Robinson in relation to certain offences. One of the issues that arose in that matter was expressed by the Court as being: "Was the respondent [the NSW Commissioner of Police] providing 'services' to each of the applicants ... for the purposes of s 24(1)". 194Section 24(1) of the DD Act was as follows: 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. 195In s 4 of the DD Act there was an inclusive definition of "services" which was very similar, but not identical, to that in s 4(1) of the AD Act. 196Yates J held at [168], consistently with the decision in Russell, that the Police officers were not providing services Mr Robinson when pursuing and arresting him. Further it was held that even after his arrest when maintaining custody over him in the ambulance transporting him to the hospital or at the hospital they were not providing him with "services". 197His Honour then went on to deal with what was described at [170] as the "only fully articulated claim regarding unlawful discrimination in relation to the provision of 'services' under s 24 of the Act [which] concerns 'dealing with' Mr Robinson's bail application". 198At [178] to [180], Yates J held: 178 I have come to the conclusion that "dealing with" Mr Robinson's bail application did not involve the provision of "services" within the meaning of s 24 of the Act. I accept that the word "services" is a word of generality and should be given a broad meaning consistent with the objects of the Act. I also accept that the word is apt to cover activities that are helpful and beneficial. No doubt the granting of bail to Mr Robinson was, in a sense, helpful and beneficial to him, as it might be to all accused persons, compared with the alternative of remaining in custody. But in no true sense can an authorised officer acting pursuant to the duties imposed by s 18 of the Bail Act, and its related provisions, be said to be providing services to accused persons, such as Mr Robinson. 179 The applicants submit that the facts of the present case are "not dissimilar" to the facts in IW because what is involved is an application to a government body for the exercise of power to grant consent to a course of action that would confer a benefit on an applicant. In my view the facts and circumstances of IW are far removed from the facts and circumstances of the present case. 180 When granting police bail an authorised officer is granting authorisation to an accused person to be at liberty instead of remaining in custody. However, that liberty is not unregulated. It is liberty under the Bail Act: see the definition of "bail" in s 4(1). The granting of bail is not so much the provision by a government authority of services to accused persons, but the exercise of government authority, in the operation of the criminal justice system, to control such persons and to regulate their liberty. It is a modification of the state of liberty that is enjoyed by others. Aspects of activity within the exercise of that control, such as the deliberative process of an authorised officer determining whether to grant bail and, if so, on what conditions, and the provision of information to be used for the purposes of that deliberative process, do not take on any different character so as to become, separately, services provided to accused persons. All of these activities are inseparable from the mechanism of control that is exercised over accused persons, whose liberty is only that which the Bail Act itself provides for. As Buxton LJ observed in Gichura v Home Office [2008] EWCA Civ 385; [2008] ICR 1287 at [17], "...it would be a rather strange application of the concept of providing a service to say that one is providing a service to somebody when one is in fact restricting them from doing what they want to do". See also Rainsford [2007] FCA 1059; 167 FCR 1 at [78]. (emphasis added) 199The consideration and determination of a bail application is, in my view, relevantly analogous to consideration and determination of an inmate's classification under cl 22 of the C(AS) Reg. 200Yates J's reasoning and conclusions support the view that in its ordinary meaning or "true sense" (to use his Honour's words), the concept of "services" does not extend to all activities which might produce a benefit for the person alleging discrimination. The contingent and consequential benefit of being freed on bail if the bail decision went in Mr Robinson's favour was not sufficient to lead to the consideration and determination of the bail application being classified as providing "services" for the purposes of anti-discrimination legislation. Moreover, the reasoning makes manifest that there is a difference between a public authority providing services and "the exercise of government authority, in the operation of the criminal justice system, to control such persons and to regulate their liberty". The difference appears to turn, first, upon the fact that bail decisions are generally designed to serve the public interest in maintaining the security of the community and the alleged victims as well as ensuring that persons charged with criminal offences appear to answer those charges. Their purpose is not primarily to benefit the person charged with an offence except to the extent that that can be achieved without compromising security or the integrity of the criminal justice system. Secondly, a bail decision is imposed upon a person who has been charged with an offence. That person cannot decide whether to accept or reject the consequences of the bail decision. 201Yates J's decision was the subject of an appeal to the Full Court of the Federal Court in Robinson v Commissioner of Police, New South Wales Police Force [2013] FCAFC 64. At [145], the Full Court held: 145. However, it is to be noted that there was no oral argument specifically directed to the two key legal issues, namely, the question of whether or not there was a specific provision of 'services' for the purposes of s 24 of the DDA and, secondly, whether or not there was, in any event, 'discrimination' as defined under the legislation. On these central issues we have considered the reasons of the primary judge and find no reason to doubt their correctness. 202At [165] to [168], the Full Court was required to consider whether the approach adopted by Yates J was too narrow and held: Too narrow an interpretation 165 The next point advanced on appeal was the complaint by the appellants before the primary judge was not confined to the concept of provision of a service. A repeated theme in the general complaints of the appellants is that the primary judge narrowed the scope of the case too much. In fact, his Honour confined the scope of the case to the scope of the complaint before the Commission or to matters substantially similar. This is entirely in accordance with the provisions of the AHRC Act and the DDA. The difficulty for the appellants is that discrimination is not an open ended complaint at large but has to be linked to certain circumstances. In this instance, the circumstances were said to be those of the provision of a service within the meaning discussed in s 24 of the DDA. 166. There is no doubt that the primary judge considered this question in detail, fairly and entirely accurately. For a complaint of discrimination to succeed, the complainant must identify that the complaint falls within one of the relevant areas of direct and indirect discrimination in certain fields of public life. The area identified by the appellants had been with respect to 'provision of services'. 167 The appellants have argued that the primary judge should have considered a broader ranging form of discrimination than that on which they expressed or relied. That was not a course open to his Honour in the way the complaint before him was conducted. As is made clear on the appeal by senior counsel for the Police Commissioner, the DDA is not a law which looks at discrimination at large. The DDA is specific to the circumstances which fall for consideration. Moreover, s 42PO(3) of the AHRC Act provides that a Federal Court action arising out of a terminated complaint to the Commission must be the same unlawful discrimination (or the same in substance) as that which was the subject of the terminated complaint. On these central issues we have considered the reasons of the primary judge and find no reason to doubt their correctness. 168 This ground cannot be made out. 203Thus, the Full Court of the Federal Court found no reason to doubt the correctness of Yates J's decision and endorsed without reservation the approach taken in regard to the construction and application of the word "services". 204These decisions in Robinson, once again, do not suggest that the construction of s 19 set out above is incorrect. Indeed, they provide considerable support to the view that classification of inmates, like the granting of bail in the operation of the criminal justice system, involves making decisions in order to control inmates and to regulate their liberty and not in order to benefit them. Persons charged with offences and inmates have bail and classification decisions imposed on them. They have no choice whether to accept or reject the decisions or the process by which they are made. For these reasons, neither bail decision nor classification decision should be seen as constituting the provision of "services" within the meaning of the relevant statutes. 205The fact that persons charged with offences might receive the benefit of being freed on bail, if the decision was in their favour, did not have the consequence in Robinson that considering and deciding bail applications amounted to the provision of "services" to those persons. The reasoning of Yates J indicates that where the benefit to a person was contingent and consequential and not the purpose of the activities in question, those activities are unlikely to fall within the meaning of "services" in s 19 of the AD Act or similar provisions. Similar reasoning can be applied in the present case. 206In Rainsford v Victoria (2007) 167 FCR 1, Sundberg J was required to consider the circumstances of an inmate in the Victorian prison system and whether transportation of prisoners between prisons and between prison and court or accommodation of a prisoner in a cell amounted to the provision of services within s 24 of the DD Act. His Honour accepted at [79] that facilities provided by those with statutory responsibility for confining and managing inmates may amount to providing "services" for the purposes of the DD Act but held that neither transportation nor accommodation of prisoners involved the provision of services within the meaning of s 24. 207At [73], the Court accepted that it was a useful test to ask whether the act said to amount to "services" involved helpful or beneficial activity, but in a qualified way. It was noted that most activities are helpful or beneficial to someone and that in itself did not make them "services". The relevant question was whether the act or activity was helpful or beneficial to the relevant class of persons to which the person alleging discrimination belonged. 208At [77] to [79], Sundberg J held: 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 re-classified 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", to adopt the words of Underwood J in Secretary of the Department of Justice and Industrial Relations v Anti-Discrimination Commissioner [2003] TASSC 27; (2003) 11 Tas R 324 at 341. 79 I am conscious of the arguments made by Mr Rainsford relying on the provisions of the Corrections Act and the Prison Services Agreement; they are referred to in the passage of the judgment of Kenny J in the Full Court in this matter that I have set out at [65]. 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. (emphasis added) 209On the appeal from Sundberg J's decision, the Full Court of the Federal Court observed in Rainsford v State of Victoria [2008] FCAFC 31 at [9]: 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. ... 210A comment such as that of the Full Court provides no substantial assistance or guidance and does not amount to a conclusion that Sundberg J was wrong. 211Two initial propositions can be drawn from the passages quoted from Sundberg J's decision. First, the ordinary meaning of "services" does not include "a fundamental integer of a system over which those affected have no or almost no control" - [77]. Secondly, accommodating an inmate in a correctional centre should not be described as the provision of services to the inmate. It should rather be described as an essential element of the exercise of a statutory duty - [78]. 212These situations of transport and accommodation of inmates in prison considered by Sundberg J have obvious similarities to the classification of inmates and accordingly the reasoning has considerable force in the present case. The reasoning certainly does not undermine the conclusion on the construction of s 19 reached above. Indeed, the emphasis that Sundberg J gives to the lack of control by those affected by the decision and the fact that transportation and accommodation decisions are in effect simply imposed on an inmate provides support for view that providing services involves making those services available to a person rather than imposing them. 213The passages quoted from Sundberg J's decision are also relevant to ground 5 relied upon by the appellant and it is appropriate to deal with that ground at this point. 214Ground 5 was to the effect that the Tribunal erred in finding that security classification was the provision of "services" to an inmate within s 19 since the prison system could not function without security classification and security classification is an inherent part of incarceration. The submission that where an activity was something without which the prison system could not function and was an inherent part of incarceration and consequently that activity did not constitute the provision of "services" is derived from [77] of Sundberg J's judgment. 215Sundberg J observed at [77] that the prison system in Victoria simply could not function without prison transport and on that basis concluded that it was not ordinary English usage but rather was "an artificial use of the word service" to apply it prisoner transport. This was apparently because prisoner transport was a "fundamental integer of a system over which those affected have no or almost no control". 216These observations on the ordinary English meaning of providing "services" are consistent with and support the conclusion concerning the proper construction of "services" in the context of s 19 referred to above.

Conclusion on Proper Construction of Providing "Services" in s 19 217In my view, none of these authorities, apart from Contreras Ortiz if it were accepted as correct, provides a basis for departing from, and indeed they support, the conclusions that for the purposes of s 19 of the AD Act: (1)providing "services" to a person involves making available to the class of persons to which the aggrieved person belongs activities to supply the needs of, to do work for, or to assist or help that class of persons; and (2)when a governmental function or statutory duty is being performed for a purpose other than benefitting the relevant class of persons and any outcome is imposed on, rather than just being made available to, that person, it is unlikely that this will amount to "services" being "provided" in the relevant sense. 218Further, the authorities establish that merely because an activity might provide for some persons contingent and consequential benefits that, of itself, will not necessarily provide a basis for holding that the activity constituted "services" for the purposes of s 19 of the AD Act. 219To the extent that the Tribunal did not adopt such a construction of "services" in s 19, it erred as contended in grounds 2, 3 and 5. What follows from this conclusion will depend upon the application of this construction of s 19 to the facts of the present case.

Application of s 19 in the Present Case 220The identification or description of the activities alleged to constitute "services" in a case such as the present is a question of fact - Waters v Public Transport Corporation (1991) 173 CLR 349 at 361, 394 and 404. In this case, the services alleged to have been provided by the appellant were the activities involved in the classification of male inmates. The findings of fact concerning those matters which should be made are set out above and the evidence of Mr Halloran and Mr Grant should be accepted. 221Clause 22(1) of the C(AS) Reg imposed a statutory duty to classify male inmates. That duty was carried out by the Commissioner of Corrective Services or his delegates on behalf of the appellant and it had to be carried out from time to time as part of the case planning process and by such times as permitted the classification to be indicated in the inmate's case plan. The case plans were to be provided at the times required under cl 12 and other clauses of the C(AS) Reg. 222A male inmate could not choose whether or not he would accept a classification. In that regard, a classification was unlike development programs offered by the appellant to inmates. Under cl 13(1)(c) of the C(AS) Reg, these were "programs in which the inmate should be encouraged to participate". Implicit in cl 13(1)(c) is that the programs were made available to inmates but there was no duty, statutory or otherwise, to participate in them. 223Classification of a male inmate into one of the 7 categories listed in cl 22(1) of the C(AS) Reg was for the purpose of maintaining security, in the sense of the good order of the correctional centre in which the inmate was held, the safety of the inmate and other inmates, the safety of staff and the safety of the community at large. Classification also had the purpose or consequence of restricting the development programs for which an inmate was eligible to those programs consistent with his security classification. An inmate's classification was determined solely on the basis of security considerations. The evidence established that apart from his security needs, any benefit or help to a male inmate was not a relevant consideration in determining his classification. That is not to say that benefit to an inmate was not relevant in determining the development programs in which he should be encouraged to participate as part of the case plan prepared for him once his classification had been determined. Making available appropriate development plans to inmates did have the purpose of benefitting or helping inmates. 224On the ordinary English meaning of the words used in s 19, a person is not described as being provided with services, if the person has no control over the alleged services or over whether or not they are accepted. That is the situation which applied in relation to the classification of male inmates. Inmates had no control over the classification process or outcome. They could not decide whether or not to accept the classification or its consequences. 225The security category into which an inmate is classified under cl 22(1) of the C(AS) Reg is determined by the needs of the system and the protection of the community, not the help or benefit which it might provide to the inmate. Consequently, classification of inmates should not be characterised as constituting activities to supply the needs of, to do work for, or to assist or help the inmate. Thus, it should not be taken as falling within the description of "services" in s 19. 226The fact that if a male inmate was given a C3 classification he would become eligible for development programs such as external leave programs and this could be seen as a benefit for the inmate does not mean that classification of inmates is an activity engaged in to supply the needs of, or to assist or help, inmates. In the case of the decision whether or not to grant bail in Robinson and the decision of the entry clearance officer in Amin, it was possible that the person alleging discrimination could have obtained a benefit from the decision, if it was favourable. Notwithstanding this, in neither of those cases was it held that this meant that the public authority was relevantly providing "services". The benefit in those cases was contingent and consequential. Conferring that benefit was not the purpose for which the activity was undertaken. Any benefit that might arise out of being classified as C3 or lower was similarly contingent and consequential. As those cases demonstrate, such a benefit does not provide a basis for concluding that classification of inmates constituted making available activities or assistance to help or benefit an inmate in a relevant sense. 227Both the Tribunal below and the respondent relied upon the proposition that simply because classification was the exercise of a statutory duty it did not follow that it could not, at the same time, also involve the provision of "services" within the meaning of s 19 of the AD Act. As Gummow J explained in IW at 44 the activities in question may have a duality of purpose. An example would be where a local council had an express statutory duty to provide a library or garbage collection for the public or for rate payers in the local government area for which the council was responsible. In that case, the activities involved in providing a library or garbage collection could properly be characterised as activities to supply the needs of, to do work for, or to assist or help the public or rate payers in that area. Any benefit would not be contingent or consequential. The benefit was the purpose for which the activities were engaged in. Thus, not only was the council discharging its statutory duty when it provided a library or garbage collection it could also be said to be providing "services" within the meaning of a provision such as s 19 of the AD Act. 228In seeking to apply this reasoning concerning duality of purpose in the present case, the respondent placed considerable emphasis, as did the Tribunal below, on the statement at cl 22(1) of the C(AS) Reg that "[e]ach male inmate is to be classified in one of the following categories for the purposes of security and the provision of appropriate development programs". It was then submitted that this established that classification of inmates had two purposes. One focused on security and the other on the provision of beneficial development programs for inmates. 229It was then argued that although classification of inmates to the extent that it was carried out for security purposes involved the discharge of a statutory duty rather than the provision of services, to the extent that it was carried out for the purpose of providing appropriate development programs, it amounted to providing services to those affected because access to those programs was beneficial or helpful. Thus, classification of inmates should be characterised as providing services to those inmates being classified because of the duality of purpose. 230Both as a matter of ordinary English usage and authority, discharging a statutory duty can co-exist with the provision of services. The classification of inmates is, however, not such a case. Clause 22(1) does not support the conclusion for which the respondent contends. 231Assuming for the sake of the argument that under cl 22(1), classification had a duality of purpose, neither purpose had the object of benefitting the inmate in question. The two purposes were: (1) to maintain security; and (2) to restrict the development programs provided to an inmate to those programs which were "appropriate" in the sense of being consistent with the inmate's classification. Security factors were the considerations which were relevant both to determining an inmate's classification and to determining which development programs were "appropriate" for the inmate having regard to his classification. This is consistent with and is inherent in the nature of classification of inmates. 232Benefit or help to the inmate was not part of the purpose of classification. Any benefit that might flow from a favourable classification was merely a contingent and consequential benefit. As in Amin and Robinson, the correct conclusion in this case is that the exercise of the statutory duty to classify inmates did not also involve the provision of services to inmates within the meaning of s 19 of the AD Act. 233Even if, contrary to my approach and conclusions in respect of ground 4, it were accepted that benefit or help to an inmate was part of the reason why inmates were assigned classifications or why inmates were given the least restrictive classification in the light of security considerations, it would not follow that classification of inmates was providing "services" within s 19. Classification of inmates was a statutory duty and a governmental function. The primary function of classification was maintenance of security. Any purpose of benefitting inmates was at most secondary or subsidiary. Furthermore, inmates had no ability to decide whether to accept or reject their classification. In these circumstances and having regard to the analysis both of the ordinary meaning of "services" and "provide" and the authorities set out in detail above, inmate classification would still not fall within the specific area of social activity identified in s 19 of the AD Act.

Conclusion on Appeal 234For these reasons, I am of the view that inmate classification should not be found, on the ordinary meaning of the words used in s 19 and having regard to the relevant authorities, to constitute providing "services" to inmates within the meaning of that section. 235Like the determination of a bail application which was considered by Yates J in Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 at [180], inmate classification is not so much the provision by a public authority of services to an inmate but rather it is the exercise of authority (in this case conferred by the C(AS) Reg) to control inmates and to regulate their liberty and their confinement in a corrective centre. The benefits which may (or may not) flow from a bail decision or a classification decision do not render these activities "services" provided to the persons affected by the decisions. 236It follows that the conclusion of the Tribunal below at [158] that classification of inmates constituted "services" that were provided to inmates was erroneous. The Tribunal's error resulted from: (1)the failure to properly construe and apply s 19 on the bases identified in grounds 2, 3 and 5; and (2)the errors in relation to the facts of this case on the bases identified in relation to ground 4. 237Consequently, the appeal based on grounds 2, 3, 4 and 5 should be allowed and it should be concluded that classification of inmates did not amount to providing "services" within the meaning of s 19 of the AD Act. 238It was not in dispute that, if the classification of inmates did not amount to providing "services" within the meaning of that section, orders 1 and 2 made by the Tribunal below should be set aside. Order 3 was an order otherwise dismissing the complaint. In the light of the conclusions above, it follows that the Tribunal below should have dismissed the whole of Mr Whiteoak's complaint under s 108(1)(a) of the AD Act. If such an order were made, there is no reason why order 3 made by the Tribunal below should not also be set aside along with orders 1 and 2.

Orders 239For these reasons, in my view the orders of the Appeal Panel should be: (1)Leave to appeal is granted in respect of ground 4 of the appellant's grounds of appeal. (2)The appeal is allowed. (3)The orders made by the Tribunal on 11 April 2014 are set aside. (4)The complaint is dismissed in whole, under s 108(1)(a) of the Anti-Discrimination Act 1997. 240PROF CHESTERMAN, Principal Member: I have the misfortune to differ from the Appeal Panel's decision at [254] in this matter. In brief, my reasons are as follows. 241A possible, though by no means inevitable, consequence of receiving a C3 classification is that the inmate concerned will participate in one or more of the 'Inmate Services and Programs' provided by the Commissioner of Corrective Services. According to cl 57 of the current C(AS) Reg (quoted by the Tribunal below at [111]), these services and programs will: ... (b) offer the inmate an opportunity to develop skills, behaviours and attitudes that lessen the likelihood of the inmate re-offending, or (c) contribute to the inmate living in society after release from custody, or (d) promote the health, safety and well-being of the inmate. 242Having regard to section 2A(1)(a) and (d) of the C(AS) Act and cl 22 of the C(AS) Reg (quoted by the Tribunal at [109] and [110]), I consider that these 'services and programs' provided by the Commissioner to some of the inmates of correctional centres in New South Wales are 'services' within the meaning of sections 4 and 19 of the AD Act. If the Commissioner were to withhold, save in 'exceptional circumstances', the benefit of any such services from any inmate who had received a C3 classification, on the ground that he or she belonged to a particular race, I have little doubt that this would constitute unlawful discrimination under section 19(b) of the AD Act. 243The question to be determined in this appeal is however, whether the classification process administered by the Commissioner was, in the circumstances of the present case, a 'service'. It is by virtue of this process that, at the relevant time, some inmates were declared eligible (so long as other conditions were also satisfied) to receive the benefits associated with the services and programs provided for in cl 57 of the C(AS) Reg, while other inmates were declared ineligible. 244If the classification process (or some comparable process for distinguishing between inmates) did not exist, it seems likely that no inmate at all would have been eligible, to the extent that I have just indicated, to receive these benefits. The primacy that is accorded, for good reasons, to security in determining classifications is enough to confirm this. The classification process therefore operated as a gateway to 'services' provided by the Commissioner, through which some, but not all, inmates might pass. I regard the provision of this 'gateway', in appropriate cases, as a purpose of the classification system, and not merely as 'contingent and consequential' (to quote the phrase employed above at [226]). 245This last observation is corroborated by section 18.1 of the ELP Policy (quoted above at [107]). To my mind, it is quite compatible with the findings by the President that in determining classifications the Commissioner's delegates (a) treated security as the 'overriding' concern and (b) did not give consideration to whether an inmate seeking C3 classification would, if successful at this stage, would also succeed in gaining access to any of the Inmate Services and Programs provided by the Commissioner. But the President's observation, at [109], that the task of classifying inmates involved 'assigning the least restrictive category consistent with the applicable security considerations to an inmate' indicates that security was not the sole concern. It would, in my opinion, be a breach of duty for a delegate of the Commissioner to apply consistently the principle that security was actually the sole concern and accordingly to refuse to grant C3 classification to any inmates, even those who manifestly could be trusted not to abscond and were otherwise entirely qualified to receive this classification. 246In IW v City of Perth (1997) 191 CLR 1 (discussed above at [163]-[176]), three of the five judges constituting the majority in the High Court were of the opinion that in maintaining a procedure for determining development applications the respondent Council was providing a 'service'. At 23, Dawson and Gaudron JJ said: 'The word "services', in its ordinary meaning is apt to include the administration and enforcement by the City of Perth of the Planning Scheme.' Gummow J, having pointed out at 44 that there was 'no dichotomy here between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions' , went on to say (at 44-45) that 'the Council, as executive organ of the City, was providing services whether it granted or refused a particular application for consent'. The opinion of one of the two dissenting judges was similar: see Toohey J at 28. 247Only Brennan CJ and McHugh J held that the process whereby the Council considered applications for approval was not a 'service' provided to applicants. At 18, they said: ... not every process or activity which results in a benefit or advantage to an individual is a service that is provided to that individual. Where the deliberative and quasi-judicial nature of the application process is identified and analysed, it cannot be sensibly described as a "helpful activity" provided by the Council to applicants for planning approval. The Council is an adjudicator, not a servant of an applicant. 248The significance, in the present context, of these rulings by Dawson, Gaudron and Gummow JJ is that they demonstrate the following: (a) a formal process under which a governmental authority, exercising powers conferred by statute, makes decisions rendering individuals eligible to obtain specified benefits may constitute a 'service'; and (b) this may be the case even when many of these decisions deny such eligibility to the applicant. 249I acknowledge that the Federal Court's decision in Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 (which unfortunately the Tribunal below did not discuss) may appear to govern the present case and to require a decision in the Commissioner's favour. 250In his discussion of this case (see [193]-[205] above), the President lays emphasis on the similarity between classifying inmates and deciding whether bail should be granted, describing each of them (at [204]) as 'the exercise of government authority, in the operation of the criminal justice system...'. He points out (at [205]) that in Robinson the fact that accused persons might receive the benefit of being freed on bail if their application succeeded was held not to be sufficient to justify the conclusion that the making of bail determinations was a 'service' to those persons. Also at [205] the President interprets the Federal Court's judgment as indicating that 'where the benefit to a person was contingent and consequential and not the purpose of the activities in question, those activities are unlikely to fall within the meaning of "services" in s 19 of the AD Act or similar provisions'. 251In my opinion, however, Robinson is distinguishable from the present case for two reasons. First, a decision to grant bail to an accused person, unlike a decision to grant a C3 classification to an inmate, does not constitute a step in rendering the person concerned eligible to receive a 'service' (such as participating in a development program) provided by the decision-making authority itself. The conditions regularly attached to grants of bail, such as a requirement to report regularly to a police station, do not involve the provision of any 'service'. Secondly, the provision of what I have called a 'gateway', in appropriate cases, to 'services' such as participation in a development program must in my opinion be treated as a purpose of the classification system, not merely as 'contingent and consequential'. My arguments in support of these two propositions about the classification system are outlined above. 252It is for the foregoing reasons that I have asked, after careful consideration and with a good deal of hesitation, for these dissenting observations to be included in the reasons published by the Appeal Panel. 253Dr FIELD, General Member: I agree with the President's reasons and conclusions and I concur in the making of orders in the terms proposed in [239] above.

Appeal Panel's Decision and Orders 254APPEAL PANEL: In these circumstances and having regard to the fact that Prof Chesterman is an Australian lawyer, the decision of the Appeal Panel is: (1)in relation to questions other than questions of law in this appeal, the decision of the President and Dr Field by operation of s 57(1) of the Act; (2)in relation to questions of law in this appeal, the decision of the President by operation of s 57(2) and (3)(a) of the Act. 255Accordingly, the orders of the Appeal Panel are: (1)Leave to appeal is granted in respect of ground 4 of the appellant's grounds of appeal. (2)The appeal is allowed. (3)The orders made by the Tribunal on 11 April 2014 are set aside. (4)The complaint is dismissed in whole, under s 108(1)(a) of the Anti-Discrimination Act 1997. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 05 December 2014 - Amendment to coversheet Amended paragraphs: Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2014

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