Did the Respondent provide a service?
51As a preliminary issue on the question of whether by classifying Mr Whiteoak it was providing him with a service, the Respondent apprehends that concessions it made in Whiteoak No 1 about discriminatory conduct might be held against it on final hearing. Although during the substantive hearing of the proceedings the matter was referred to in argument, the question of whether the Respondent has made and should be bound by any admissions (other than in respect of the decision on 15 December 2008 which is admitted if service is established) was not raised in the pleadings nor was it referred to in the Applicant's amended submissions other than as to costs.
52In the Respondent's written submissions in Whiteoak No 1 on the application for summary dismissal it was said:
"The respondent accepts that the two security classifications of the applicant dated 28 December 2006 and 15 December 2008 respectively were racially discriminatory for the reasons found by the Tribunal in [Contreras-Ortiz] where it was found that the process of classification involved the provision of a 'service'."
53Notwithstanding this concession the Tribunal in Whiteoak No 1 questioned whether Mr Whiteoak was in fact an "unlawful non-citizen" and subject to the "exceptional circumstances" requirement under the Old Inmates of Interest to Immigration Policy considered in Contreras-Ortiz: see Whiteoak No 1 at [84].
54The Tribunal in Whiteoak No 1 ultimately determined that "for the purposes of this application, the Tribunal accepts the Respondent's concession that there is a factual basis for the allegation in respect of the classifications in 2006 and 2008": Whiteoak No 1 at [86].
55The Tribunal does not consider that an admission has been made which is binding on the Respondent in the substantive proceedings. There was evidence that the concession which had been made was based upon an error. This can be traced through a number of the Respondent's documents in which certain officers of the Respondent considered that the decision of 28 December 2006 to regress Mr Whiteoak from C3 to C1 was in line with the Departmental policy at that time. In fact, the Respondent says that the "exceptional circumstances" requirement in the Old Inmates of Interest to Immigration Policy did not apply to Mr Whiteoak who was a "lawful non-citizen" at the relevant time. Mr Grant gave evidence that the policy was not applicable to Mr Whiteoak and that he did not apply it.
56Even if the Respondent's concession was to be treated as a formal admission, in the Tribunal's view, it would have been appropriate to grant leave to the Respondent to withdraw the admission on the basis of the evidence that it was made as the result of a mistake or misapprehension as to the true position: see Coopers Brewery Ltd v Panfida Foods Ltd [1992) 26 NSWLR 738 or was demonstrably erroneous: see Maile v Rafiq [2005] NSWCA 410 at [73]. Accordingly, the Tribunal does not take the Respondent's concession into account in its consideration of the matter on final hearing.
57After a comprehensive review of the authorities the Tribunal in Contreras-Ortiz at [115] set out its conclusions in relation to the construction of the term "service" in s 4 of the AD Act as follows:
(a)In discharging statutory duties and functions and in exercising statutory powers in the public interest, a body may also be engaged in the provision of services to particular individuals; that is, as Gummow J observed in IW at 44, there is no dichotomy between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions;
(b)It is erroneous to posit a distinction between the provision of services pursuant to a statutory discretion and the situation where no discretionary element exists: cf Raphael FM in Rainsford;
(c)As ameliorating legislation, the AD Act should be construed beneficially: Director-General, Department of Community Services v MM [2003] NSWSC 1241 and authorities cited at [24] to [27]. The term 'service' is capable of broad application, and should be read in s 4 as having its ordinary and broad meaning: eg IW per Dawson and Gaudron JJ at 23;
(d)Amongst the ordinary meanings of the term 'service' are the action of serving, helping or benefitting; conduct tending to the welfare or advantage of another: Oxford English Dictionary (2nd Ed) XV, 36; an act of helpful activity: Macquarie Dictionary (3rd Ed); and
(e)The touchstone for a service is whether the act is helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs: Sundberg J in Rainsford."
58This reasoning was adopted by the Tribunal in Richard at [79] - [81] and Whiteoak No 1 at [89].
59In the Tribunal's view it is appropriate to apply the considerations identified in Contreras-Ortiz at [115] to the services alleged in the Applicant's pleading which have either been denied or not admitted. These will be considered in turn.
60The Applicant pleads at paragraph 18(a) of the Further Amended Points of Claim that the Respondent provided services by:
(a)Providing inmates with external leave outside a correctional centre for the purpose of re-establishing themselves in the community, gaining meaningful employment, participate [sic] in external education or training or make retribution or make [sic] retribution to the community."
61The Applicant relies upon the conclusion in Contreras-Ortiz that both "providing development programs, including development programs involving work or employment outside a correctional centre" and "considering whether those inmates should be permitted to participate" in such development programs (referred to as Points of Claim paras 11(a) and (b) in the Contreras-Ortiz decision) were "services" (noting that 11(a) was admitted in those proceedings): see Contreras-Ortiz at [123] - [125].
62The Tribunal in Contreras-Ortiz found at [116] to [118]:
"116 Applying [the principles which it identified at [115]] the actions and powers exercised by the Respondents are capable of being characterized as services within the meaning of ss 4 and 19 of the AD Act. Relevantly, cl 60(1) of the Crimes (Administration of Sentences) Regulation, provides that the Commissioner may provide an inmate with services and programs that:
(a) 'offer the inmate an opportunity to develop skills, behaviours and attitudes that lessen the likelihood of the inmate re-offending, or
(b) contribute to the inmate living in society after release from custody, or
(c) promote the health, safety and wellbeing of the inmate.
117 Clause 60(2) provides that, without limiting subcl (1), such services and programs may include:
(a) welfare services,
(b) services for inmates who have disabilities,
(c) alcohol and other drug counselling services,
(d) psychological counselling services,
(e) literacy and numeracy programs,
(f) educational and vocational training programs, including the provision of libraries,
(g) pre-release and post-release programs to enable inmates to adapt to normal lawful community life,
(h) sports and recreational activities.
118 Clause 60(3) provides that in the exercise of a function under cl 60, the Commissioner must give special attention to the needs of inmates who have low literacy or numeracy. The Commissioner must also give special attention to the needs of inmates who have a disability: subcl (3A). Services and programs may be provided by correctional officers or by other persons approved by the Commissioner: subcl (4)."
63The Tribunal in Contreras-Ortiz at [119] had little difficulty in concluding that the performance of the functions by the Respondent under cl 60 is potentially helpful or beneficial to inmates and hence capable of being characterised generally as services within the meaning of ss 4 and 19 of the AD Act.
64Adopting the principles identified in Contreras-Ortiz at [115] this Tribunal has no difficulty in concluding that the provision to inmates of external leave for the purposes pleaded is helpful or beneficial to inmates and accordingly that it is capable of being characterised as a "service" within the meaning of ss 4 and 19 of the AD Act.
65Paragraph 18(b) of the pleading identifies a service of "considering" whether to provide the external leave identified in para 18(a). The Tribunal in Contreras-Ortiz at [125] referred to the decision of the High Court of Australia in IW v City of Perth (1997) 191 CLR 1 in which it was held (per Dawson and Gaudron JJ at 23 and per Gummow J at 44) that the process by which the Respondent in that case "considered" applications for planning approval constituted the provision of services for the purposes of the Equal Opportunity Act 1984 (WA). See also Director-General, Department of Community Services v MM and another [2003] NSWSC 1241 at [44].
66As the Tribunal held in Contreras-Ortiz at [125] it follows that the "consideration" of the provision of external leave for the purposes identified in paragraph 18(b) of the pleading is also capable of being characterised as a "service" within the meaning of ss 4 and 19 of the AD Act.
67Paragraph 18(c) of the Further Amended Points of Claim pleads the service of "varying the classification of inmates for the purposes of the provision of, external leave opportunities".
68Paragraph 18(d) of the Further Amended Points of Claim pleads the service of "considering whether the classification of inmates should be varied for the purposes of the provision of development programs, external leave opportunities or the engagement in work or employment opportunities; ..."
69As to these claims the Applicant also relies upon the Tribunal's decision in Contreras-Ortiz in which it expressly found that "varying the classification of inmates for the purposes of the provision of appropriate development programs" and/or "considering whether the classification of inmates should be varied for the purposes of the provision of appropriate development programs" (identified respectively as the claims in 11(e) and (f) of the Points of Claim in those proceedings) were properly characterised as helpful or beneficial to inmates and therefore constituted services for the purposes of s 19 of the AD Act: see Contreras-Ortiz at [129]. In further support, the Applicant relies upon the decision in Richard at [79] - [80] and the finding in Whiteoak No 1 at [89].
70The conclusion of the Tribunal in Contreras-Ortiz on the classification decisions was at [129]:
"... whilst we have no doubt that the classification process is absolutely fundamental to ensuring the security of the correctional system, we are also satisfied that classification can also be properly characterised as helpful or beneficial to inmates."
71This conclusion was drawn on the basis of the Tribunal's view that the Respondent provided services in respect of the matters alleged in subparagraphs 11(a) to (d) in the Points of Claim in that case (which concerned the provision of development programs, finding work or employment for inmates and considering the provision of both of those services). In so concluding however, the Tribunal considered that it was not necessary for it to determine whether the matters alleged in subparagraphs 11(e) and (f) of the Points of Claim (which referred to the varying of the classification of inmates for the purposes of the provision of appropriate development programs and considering whether to vary such classification) amounted to a service: Contreras-Ortiz at [128].
72Clause 22(1) of the Crimes (Administration of Sentences) Regulation 2009 (NSW) (C(AS) Reg) provides:
"Each male inmate is to be classified in one of the following categories for the purposes of security and the provision of appropriate development programs ..."
73The Respondent in Contreras-Ortiz had contended that notwithstanding the opening words of cl 22 the fundamental purpose of the classification process is to ensure the security of the correctional facility where the inmate is located: Contreras-Ortiz at [127].
74The Tribunal went on to say at [128]:
"However, it seems to us the better view is that the text of clause 22 of the Regulation does not support the approach contended for by the respondents. Rather it seems tolerably clear that clause 22, read literally as well as beneficially, contemplates a non-exclusive duality of purposes of classification."
75The Tribunal also found at [128] that its reading of cl 22 was consistent with Chapter 14 of the Inmate Classification Placement and Procedures Manual (November 2005, Interim) (Classification Manual) which provides relevantly:
"The classification and placement of an inmate are part of a comprehensive and detailed case plan designed to address his/her individual and identified needs in response to offence(s) committed for which the inmate has been sentenced.
In carrying out the provisions of the legislation there is to be a presumption that an inmate will always obtain a significant rehabilitative benefit from programs, including external leave programs when motivated to participate."
76The Respondent says that the reasoning in Contreras-Ortiz was tentative and can be criticised in two respects; firstly, that by relying on cl 22 of the C(AS) Reg the Tribunal tended to treat the identification of a service as a question of statutory construction rather than as a question of fact. Secondly, the Tribunal elided security classification with the development of a case plan.
77As the Tribunal noted in Whiteoak No 1 at [89] the Respondent had not sought to argue on the application before it that the decision in Contreras-Ortiz was wrong or that the Respondent did not provide services within ss 4 and 19 of the AD Act. Nor had it done so in Richard.
78The identification of the relevant service is a question of fact: see Waters v Public Transport Corporation (1991) 173 CLR 349 at 361 per Mason CJ and Gaudron J; at 404 per McHugh J; Rainsford v State of Victoria [2007] FCA 1059 at [72]; Contreras-Ortiz at [122]. Whether determination of a security classification is a service is in issue on the pleadings in this matter and this Tribunal is not bound by any finding of fact in Contreras-Ortiz. In the Tribunal's view, whether or not the finding on this aspect of the matter in Contreras-Ortiz can be said to be tentative, in circumstances in which the Tribunal in this case had the benefit of evidence on the operation of the classification regime from two very senior officers of the Respondent, Mr Grant and Mr Halloran, it is appropriate to consider the issue of services in light of the evidence now adduced.
79The contest between the parties on this issue will be determined by whether, as the Applicant puts it, classification and inmate services and programs are intrinsically linked each forming part of the overall case planning process which underpins the scheme of management of inmates under the C(AS) Act and C(AS) Reg or, as the Respondent puts it, there is a structural separation in the undertaking of security classification on the one hand and participation in programs on the other.
80Mr Halloran is the Executive Director of Classification, Case Management and External Leave Programs of the Respondent. He has held this position since 2009. Prior to that he was the Director-Classification and Case Management Branch from 25 August 2003 to 19 May 2009 in which position he did not have formal responsibility for external leave programs. His responsibilities as Executive Director of Classification include overseeing the classification, placement and case management of inmates and the external leave programs of the Respondent.
81Mr Halloran gave evidence of the regime for security classification. Reference was made to the operation of the earlier (now amended) Crimes (Administration of Sentences) Regulation 2001 (NSW) (C(AS) Reg 2001). Part 2.2 of C(AS) Reg 2001 on its face deals with inmate case management and security classification. C(AS) Reg 2001 applied until it was repealed and replaced on 1 September 2008 by the current C(AS) Reg.
82Clause 12(1) C(AS) Reg provides:
"12 Placement of inmates
(1) In making a determination as to the correctional centre in which an inmate is to be placed, the Commissioner is to have regard to the following matters:
a) the inmate's classification,
b) if available, the sentencing court's comments in relation to the inmate,
c) any assessment that has been made as to the inmate's physical or mental health,
d) the provision of health care services to the inmate,
e) whether or not the inmate is likely to be removed from Australia,
f) the inmate's criminal history and history of behaviour during any previous period of imprisonment,
g) the inmate's history of behaviour while subject to supervision otherwise than as an inmate pursuant to any conditions of bail or parole or any other conditions imposed by a court order (including an extended supervision order under the Crimes (High Risk Offenders) Act 2006 ),
h) assessment that has been made (whether by officers of Corrective Services NSW or of any other government department or public authority) as to:
(i) the level of risk that the inmate poses to good order and security, and
(ii) the likelihood that the inmate may try to escape from custody, and
(iii)any factors contributing to the inmate's criminal behaviour, and
(iv)the likelihood of the inmate committing further offences, whether of the same or of a different kind,
(i) the need to protect the community,
(j) the availability of resources and appropriate programs and services at the correctional centre at which the inmate is to be held."
83Clause 13(1) of C(AS) Reg provides:
"13 Case plans to be prepared for all convicted inmates
(1) The Commissioner is to ensure that a case plan (the 'initial case plan') is prepared and adopted for each convicted inmate as soon as possible after the inmate becomes a convicted inmate."
84Clause 13(3) provides:
"A subsequent case plan is to be prepared and adopted for a convicted inmate at least once every 12 months and at such other times as the Commissioner determines."
85It 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.
86Clause 14(5) of C(AS) Reg 2001 provided:
"14 Departmental officers to prepare recommendations
(5) In the case of an inmate who is serving a sentence of more than 2 years, the functions of the nominated officer under this clause are to be exercised by a committee of 2 or more Departmental officers nominated by the Commissioner."
87This clause had application to Mr Whiteoak. Mr Halloran gave evidence that in practice the recommendations for a case plan (including as to classification) are prepared by the Case Management Team (CMT) at the inmate's Correctional Centre. The recommendations are then forwarded to one or more review officers nominated by the Commissioner pursuant to cl 15 of the C(AS) Reg. In practice, the review officers are the Classification Managers (or Deputy Classification Managers).
88Where the inmate is "a serious offender", as is the case with Mr Whiteoak, the review officers must make recommendations for the case plan to the Serious Offenders Review Council (SORC). SORC then reviews the recommended case plan pursuant to cl 16(1) of C(AS) Reg and makes a submission to the Commissioner about the case plan pursuant to cl 16(2) of the C(AS) Reg.
89The C(AS) Act provides at s 197 as follows:
"197 Functions of Review Council
(1) The Review Council has such functions as are conferred on it by or under this or any other Act or law.
(2) In particular, the Review Council has the following functions:
(a) to provide advice and make recommendations to the Commissioner with respect to the following:
(i) the security classification of serious offenders,
(ii) the placement of serious offenders,
(iii) developmental programs provided for serious offenders,
(b) to provide reports and advice to the Parole Authority concerning the release on parole of serious offenders,
(c) to prepare and submit reports to the Supreme Court with respect to applications under Schedule 1 to the Crimes (Sentencing Procedure) Act 1999,
(d) to review segregated and protective custody directions under Division 2 of Part 2,
(d1) to make recommendations to the Minister with respect to the transfer of juvenile inmates from juvenile correctional centres to adult correctional centres under Division 3A of Part 2,
(e) to provide reports and advice to the Minister and to such other persons or bodies as may be prescribed by the regulations,
(f) to perform such other functions as may be prescribed by the regulations in relation to the management of serious offenders and other offenders."
90Section 198 provides as follows:
"198 Matters to be considered in relation to certain advisory functions
(1) When exercising its functions under section 197 (2) (a) in relation to a serious offender, the Review Council must consider the public interest and any other relevant matters.
(2) In the case of its function under section 197 (2) (a) (i), the Review Council must also consider, in accordance with the regulations:
a) any submissions made by the State, and
b) any submissions made by victims of the serious offender,
before advising or recommending that a serious offender should be given a less stringent security classification if it appears to the Review Council that the new classification would allow the offender to become eligible for unescorted leave of absence under a local leave permit or interstate leave permit.
(2A) When exercising its functions under section 197 (2) (b) in relation to a serious offender, the Review Council must consider the following matters:
a) the public interest,
(b) the offender's classification history,
(c) the offender's conduct while in custody, both in relation to sentences currently being served and in relation to earlier sentences,
(d) the offender's willingness to participate in rehabilitation programs, and the success or otherwise of his or her participation in such programs,
(e) any relevant reports (including any medical, psychiatric or psychological reports) that are available to the Review Council in relation to the offender,
(f) any other matter that the Review Council considers to be relevant.
(3) Without limiting the generality of the meaning of public interest in subsections (1) and (2A), the Review Council is to take into account the following matters when considering the public interest:
a) the protection of the public, which is to be paramount,
(b) the nature and circumstances of the offence,
(c)the reasons and recommendations of the sentencing court,
(d) the criminal history and family background of the offender,
(e0f the time the offender has served in custody and the time the offender has yet to serve in custody,
(f) the offender's conduct while in custody, including the offender's conduct during previous imprisonment, if applicable,
(g) the attitude of the offender,
(h) the position of and consequences to any victim of the offender, including the victim's family,
(i) the need to maintain public confidence in the administration of criminal justice,
(j) the need to reassure the community that serious offenders are in secure custody as long as it is appropriate,
(k) the rehabilitation of the offender and the re-entry of the offender into the community as a law-abiding citizen,
(l) the availability to the offender of family, departmental and other support,
(m) such other factors as are prescribed by the regulations."
91Clause 17(1) provides that the Commissioner must then consider SORC's recommendation about the case plan. Clause 17(2) provides that the Commissioner is not bound to follow the recommendations or the advice of SORC.
92Clause 22(1) of the C(AS) Reg provides:
"22 Classification of male inmates
(1) Each male inmate is to be classified in one of the following categories for the purposes of security and the provision of appropriate development programs:
'Category AA', being the category of inmates who, in the opinion of the Commissioner, represent a special risk to national security (for example, because of a perceived risk that they may engage in, or incite other persons to engage in, terrorist activities) and should at all times be confined in special facilities within a secure physical barrier that includes towers or electronic surveillance equipment.
'Category A1', being the category of inmates who, in the opinion of the Commissioner, represent a special risk to good order and security and should at all times be confined in special facilities within a secure physical barrier that includes towers or electronic surveillance equipment.
'Category A2', being the category of inmates who, in the opinion of the Commissioner, should at all times be confined by a secure physical barrier that includes towers, other highly secure perimeter structures or electronic surveillance equipment.
'Category B', being the category of inmates who, in the opinion of the Commissioner, should at all times be confined by a secure physical barrier.
'Category C1', being the category of inmates who, in the opinion of the Commissioner, should be confined by a physical barrier unless in the company of a correctional officer or some other person authorised by the Commissioner.
'Category C2', being the category of inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times but who need some level of supervision by a correctional officer or some other person authorised by the Commissioner.
'Category C3', being the category of inmates who, in the opinion of the Commissioner, need not be confined by a physical barrier at all times and who need not be supervised."
93Clause 22(2) provides that the Commissioner may at any time vary or revoke a classification made under cl 22(1).
94It was Mr Halloran's evidence that the legal obligations with respect to a classification are supplemented by the Corrective Service NSW Policy outlined in the Classification Manual which was in evidence. The Classification Manual has applied at all times from 2006 to the date of hearing. The Classification Manual was formerly comprised in Chapter 2 of Corrective Services NSW Operations Procedures Manual (OPM) which was also in evidence.
95Mr Halloran gave evidence that SORC has not regarded itself as bound by Corrective Services NSW Policy including the Classification Manual. However, in practice SORC acts in accordance with the policy unless it identifies a good reason for not doing so in the interests of the safety of the community, staff, the inmate and other inmates.
96Chapter 11 of the Classification Manual provides for the CMT to develop and make recommendations as to case plans for inmates.
97Chapter 14 of the Classification Manual sets out procedures to be followed in making recommendations for the classification and placement of inmates. Chapter 14 describes "classification" at page 130 as follows:
"Classification is the process whereby inmates are designated a security rating that determines the custodial location in which they are managed. It is one of the most important processes for ensuring the security of the correctional system. Staff who participate in the process must maintain a constant awareness of the significance of this activity for ensuring the safety of the community, staff and other inmates."
98Chapter 18 of the Classification Manual governs the procedures of the classification and placement of "serious offenders" being inmates who are managed by SORC. Page 184 of Chapter 18 provides:
"The main functions of [SORC] are to make recommendations to the Commissioner on the management of serious offenders and high security offenders ...
The [SORC] also provides advice ... to the Parole Board concerning the release on parole of serious offenders."
99The classification of serious offenders is also supplemented by the following guidelines which were in evidence:
(a) "Classification Progress for Serious Offenders" effective from 25 November 2002; and
(b)"Summary of Commissioner's Guidelines for Serious Offenders" which has been effective since 26 August 2008.
100It 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.
101It 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.
102Evidence was also given on behalf of the Respondent by Mr Luke Grant, the Assistant Commissioner - Offender Services and Programs of the Respondent. He has held that position since 2006. Between 2000 and 2006 he was Assistant Commissioner - Offender Management which he says was essentially the same position. In the 1990's Mr Grant was the Director of Classification. He was at that time an Official Member of SORC.
103Mr 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."
104Mr Grant's evidence was that the Royal Commission recommended a change to the regulations to reflect this. Recommendation 55 stated that:
"The existing Regulations regarding classification should be replaced by regulations embodying the security classifications recommended in this report."
105Mr Grant gave evidence that Recommendation 59 introduced the "A", "B" and "C" classification categories which were incorporated in the C(AS) Reg and have remained there ever since.
106Mr 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.
107The Applicant submits that each of the decisions the subject of complaint arose from the Applicant's bi-annual/annual case plan review required by cl 13 of C(AS) Reg given by the Commissioner or his delegate assistant, Commissioner Luke Grant. They were not decisions taken independently of the scheduled case planning process.
108In the Applicant's submission, security classification is but one element of the case plan review process required of all inmates. The elements of the case plan outlined in cl 13(1) of C(AS) Reg are reviewed concurrently in the same sitting of SORC (in terms of recommendations to the Commissioner) and the same sitting of the Commissioner (or his delegate).
109The Applicant points to the objects of the C(AS) Act which include at s 2A(1):
(a) "To ensure that those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment,
...
(d) To provide for the rehabilitation of offenders with a view to their reintegration into the general community."
110He points in particular to cl 22 of the C(AS) Reg which stated at all relevant times that the classification of inmates is "for the purposes of security and the provision of appropriate development programs".
111 The Applicant also refers to the operation of Division 5, Part 2.3 entitled "Inmate Services and Programs" which expressly provided at cl 60 of the C(AS) Reg 2001 applicable at the time of the 2006 and 2007 decisions (equivalent to cl 57 of the current C(AS) Reg):
(1) "The Commissioner may provide an inmate with services and programs that:
c) offer the inmate an opportunity to develop skills, behaviours and attitudes that lessen the likelihood of the inmate re-offending, or
(d) contribute to the inmate living in society after release from custody, or
(e) promote the health, safety and well-being of the inmate.
(2) Without limiting subclause (1), such service and programs may include:
g) Pre-release and post-release programs to enable inmates to adapt to normal lawful community life."
112The Applicant submits that on its face the description of pre-release programs to enable inmates to adapt to normal community life as "inmate services and programs" in cl 57 immediately confirms the claimed services in paragraphs 18(c) and (d) of the Further Amended Points of Claim.
113The Respondent submits that the evidence of both Mr Grant and Mr Halloran established that the determination of security classification is one component of an overall case plan and it is not the same as the case plan. Security classification comes first. It is only once a prisoner has a security classification that it is open to consider the other aspects of the case plan, being placement and programs. The evidence from Mr Halloran and Mr Grant was that security classification was not "reverse engineered" in order to create opportunities for prisoners to participate in programs.
114The Respondent says that it is necessary to be more precise in the identification of the service. The service is said to be the determination of a security classification. It is not the broader service of development of a case plan.
115The interpretation of "service" involves the process of statutory construction. As Brennan CJ and McHugh J held in IW at 12:
"Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural. But subject to that proviso, if the term 'service' read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal, exercising jurisdiction under the Act should hold that the activity is a 'service' for the purpose of the Act."
116The service must be identified with precision and not be too broadly defined: see Waters at 404 - 405 per McHugh J; IW at 17 per Brennan CJ and McHugh J and Contreras-Ortiz at [122]. The service is a service to the person alleging discrimination: see Waters at 404 per McHugh J; IW at 17 per Brennan CJ and McHugh J.
117The New South Wales Court of Appeal in Commissioner of Police (NSW) v Mohamed [2009] NSWCA 432 at [32] reaffirmed that the word "services" was used in the AD Act "in its ordinary, undefined sense". It did so by reference at [40] to the decision in IW stating:
"In IW, Dawson and Gaudron JJ also accepted that the term 'services' was a word of 'complete generality' and 'should not be given a narrow construction unless that is clearly required by definition or by context."
At [23] Their Honours noted that the definition which was in similar terms to that in the AD Act, "is to be taken as signifying everything which falls within [the ordinary notion of 'services']".
118The Full Court of the Federal Court in considering the equivalent provision in the Disability Discrimination Act 1992 (Cth) (DDA) in Rainsford v. State of Victoria [2005] FCAFC 163 at [54] stated:
"The question of whether an activity is a service or the purposes of s 24 of [the DDA] is essentially a matter of characterisation. In discharging statutory duties and functions and in exercising statutory powers in the public interest, a body may also be engaged in the provision of services to particular individuals: see IW v City of Perth at 44 per Gummow J; also 12 - 13 per Brennan CJ and McHugh J; 24 per Dawson and Gaudron JJ; 29 per Toohey J; and 72 per Kirby J."
119Sundberg J in Rainsford (2007) at [72] to whom the Full Court proceedings were returned observed:
"72 The judgments in IW are clearly dependent on the particular fact situation of that case, but some general propositions can be identified. First, not all government functions are services, although some undoubtedly are. Second, as the difference between Dawson, Gaudron and Gummow JJ on the one hand and Toohey and Kirby JJ on the other hand demonstrates, the way in which the service is identified is critical. It is a question of fact determined by the situation of the particular case."
120In IW at 44, Gummow J affirmed the validity and co-existence of the duality of purposes of a statutory function in the context of a council through its planning approval function providing services to both the community and individual applicants. See also the discussion of services involving multiple purposes in Commissioner of Police, NSW Police Service v Estate of Russell [2001] NSWSC 745 at [44] per Sully J; MM at [44] per Barr J. The Full Court of the Federal Court in Rainsford (2005) at [54] observed that the body can exercise statutory powers in the public interest and provide services to particular individuals.
121Classification 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.
122Chapter 1 of the Classification Manual in the introduction provides that:
"It is important to bear in mind that the legislation reserves to the Commissioner those decision-making powers which relate to the case plan, classification and placement of inmates in the following categories: serious offender ...
In making certain decisions on such inmates the Commissioner first seeks advice from the Serious Offenders Review Council or subcommittees of the Council
Central to the case management process is the formulation of a case plan for each inmate who is received into custody. There is an important link between case plan classification and placement as described in departmental policy ..." [Emphasis added.]
123Chapter 3 provides for case management. It is noted that the Respondent's case management policy overview is:
"The NSW Department of Corrective Services is bound by legislation to utilise case management as the organising principle and key strategy for offender management. Its purpose is to advance the department's mission: to reduce re-offending by the secure, safe and humane management of offenders." [Emphasis added.]
124Under "Definition of Case Management" in Chapter 3 it is provided:
"Case management is a service delivery approach widely adopted across many areas of social services, including health, employment, housing and corrections. [Emphasis added.]
The principle that underpins a case management is individualised service delivery, based on comprehensive assessment that is used to develop a case or service plan. The plan is developed in collaboration with the individual and realised through individual and group intervention strategies." [Emphasis added.]
125Under the heading "Assessment" it is provided:
"In the effort to achieve the Department's mission to reduce re-offending, the assessment of offenders is undertaken in order to:
- discharge duty of care ...
- plan for integration into law-abiding community living." [Emphasis added.]
126Certain outcomes are expected after completion of an assessment period. The manual provides:
"This contributes to the evolving offender profile and the ongoing holistic assessment in the case management of the offender." [Emphasis added.]
127Under the subheading "Plan for Integration into Law-Abiding Community Living" it is provided:
"Planning for an offender's integration into law abiding community living commences when an offender first comes under the responsibility of the Department and continues throughout the legal order or sentence." [Emphasis added.]
128Under the heading "Case Planning" it is provided:
"A case plan will be drawn up for each offender, based on the outcomes of the assessment process, interviews with the offender, and any other relevant material available such as comments made by the sentencing authority. Wherever possible, it should be drawn up in the presence of, and with the collaboration of, the offender. It should specify the programs or interventions that stem from the needs identified in the assessment process, with regard to reducing the dynamic risk factors and addressing offending behaviour. A case plan will also specify time-frames for programs and interventions, and a date for the review of the case plan. [Emphasis added.]
In developing an offender's case plan, staff must be mindful of the availability of approved and accredited programs and services, and their eligibility and exclusion criteria."
129Chapter 11 of the Classification Manual deals with the CMT. In paragraph 1 under "Procedures" it is provided:
"The case manager/SCO is to ensure that the case plan and classification recommendations of the CMT are suited to each inmate."[Emphasis added.]
130Paragraph 8 provides for examination by the reception committee of case files for all inmates newly received into the centre as the gaol of placement. This is "in order to identify those who may need full assessment including assessment by a psychologist for intellectual disability and those who may need a case plan variation ..." It continues "This procedure is to ensure that initial case plans of these inmates have properly addressed their needs and that their placement is appropriate." [Emphasis added.]
131Paragraph 22 provides that serious offenders are to be part of the case management process at the centre.
"When a centre is notified that the assessment committee of the SORC is to visit to review serious offenders in the centre, the CMT is to meet and review each serious offender's classification, placement & case plan and make review documentation available prior to the visit."
132In Chapter 13 concerning initial case plan and management it is provided at paragraph 2 that:
"The initial case plan is to be based on risk and criminogenic needs for inmates sentenced to greater than 2 months ... and on resources available to the department. The case plan must be explained to the inmate." [Emphasis added.]
133Paragraph 12 provides:
"The CMT/Manager/Deputy Manager, Classification & Placement are to give consideration to risk/need assessment results the nature of the offence and the nature of the inmate's criminal record which are important indicators of an inmate's security risk as well as previous criminal history, age, whether or not further charges are pending, escape history, apparent stability and previous history in custody, ie. punishments, segregation." [Emphasis added.]
134At paragraph 14 it is provided:
"For inmates with a sentence length of 12 months or greater, the initial case plan must reflect the intention of having the inmate participate in external leave program(s) at the appropriate time in his/her sentence ..." [Emphasis added.]
135Paragraph 22 provides:
"The Manager, Offender Services & Program (Employment) at the centre of placement is to have the case plan of the inmate reviewed after reception in relation to programs and services available at that centre, and may have the initial classification and/or placement decision reviewed if such action appears warranted in light of gaol resources." [Emphasis added.]
136The ELP Policy was in evidence. It provides relevantly in the introduction to Chapter 18:
"Eligible inmates should be encouraged to aim for external leave program participation towards the end of their sentence. This intention should form part of a case plan for the inmate well before actual participation is permitted under the criteria. Participation in external leave programs is a significant component of throughcare for the inmate returning to community life after discharge from custody." [Emphasis added.]
137Clause 18.1.1 of the ELP Policy provides for "Case Management and Through Care to the Community" in the following terms:
"The External Leave Programs developed by the Department in consultation with the community provide an opportunity for selected inmates approaching the end of their sentence to:
- re-establish themselves in the community while still supported by the specialist services available through the correctional centre
- gain meaningful employment which may be ongoing upon release
- re-establish family relationships which have been affected
- assume financial responsibility for themselves and their families
- participate in external education and/or training
- make retribution to the community
- contribute towards the cost of their incarceration.
Consideration for inclusion in External Leave Programs can only occur through a comprehensive case management process whereby a case management plan of integrated programs is developed to provide an inmate with relevant social and cognitive skills to assist him/her to avoid re-offending." [Emphasis added.]
138In 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.
139Chapter 13 of the Classification Manual identifies the nature of the classification process. It states:
"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)."
140Chapter 14 of the Classification Manual provides for Classification, Placement and Case Plan Reviews. The chapter states:
"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. [Emphasis added.]
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." [Emphasis added.]
141Chapter 14 also provides:
"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." [Emphasis added.]
142Paragraph 7 of Chapter 14 dealing with "Criteria for Regression Of Security Classification" states (in the context of regression being considered because of adverse behaviour):
"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 added.]
143Paragraph 8 of Chapter 14 provides:
"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. ..." [Emphasis added.]
144The areas identified apparently also 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.
145The issue is not a simple one to resolve. On the one hand, many of the rules and policies to which classification is subject focus on the issue of security and there is the evidence of Mr Halloran and Mr Grant to the effect that security is the only consideration and that access to programs is determined by the level of security classification once it is made. On the other hand, cl 22(1) of the C(AS) Reg in its ordinary meaning apparently provides for a duality of purpose, namely that classification is "for the purposes of security and the provision of appropriate development programs" which programs the Tribunal has found are helpful or beneficial to an inmate.
146The regime for detailed case plan management is by Chapter 14 of the Classification Manual designed to address the "individual and identified needs" of an inmate in response to offences committed for which the inmate has been sentenced. For the reasons expressed above, it is plain to the Tribunal that the management of an inmate's case plan is helpful or beneficial to an inmate. Chapter 14 of the Classification Manual provides that "classification" is part of that beneficial activity. Furthermore, in the respects identified above, the classification process itself has regard to the needs of the inmate.
147Additionally, s 198 of the C(AS) Act provides that when exercising its functions under s 197(2)(a) in relation to a serious offender the Review Council must consider, inter alia, the public interest. Section 197(2)(a) provides that the SORC has the function of providing advice and making 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."
148Section 198(3) provides that without limiting the meaning of "public interest" in respect of subsection (1) and (2A) SORC is to take into account certain matters when considering the public interest:
a) "The protection of the public, which is to be paramount,
...
k) The rehabilitation of the offender and the re-entry of the offender into the community as a law abiding citizen."
149Although as Mr Halloran said the Commissioner is not bound by a recommendation of SORC it is plain that within the operation of s 198 of 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.
150There was also evidence before the Tribunal that in respect of the classification decision made by Mr Grant on 4 December 2009, SORC had recommended that the Applicant be progressed from Category C1 to Category C2D. This followed advice from CMT that:
"Due to length of time served would recommend a release strategy designed to ready offender for re-entry."
151Mr Grant recorded in the "comments" section of the minutes:
"I am unclear what benefits are of progression to C2D."
152He had previously given evidence that matters recorded in the "comments" section were matters of significance in relation to his decision.
153In his affidavit at [36] Mr Grant observed in relation to this decision:
"... 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 management regime under which he was being managed and would not give him access to any of the leave provisions that he was seeking."
154Mr 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 which he was seeking.
155Additionally, paragraph 18.1.5 of the ELP Policy provides for Case Management and Classification Approval Process in the following terms:
"The case management and classification approval process for external Leave Programs is consistent with the standard case management and classification procedures for all inmates ... [Emphasis added.]
The CMT 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 ..."
156This paragraph draws a distinction between case management and classification approval processes for external leave programs and standard case management and classification procedures for all inmates. It provides that they are consistent. It contemplates the application of the classification process for more than one purpose including the beneficial one of approval for external leave programs.
157In the Tribunal's view, the evidence establishes that the detailed case plan is designed to address an inmate's individual and identified needs and that classification forms one part of that detailed case plan. The evidence referred to also supports the view that classification has a duality of purpose in the nature of that referred to by Gummow J in IW at [44] including insofar as it takes into account appropriate development programs, a purpose which is beneficial or helpful to an inmate. Whilst essential to the security of the correctional system, in the Tribunal's view the evidence establishes that classification can at the same time be properly characterised as helpful or beneficial to inmates in the sense that within case plan management it determines the availability of access to services and programs. This accords with the literal and beneficial reading of cl 22 of C(AS) Reg referred to in Contreras-Ortiz at [128] and is consistent with the beneficial operation of the case plan of which it forms part.
158Accordingly, having regard to the considerations detailed in Contreras-Ortiz at [115], in the Tribunal's view 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.
159The Respondent referred to several authorities which by analogy it was submitted supported the contention that security classification is not a service. The fact situations in Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 at [157] - [169]; Russell at [44] and R v Entry Clearance Officer, Bombay, ex-parte Amin [1983] 2 AC 818 are not readily comparable with the present situation in which classification decisions are undertaken pursuant to cl 22 of C(AS) Reg. The decision of Sundberg J in Rainsford 2007 at [77] - [78] that neither transport of prisoners nor the accommodation of prisoners were services to prisoners since these were inherent parts of incarceration was the subject of the observation of the Full Court of the Federal Court in Rainsford v State of Victoria [2008] FCAFC 31 at [9] that:
"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."
160The Tribunal is not persuaded that on the basis of these authorities that the classification of inmates is not a service within the meaning of ss 4 and 19 of the AD Act.
161With regard to paragraph 18(d) of the Points of Claim as identified above, "consideration" of the provision of a service in the exercise of statutory functions or duties also constitutes a service: see Contreras-Ortiz at [125] referring to MM per Bar J at [44]. Accordingly, the Tribunal finds that the consideration of whether the classification of inmates should be varied for the purposes of the provision of appropriate development programs is also a service within the meaning of cls 4 and 19 of the AD Act.
162Paragraph 18(e) of the Further Amended Points of Claim pleads a service of "considering exercising the powers or functions conferred by s 26 of the [C(AS) Act] and/or cl 22 of the [C(AS) Reg] in relation to the Applicant".
163Section 26 of the C(AS) Act confers on the Commissioner power to issue a "local leave permit" for such purposes as the Commissioner considers it appropriate. Section 26(2) provides that such purposes might include:
"...
c) enabling an inmate to attend a funeral service or burial of a member of the inmate's immediate or extended family,
(d) enabling an inmate to be present at an occasion of special significance to the inmate's immediate or extended family,
(e) enabling an inmate to visit any member of the inmate's immediate family who is suffering serious illness or disability,
(f) enabling an inmate to apply work or attend an interview with an employer or prospective employer,
(g) enabling an inmate to attend a place of education or training in connection with any course of education or training,
(h) enabling an inmate to engage in employment specified in the permit
(i) enabling an inmate to have weekend leave,
...
(k) enabling an inmate to attend tuition or perform work in connection with a course of education or training being undertaken by the inmate."
164As was found in Contreras-Ortiz at [121], the Tribunal concludes applying the considerations in Contreras-Ortiz at [115] that the performance of functions or powers under s 26 of the C(AS) Act is potentially helpful or beneficial to inmates and is capable is being characterised as a service within the meaning of ss 4 and 19 of the AD Act.
165As indicated above cl 22 of the C(AS) Reg provides that:
"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 ..."
166It follows from the Tribunal's finding that classification is a service, that both the exercise of the powers or functions conferred by cl 22 of the C(AS) Reg and s 26 of C(AS) Act or considering the exercise of those powers or functions in relation to the Applicant is also a service for the purposes of ss 4 and 19 of the AD Act.