CITATION: Khan v NSW Department of Corrective Sevices and the GEO Group Pty Ltd [2006] NSWADT 188 DIVISION: Equal Opportunity Division APPLICANT Rahiman Kahn PARTIES: FIRST RESPONDENT NSW Department of Corrective Services SECOND RESPONDENT GEO Group Pty Ltd FILE NUMBER: 061018 HEARING DATES: 14/06/2006 SUBMISSIONS CLOSED: 06/14/2006 DATE OF DECISION: 06/21/2006 BEFORE: Rice S - Judicial Member CATCHWORDS: Application for leave to proceed MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: Khan v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131 Xu v Sydney West Area Health Service [2006] NSWADT 3 APPLICANT In person REPRESENTATION: FIRST RESPONDENT E Ball, Solicitor SECOND RESPONDENT R Casimir, Solicitor ORDERS: Leave is refused REASONS FOR DECISION Decision 1 For the reasons given below, Mr Khan is refused leave to proceed with his complaints. Background 2 Mr Khan complained to the Anti-Discrimination Board that the Department of Corrective Services and The GEO Group Pty Ltd together discriminated against him and victimised him. The conduct Mr Khan complained of was failure to provide him with Halal food, reclassification of his prisoner security status, and unspecified victimisation. 3 The President of the Board declined the complaints, and Mr Khan exercised his option to have the complaints referred to this Tribunal. It is necessary for this Tribunal to decide whether to give Mr Khan leave to proceed. The approach that is taken by the Tribunal in such matters is set out in Xu v Sydney West Area Health Service [2006] NSWADT 3. Deed of release 4 Before looking at the issue of the merits of Mr Khan's complaint about Halal food, the Department and GEO rely on the terms of Deed that Mr Khan entered into with the Department and GEO's predecessor corporate identity, ACM. The Deed was executed in 2003, and arose from the resolution of an earlier complaint made by Mr Khan. In the Deed Mr Kahn undertook to "not make any further complaints ... with respect to Halal food not being available to him while he is imprisoned". The Deed provided that it "may be pleaded in bar ... to any actions ... in connection with any matter referred to in this Deed". The Department and GEO rely on these provisions to say that the Tribunal has no jurisdiction in relation to the complaint concerning the provision of Halal food. 5 In my view the Deed is not obviously a bar to Mr Khan's proceeding with his complaint about Halal food. Mr Khan obtained legal advice in relation to the Deed, and he does not claim to have not understood it, or to have been subject to duress in signing it. But other issues arise. 6 As matter of public policy I am uncomfortable about giving effect, without detailed argument and considered reflection, to an agreement in which a person contracts out of the future protection of the Anti-Discrimination Act 1977, particularly in circumstances where the prospective discriminator will continue to be in an unassailable position of authority and control over the prospective victim for years to come. Further. Mr Kahn submits that his undertaking to not complain in future was a reciprocal act on his part, the Department and GEO having undertaken in the Deed to make Halal meals available to him in the future. The import of that too required deliberation. And finally, it is not clear to me that the phrase "any of the matters referred to in this Deed", which describes the matters to which the Deed can be pleaded in bar, can properly encompass the possible future matters that are the subject of Mr Khan's undertaking. 7 If I thought that, on its merits, the complaint in relation to the provision of Halal food should be allowed to proceed, I would direct that the status of the Deed, as a bar to proceedings concerning that complaint, be argued and decided first. But as I do not believe that leave ought, in any event, be granted, there is no need to resolve the issues raised by the Deed. Ethno-religious status as a ground 8 Mr Khan's written complaint to the Anti-Discrimination Board was that the Department and GEO failed, on the ground of his religion, to provide him with Halal food. The Department and GEO say that as religion is not a proscribed ground under the Anti-Discrimination Act 1977, the complaint is misconceived and leave should be refused. 9 At the hearing for leave to proceed I reminded Mr Khan of the Tribunal's decision relating to race, religion and ethno-religious status in a previous complaint of his, Khan v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131. Mr Khan replied by saying that the failure he complains of on this occasion was in fact conduct on the ground of his ethno-religious status: that he is an Indian Moslem. 10 The Tribunal in the earlier Khan case commented on uncertainty surrounding the term "ethno-religious". Referring to the relevant second reading speech, the Tribunal was of the opinion [at 21] that "it is insufficient for the applicant merely to assert his Muslim faith to fall within the statutory definition ... There must be some evidence that there exists a close tie between that faith and his race, nationality or ethnic origin for him to be regarded as a member of an 'ethno-religious' group". 11 In that matter the Tribunal gave Mr Khan the opportunity to file material that would establish his ethno-religious status. The matter did not proceed to a hearing and the question of Mr Khan's ethno-religious status was never determined. Mr Khan now asserts his Indian ethnicity in tandem with his Moslem faith; it would not be appropriate for the Tribunal on this occasion to deny Mr Khan the opportunity he was given on an earlier occasion, but could not take, to establish "ethno-religious" status under the Anti-Discrimination Act 1977. I do not therefore think that it can be said at this stage that the complaint is misconceived, or that leave should not be granted on that basis. Discrimination complaint about Halal food 12 Looking at the merits of Mr Khan's complaint concerning the provision of Halal food, his evidence would be that the food he was provided with was not kosher, and that he was not provided with condiments and materials that are necessary for the preparation of Halal food. He says that this failure of the Department and GEO was on the ground of his ethno-religious status. Mr Khan cannot point to any evidence that this is so, or to any circumstances from which it might be inferred that this is so. He said to me at the hearing for leave to proceed that he suspects but does not know that the Department is reluctant to make a concession to him about his diet lest others make a similar claim. 13 The Department and GEO say that at a hearing there would be evidence that all prisoners have the same opportunity that Mr Khan has, to buy food appropriate to their culture or religion. Mr Khan is not complaining that he has to buy it, only that what he buys does not meet the description Halal. 14 The material in the President's report shows that Mr Khan did buy food for a period but does not show that the food met the description of Halal. Mr Khan says that it did not. If so, that may indicate a misunderstanding on the part of the Department or GEO as to what was expected and what was being provided. Whatever the explanation, there is no material in the President's report, or any foreshadowed by Mr Khan, that could be evidence, or be the basis of an inference, that the Department and GEO's conduct was on the ground of Mr Khan's ethno-religious status or race. The complaint does not have reasonable prospects of success. 15 What appears to be a misunderstanding, or miscommunication, as to the food that was provided being Halal, might be rectified if attention was paid to the issue. At the leave hearing I encouraged the Department and GEO to consider this, and Mr Khan to again request Halal food, not as any remedy for the past conduct complained of, but at least to ensure that Halal food is available to him in future. Victimisation complaint about classification 16 Mr Khan was reclassified as a higher security risk because, the Department and GEO say, a credit card was found in his cell. Mr Khan says that his evidence would be that the card was a bank 'keycard' for access to teller machines, that he had had it in his cell for some months – during which time his cell had been inspected regularly – and that he had obtained it when he opened the account with the assistance of a Departmental officer. In those circumstances he says that the reclassification is victimisation on the ground of his previous complaints against the Department and GEO. 17 The material in the President's report only sets out the position of the Department and GEO as to finding the card in Mr Khan's cell, and makes clear that classification of prisoners is a discretionary matter for the Commissioner of Corrective Services (or, presumably, his delegate) on the advice of a Case Management Committee. 18 If there is any substance to Mr Khan's version of events, then the reclassification might perhaps be reviewed internally on its merits. At the leave hearing I encouraged the Department and GEO to consider this. But there is no material in the President's report, or any foreshadowed by Mr Khan, that could be evidence, or be the basis of an inference, that the Department and GEO's conduct in reclassifying him was on the ground of Mr Khan's having done something under or by reference to the Anti-Discrimination Act 1977. The complaint does not have reasonable prospects of success. Victimisation complaint generally 19 Mr Khan appears to have made, and the President appears to have referred, a complaint about Mr Khan's having been "victimised". Mr Khan has provided no detail of any conduct other than to say generally that he is mistreated,. He has suggested no reason for that conduct. There is no material in the President's report, or any foreshadowed by Mr Khan, that could be evidence, or be the basis of an inference, that there the Department and GEO engaged in conduct on the ground of Mr Khan's having done something under or by reference to the Anti-Discrimination Act 1977. The complaint does not have reasonable prospects of success. Finding 20 I do not think that the complaints have reasonable prospects of success. In those circumstances, I do not think that the threshold questions – the untested question of Mr Khan's ethno-religious status, and the effect of the Deed – are a substantial reason for granting leave. Order 21 Leave is refused. 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.