Khan -v- Commissioner, Department of Corrective Services & anor [2000] NSWADT 72

Set aside by Appeal : Set aside by appeal on 18/1/2001 - Remitted back to Tribunal

CITATION: Khan -v- Commissioner, Department of Corrective Services & anor [2000] NSWADT 72 DIVISION: Equal Opportunity Division APPLICANT Rahiman Khan

PARTIES: FIRST RESPONDENT Commissioner, Department of Corrective Services

SECOND RESPONDENT Managing Director, Australasian Correctional Management Pty Ltd FILE NUMBER: 001006; 001007 HEARING DATES: 26/05/2000 SUBMISSIONS CLOSED: 05/26/2000 DATE OF DECISION: 06/08/2000

BEFORE: King P - Judicial Member; Farmer L - Member; Nemeth de Bikal L - Member APPLICATION: Race Discrimination - Goods and Services - Victimisation MATTER FOR DECISION: Principal matters LEGISLATION CITED : Anti-Discrimination Act 1977 Mandla v Dowell Lee (1983) 2 AC 548 Waterhouse v Bell (1991) 25 NSWLR 99 CASES CITED: Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92 808 Commonwealth v Human Rights and Equal Opportunities Commission (1997) 147 ALR 469 A v Department of School Education [2000] NSWADT 59 REPRESENTATION: D Hillard, solicitor N Yetzotis, solicitor ORDERS: Applications dismissed.

1 On 23 March 1999 the Anti-Discrimination Board of New South Wales received the first of several complaints under the Anti-Discrimination Act 1977 ("the Act") from the Applicant, Mr Rahiman Khan, alleging discrimination against the two Respondents on the grounds of race and victimisation. Attempts to resolve the complaints through conciliation were unsuccessful and they were subsequently referred to the Administrative Decisions Tribunal, Equal Opportunity Division under s.94(1) of the Act. 2 A summary of the complaints is found in the President's report which for the purposes of the present determination together with the agreed facts is to be taken as the basis for resolution of the dispute currently before the Tribunal. At the time of the original complaint Mr Khan was an inmate of Junee Correctional Centre which is a private prison run under contract from the First Respondent by the Second Respondent. He is a person who subscribes to the Muslim faith and strictly obeys Islamic dietary laws which govern the types of food he can eat and the way in which animals are slaughtered for meat consumption. These dietary laws are laid down in the Koran, the primary biblical text of those adhering to the Muslim religion. The food which is prepared in accordance with these laws is referred to as Halal. In particular, that food must not contain pork or any pork derivatives and the food, having been prepared in the appropriate fashion, must be the subject of prayers by a recognised Muslim religious leader. 3 Mr Khan alleges that he has been discriminated against by the Respondents because the Commission and the Centre have failed to provide him with Halal food on the same or similar terms as they provide food to inmates not of his ethno-religious background. He further alleges that he has been victimised in various ways as a result of complaining about the lack of provision of Halal food. It is acknowledged that disposition of the victimisation complaint depends upon that of the discrimination complaint. In this regard it is alleged that the Applicant was placed in segregation for no reason, was assaulted by prison officers with his food supplies in his cell confiscated without reason. 4 Following correspondence from the Anti-Discrimination Board, the Commission and the Centre responded to Mr Khan's allegations denying that he had been discriminated on the basis of his race, or victimised. The Commission, which has represented the interests of both Respondents in this hearing, states that it has a policy of allowing inmates with dietary needs such as kosher diets and Halal diets, to purchase their own provisions through the prison buy-up system, a system which is fair and reasonable in the circumstances. They state that the decision to transfer Mr Khan from one prison to another was for his own safety, given that he had made complaints about being assaulted by prison officers by reason of his complaints of discrimination. These would be issues for a final hearing. For present purposes the First Respondent acknowledges the correctness of the allegations stated in the President's report and says that if its conduct is discriminatory it is on a ground that it is not unlawful. 5 By agreement between the legal representatives for the parties, two preliminary questions have been referred to the Tribunal for determination. The first is whether as a Muslim the Applicant falls within the definition of "race" in the Act, s.4. The second is, if the answer to the first is in the affirmative, is the complaint properly characterised as being discrimination on the ground of race. If the answer to the second question is no, it is agreed by the Applicant that the applications should be dismissed. If the answer is yes, then it is agreed by both parties that the matter should be referred to mediation with an indication by the Respondents that the adverse determination on the question will be taken into account in making an appropriate offer. 6 The Act provides: "What constitutes discrimination on the ground of race 7.(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: