Gardener Roberts v State of NSW (Department of Attorney General & Justice) [2013] NSWADT 167

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Gardener Roberts v State of NSW (Department of Attorney General & Justice) [2013] NSWADT 167 Hearing dates: 4 June 2013 Decision date: 26 July 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave for the applicant's complaint of race discrimination to proceed is refused Catchwords: LEAVE - complaint of race discrimination against correctional officers - alleged assault on the ground of Aboriginality - whether fair and just for complaint to proceed Legislation Cited: Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Cases Cited: Commissioner of Corrective Services v Dezfouli [2008] NSWADTAP 85 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 Jones and Anor v Ekermawi [2009] NSWCA 388 Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 LR 92 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 Category: Interlocutory applications Parties: Guy Gardener Roberts (Applicant) State of NSW (Department of Attorney General and Justice) (Respondent) Representation: G Gardener Roberts (Applicant in person) G Singer (Respondent) File Number(s): 131020

REASONS FOR DECISION

Introduction 1Mr Gardener Roberts alleges that while in custody at Goulburn Correctional Centre on 7 April 2011, prison officers assaulted him. In August 2011 he complained to the President of the Anti-Discrimination Board that the assault constituted race discrimination in relation to the provision of services to him. The President declined the complaint and Mr Gardener Roberts now seeks the Tribunal's permission for his complaint to go ahead. 2The test is whether it is fair and just for the complaint to proceed: Jones and Anor v Ekermawi [2009] NSWCA 388. When deciding whether to grant leave, the potential merits of the case are relevant. The main issues if this complaint goes to a hearing would be whether the correctional officer's treatment of Mr Gardener Roberts can be regarded as the provision of a service to him and, if so, whether at least one of the reasons for that treatment was Mr Gardener Roberts' race.