Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Whiteoak v State of New South Wales [2014] NSWCATAD 45 Hearing dates: 3, 4 and 5 April 201310 May 2013 (Submissions)6 August 2013 (Submissions) Decision date: 14 April 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: J Wakefield, Senior Member N Hiffernan, General Member M Nasir, General Member Decision: The Tribunal orders that: 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. Catchwords: ADMINISTRATIVE LAW - Civil and Administrative Tribunal (NSW) - Administrative and Equal Opportunity Division - discrimination - on grounds of race - direct discrimination - goods and services - causation - damages for loss of opportunity - ancillary orders - costs Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW) Administrative Decisions Tribunal Amendment Act 2008 (NSW) Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Administration of Sentences) Regulation 2001 (NSW) Crimes (Administration of Sentences) Regulation 2008 (NSW) Cases Cited: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 Bonella v Wollongong City Council [2001] NSWADT 194 Brooks Maher v Cheung [2001] NSWADT 18 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Commissioner of Police, NSW Police Service v Estate of Russell [2001] NSWSC 745 Commissioner of Police v Mooney (No 3) [2004] NSWADTAP 22 Commissioner of Police v Mohamed [2009] NSWCA 432 Commonwealth v Evans [2004] FCA 654 Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308 Coopers Brewery Ltd v Panfida Foods Ltd [1992) 26 NSWLR 738 Cooper v Western Area Local Health Network [2012] NSWADT 39 Director-General, Department of Community Services v MM and another [2003] NSWSC 1241 Director General of Education v Breen [1982] 2 IR 93 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Elliott v State of NSW (NSW Police Force) [2011] NSWADT 159 Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301 IW v City of Perth (1997) 191 CLR 1 Kondos v Citadin Pty Ltd [LSD] [2003] NSWADTAP 7 La Trobe Capital & Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd (2011) 190 FCR 299; FCAFC 4 Maile v Rafiq [2005] NSWCA 410 Monash University v Kapoor [1999] VSC 463 Mooney v Commissioner of Police (No 3) [2003] NSWADT 18 Nicholls & Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Purvis v State of New South Wales (2003) 217 CLR 92 R v Entry Clearance Officer, Bombay, ex-parte Amin [1983] 2 AC 818 Rainsford v State of Victoria [2005] FCAFC 163 Rainsford v State of Victoria [2007] FCA 1059 Rainsford v State of Victoria [2008] FCAFC 31 Richard v Director General, Department of Justice and the Attorney General (Corrective Services NSW) [2011] NSWADT 158 Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 Saraswati v The Queen (1991) 172 CLR 1 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 ALL ER 26 Sutherland v Tallong Park Association Incorporated (No. 2) [2006] NSWADT 287 Sydney University Postgraduate Representative Association (SUPRA) v Minister for Transport Services [2006] NSWADT 83 Tallong Park Association Inc v Sutherland; Sutherland v Tallong Park Association Inc (EOD) [2007] NSWADTAP 19 University of Ballarat v Bridges [1995] 2 VR 418 UTSA Pty Ltd (In Liq) v Ultra Tune Australia Pty Ltd (1996) 21 ACSR 457 Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 Waters v Public Transport Corporation (1991) 173 CLR 349 Whiteoak v State of New South Wales (Department of Justice and Attorney General - Corrective Services NSW) [2012] NSWADT 135 Category: Principal judgment Parties: B Whiteoak (Applicant) State of New South Wales (Department of Justice and Attorney General - Corrective Services NSW) (Respondent) Representation: A Howell (Applicant) N L Sharp (Respondent) McGowan Lawyers (Applicant) G Singer, Department of Justice and Attorney General (Corrective Services NSW) (Respondent) File Number(s): 101067 reasons for decision Introduction 1Mr Whiteoak is serving a life sentence for murder. He complains that he was discriminated against by the Respondent on the grounds of race in breach of s 19 of the Anti-Discrimination Act 1977 (NSW) (AD Act) by the application of the Respondent's then "Inmates of Interest to Immigration Policy" in the decisions to classify him for security purposes as Category C1 on 28 December 2006, 25 June 2007, 15 December 2008, 4 December 2009 and 15 April 2010. He seeks declarations of unlawful discrimination and damages in respect of each of the complaints together with orders to effect reclassification and to grant external leave. 2Subject to the question of whether, by making the decisions complained of, it was providing Mr Whiteoak with a service, the Respondent admits that the decision on 15 December 2008 was discriminatory on the grounds of race but denies the remaining complaints. 3For the reasons which follow, the Tribunal has determined that by its classification decisions complained of, the Respondent was providing a service to Mr Whiteoak within the meaning of ss 4 and 19 of the AD Act. The Tribunal has further determined that except for the decision of 15 December 2008, the discriminatory nature of which has been admitted by the Respondent, the Respondent has not, by the remaining decisions complained of, discriminated against Mr Whiteoak on the grounds of race. Relevant background 4The Tribunal set out the relevant background in its decision in Whiteoak v State of New South Wales (Department of Justice and Attorney General - Corrective Services NSW) [2012] NSWADT 135 on 6 July 2012 (Whiteoak No 1) upon the Respondent's application for summary dismissal of the proceedings pursuant to s 102 of the AD Act. 5The relevant background is in the following terms (reciting Whiteoak No 1 at [3] - [7]): (3) The Applicant commenced a life sentence for murder on 16 September 1983. He has previous convictions for assault and indecent assault. On 16 December 1994, his life sentence was re-determined with the Applicant receiving a 15 year non-parole period. On 19 August 2008, his permanent residency visa was cancelled and he is to be deported at the end of his sentence. (4) The Applicant is classified as a 'serious offender' as defined by s 3 of the Crimes (Administration of Sentences) Act 1999 (NSW) ('C(AS) Act'). All matters pertaining to his security classification and placement are managed by the Serious Offenders Review Council ('SORC'), which is constituted by s 195 of the C(AS) Act, and which makes recommendations to the Commissioner for Corrective Services ('Commissioner') relating to prisoners under its management. (5) On 13 August 2002, the Commissioner's delegate approved a reduction in the Applicant's security classification from C2 to C3. This classification was maintained in decisions dated 24 September 2003, 11 December 2003 and 27 February 2004. (6) On 28 December 2006, the Acting Commissioner's regressed the Applicant's classification from C3 to C1 following the introduction of a new policy of 'Inmates of Interest to Immigration'. The C1 classification was confirmed in decisions by the Commissioner's delegate on 2 December 2008 [sic], 4 December 2009 and 5 April 2010 [sic]. (7) The Applicant completed a sex offender treatment program called 'Custody based intensive treatment program' ('CUBIT') on 29 January 2001. He then proceeded to undertake the CUBIT custodial maintenance program. He was later discharged from that program for misbehaviour on 5 February 2004. On 1 July 2009, CUBIT representatives treated the Applicant's attempt to defer undertaking CUBIT as a deemed refusal. ..." 6To this background should be added that in the period 7 January 2003 to 5 January 2005 the Applicant had ten escorted day leaves pursuant to s 26 of the C(AS) Act. The Applicant's day leaves were suspended in February 2005 after an inmate absconded while on escort. He has never been issued with a work permit under ss 6(1) or (2) of the C(AS) Act. 7The Respondent determined by decisions made on 13 December 2010 and 12 December 2011 that Mr Whiteoak's security classification should remain at Category C1. After successfully completing CUBIT in March 2012, Mr Whiteoak's security classification was progressed to Category C2 on 29 August 2012. History of the matter before the Tribunal 8On 23 December 2008, Mr Whiteoak lodged a complaint with the Anti-Discrimination Board (ADB) alleging discrimination on the grounds of race. 9On 17 June 2010, after investigation, the President of the ADB referred the complaint to the Administrative Decisions Tribunal (ADT) (as it then was) pursuant to s 93C of the AD Act. The President filed with the ADT the President's Summary of Complaint (President's Summary) and a bundle of documents (the President's Bundle). The complaint was characterised as discrimination on the grounds of race in the provision of goods and services in breach of ss 7, 19 and 53 of the AD Act. The claim was apparently for direct discrimination. The period of complaint was, at the time of referral, from 28 December 2006 to 24 April 2009. 10After non-compliance by the Applicant with several directions requiring him to file and serve Points of Claim and evidence, the proceedings were listed before the ADT on 27 July 2011 for hearing of the Respondent's application for summary dismissal pursuant to s 102 of the AD Act. 11A procedural history of the matter to the date of that hearing is to be found in Whiteoak No 1 at [9] to [22]. The Tribunal ordered that the complaint be amended pursuant to s 103 of the AD Act to include as grounds of complaint the classification decisions made by the Respondent on 4 December 2009 and 15 April 2010. The Respondent's application was dismissed and directions were made for the Applicant to file and serve Points of Claim and evidence within 28 days in default of which the complaint was to be dismissed in whole pursuant to s 102 of the AD Act. 12Points of Claim and evidence were filed on behalf of the Applicant on 3 August 2012. The Points of Claim made claims for direct and indirect discrimination. 13At a directions hearing on 29 August 2012, the Applicant was directed to amend its Points of Claim in two respects: (1)(1) To make clear that the refusal of Corrective Services to provide its various services set out in paragraphs 18 and 19 of the Points of Claim arose as a consequence of the classification decision; (2)(2) To provide particulars of paragraph 20 of the Points of Claim." 14The Applicant filed Amended Points of Claim on 12 September 2012. 15The Respondent filed its evidence on 18 October 2012. 16The proceedings were listed on 7 December 2012 for a preliminary hearing on the Respondent's application to strike out of certain parts of the Amended Points of Claim. On that day, the following orders were made: (1)(The Respondent's application to strike out those paragraphs identified in the Amended Points of Claim is allowed. (2)The Respondent to file and service Points of Defence by 12 December 2012. (3)Applicant to file and serve any Reply and any evidence in reply by 13 February 2012. (4)Applicant to notify the Tribunal and the Respondent of the outcome of his appeal to the Legal Aid Review Committee against the decision to terminate his grant of legal aid on the day on which he is notified of that decision by the Legal Aid Review Committee. (5)Liberty to either party to apply to have the matter relisted on 3 days' notice." 17The Respondent filed its Points of Defence on 11 December 2012. 18Further Amended Points of Claim were handed to the Tribunal on 4 April 2013. These removed the claim for indirect discrimination. 19The hearing listed for 3 days commenced on 3 April 2013. On 5 April 2013, during closing submissions after the luncheon adjournment, the Applicant made an application to amend the Further Amended Points of Claim so as to include the following additions to paragraph 20: (a) With respect to the classification decisions of 28 December 2006 and 25 June 2007, the Respondent applied a blanket assumption that non-citizens who had been notified of an intention to cancel their visa, posed an increased risk of security. (ab) With respect to 28 December 2006 decision to revoke the Applicant's external supervised leave permission applied a blanket rule that lawful non-citizens must have their external leave permissions revoked in the event the Respondent is notified of an intention to cancel an inmate's visa. (ac) With the respect to the classification decision of 15 December 2008 the Respondent applied a blanket policy that prevented lawful non-citizens from being classified below category C1/CAT 3 and the inmate revocation." 20The Respondent opposed the proposed amendment other than by way of the addition of para. 20(ac). 21At the conclusion of the hearing on 5 April 2013 the following orders were made: (1)Applicant to file and serve submissions on amendment application by 4.00 p.m. 10 April 2013. (2)Respondent to file and serve submissions on amendment application by 4.00 p.m. 12 April 2013. (3)Applicant to file and serve submissions on substantive matter by 4.00 p.m. 19 April 2013. (4)Respondent to file and serve submissions on substantive matter by 4.00 p.m. 3 May 2013." 22On 24 April 2013, the Tribunal made the following orders concerning the Applicant's application to amend the Further Amended Points of Claim: (1)The Applicant be granted leave to amend the Further Amended Points of Claim so as to include the following addition to paragraph 20: (aa) With respect to the classification decision of 15 December 2008 the Respondent applied a blanket policy that prevented lawful non-citizens from being classified below category C1/CAT 3 and the immediate revocation of any external leave permissions. (2)The application for amendment is otherwise dismissed; (3)Costs reserved." 23The matter was listed for oral submissions on 10 May 2013 and 11 June 2013. This later date was vacated and submissions concluded on 6 August 2013. 24On 1 January 2014, the ADT was abolished and its jurisdiction was acquired by the New South Wales Civil and Administrative Tribunal. This matter is a "part heard proceeding" within the meaning of cl 6 of Schedule 1 to the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). This Tribunal may exercise all the functions which the ADT had immediately before its abolition. The provisions of the Administrative Decisions Tribunal Act 1997 (NSW) (ADT Act), which would have applied to these proceedings had the CAT Act not been enacted continue to apply: cl 7(3) Schedule 1 to CAT Act. Evidence before the Tribunal 25There was before the Tribunal the President's Summary and the President's Bundle. Mr Whiteoak's evidence comprised his affidavit sworn 1 August 2012 and the affidavit of Frances McGowan, his solicitor, sworn 3 August 2012 and a bundle of annexures. Mr Whiteoak gave evidence by telephone and was cross examined. 26The Respondent's evidence comprised the affidavit of Terence Anthony Halloran, the Executive Director of Classification, Case Management and External Leave Programs of the Respondent sworn 17 October 2012 and the affidavit of David Luke Grant, the Assistant Commissioner - Offender Services and Programs of the Respondent sworn 18 November 2012. Mr Halloran and Mr Grant gave evidence and were cross examined. 27There was also before the Tribunal the affidavit of Glen Singer sworn 29 March 2011 in support of the application for summary dismissal and the documents exhibited thereto. The Respondent tendered a two volume bundle of documents. The Tribunal has had regard to and considered the evidence including the documents to which it has been referred by the parties. Scope of the complaint 28The Respondent apprehends that in the way in which the Applicant ultimately ran his case he was seeking to suggest that merely by taking into account the fact that the uncertainty of Mr Whiteoak's immigration status made him at that time an unquantified flight risk, the Respondent was discriminating against the Applicant on the grounds of race. Mr Whiteoak did not concede this. 29In his letter to the ADB received on 22 December 2008, Mr Whiteoak complained: "Firstly When Mr Woodham brought out his policy in 2005 with regards to inmates who are of interest to the Immigration Department, I was at that time of interest to the Department of Immigration although they had not made any form of decision with regards to deportation, ... The new policy took away my Day Leaves and reduced my classification down to a C1; ... I am hoping that you will be able to help me in regaining my C3 classification and Days Leaves. ... The Policy Mr Ron Woodham implemented was in effect a Kneejerk reaction to one inmate who absconded while on a day leave treating all inmates as if they were all potential escapees." 30In his letter of 24 April 2009 to the ADB Mr Whiteoak confirmed that he wished to proceed with the complaint. He repeated that his complaint concerned the regression of his classification from C3 to C1 on the basis that he was of interest to the Department of Immigration saying: "[i]t is discrimination because the policy decisions are treating me differently to what an Australian citizen is treated." 31The Respondent submits that the Applicant's complaint was that he was discriminated against because of the "Inmates of Interest to Immigration Policy" and that this is the way in which the Applicant has pleaded his case. 32The Respondent says that it would be prejudicial to permit an amendment during submissions and that the Respondent has had no time to prepare a new case in evidence. It says that if a new case had been notified within reasonable time a different approach may have been taken to the focus of the evidence and different evidence led about the appropriate hypothetical comparator. It is said that it would be a clear denial of procedural fairness to permit a fundamental change to the case of the Applicant at such a late stage. 33Causation is pleaded at para. 20 of the Further Amended Points of Claim as follows: "20 The respondent engaged in the conduct ... on the ground of, or on grounds that included, the applicant is not an Australian citizen ... including as follows: (a)With respect to the classification decisions of 28 December 2006, 7 June 2007 [sic] and 15 December 2008, the respondent required the applicant to demonstrate 'exceptional circumstances' to progress beyond Category C1 and treated the applicant as ineligible [for] work or program activity outside a correctional centre." "Exceptional circumstances" appears by reference to "unlawful non-citizens" in the Respondent's then Inmates of Interest to Immigration Policy. 34It is also pleaded with respect to the classification decision of 15 December 2008: "(aa) With respect to the classification decision of 15 December 2008 the respondent applied a blanket policy that prevented Lawful Noncitizens from being classified below Category C1/Cat 3 and the immediate revocation of any external leave permissions." 35With respect to the last two decisions the Applicant pleads: "(b) With respect to the classification decisions of 4 December 2009 and 15 April 2010, the respondent: (i) Treated the applicant was [sic] unable to participate in external leave programs as a result of his status as a national of the United Kingdom subject to deportation upon release in making the classification decisions; and/or (ii) Did not introduce any policy applicable to the classifications decision with respect to the applicant which had the effect of directly [sic] that the discriminatory approach applied between 2006 and 2009 no longer be followed; and/or (ii) Considered the classification of the applicant on the basis that his existing classification was Category C1 in circumstances in which his classification had been regressed from Category C3 to Category C1 for discriminatory reasons in 2006." 36The matter has proceeded by way of pleadings. Mr Whiteoak has filed Further Amended Points of Claim to identify his case and the Respondent has put on Points of Defence, called evidence and made submissions based upon the case so identified. The proceedings have been the subject of application for summary dismissal, three interlocutory applications concerning the form and amendment of the Points of Claim, a three day hearing and two half-days of submissions. Additionally, the affidavit evidence and the tendered documentary material run to well over 1,000 pages. Both parties are represented by experienced counsel and instructing solicitors. The Tribunal would expect that significant thought and preparation has gone into the running of the case based upon the pleadings. 37The Applicant has had adequate opportunity to settle the form of his pleading. The Respondent is entitled to meet the case as pleaded. In the Tribunal's view, it would be unfair upon the Respondent to allow the Applicant to depart from his case on the pleadings by reason of the way in which any submissions are put: see UTSA Pty Ltd (In Liq) v Ultra Tune Australia Pty Ltd (1996) 21 ACSR 457 at 459. The Tribunal will approach the matter on the basis of the parties' cases as pleaded. Relevant legislation 38Section 7 of the AD Act provides: "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 the perpetrator: a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, 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) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, 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 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." 39Section 19 of the AD Act 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." 40In s 4(1) of the AD Act "services" is defined as including: (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." 41Section 5 of the AD Act establishes that the Act binds the Crown in right of New South Wales and in all other capacities and thus applies to government departments. Therefore the AD Act applies to the Respondent. 42Section 53 of the AD Act renders an employer liable for the employee's discriminatory conduct in certain cases. It provides: "53 Liability of principals and employers (1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. (2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability. (3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act. (4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services." 43Accordingly, in order to make out his claims for discrimination, Mr Whiteoak will need to establish that the acts complained of occurred in the course of the Respondent providing him with a service. He will then have to establish by reference to a comparator that he was treated less favourably in the same circumstances or in circumstances which were not materially different. If so, he will have to establish that at least one of the grounds for his treatment was by reason of his race. The Inmates of Interest to Immigration Policies 44There was in evidence a policy adopted by the Respondent called the Inmates of Interest to Immigration Policy the subject of Commissioner's Memorandum No: 2006/28 dated 25 March 2006 (Old Inmates of Interest to Immigration Policy). Several versions of this document were referred to although they were not materially different. 45The policy provided relevantly: "The following departmental policy in relation to inmates who will, or may be removed (deported) from Australia at the cessation of their custodial sentence, became effective from 1 November 2005 and is incorporated into the November 2005 Interim Classification Placement and Procedures Manual. The details of this policy regarding specific groups of inmates are below: Progression to C3/CAT1: 1. Unlawful Non-Citizens Unless exceptional circumstances suggest otherwise, no inmate should be considered for progression to C3/Category 1, or for the issuing of a section 6(2)/26 order enabling work or program activity outside a correctional centre. Such inmates should not progress beyond C1/Category 3 security level. Unlawful non-citizens include those holding a visitor's visa, a student visa, a study visa, a work visa and illegal immigrants. Additional visa types may place the inmate in this category. [Emphasis added.] ... 3. Lawful non-citizens Inmates who are lawful non-citizens and have a permanent visa (usually resident or special category) but who have never been naturalized, may be considered for a section 6(2)/26 order enabling work or program activity outside a correctional centre. Such inmates may progress to C3/CAT1 security level but only after approval by the Commissioner for a serious offender/pubic interest inmate or the Directors' Committee for all other inmates. Recent advice from the DIMIA [sic] should be included with documentation to the SORC in the case of serious offenders and public interest inmates, or to the Directors' Committee in the case of all other inmates. Where the DIMIA [sic] notifies the Department and/or the inmate that he/she will be removed from Australia at the completion of his/her custodial sentence, the inmate is to be regressed to a security classification no lower than C1/Category 3, and any section 6(2)/26 order/leave permit should be revoked immediately. The lodging of an appeal to DIMIA [sic] by the inmate is not sufficient to stop this regression from occurring. Where the DIMIA [sic] notifies the inmate that he/she is to provide reason(s) for not being removed at the completion of his/her custodial sentence, any section 6(2) /26 order/leave permit is to be withdrawn and the inmate moved to a location of a C1/CAT 3 security standard. The inmate is to remain in such a location pending a final decision by the DIMIA [sic] in relation to the inmate's status. A regression in classification is not automatic. EXCEPTIONAL CIRCUMSTANCES Exceptional circumstances will be considered by the Commissioner for serious offenders and public interest inmates only when the inmate's application outlining exceptional circumstances is supported in writing by the General Manager of the centre in which the inmate is accommodated, and after the Commissioner considers a recommendation from the SORC/PRLC. Exceptional circumstances for non serious offenders and non public interest inmates will be considered by the Directors' Committee. This will only occur when the application from the inmate outlining the exceptional circumstances is supported in writing by the General Manager of the centre in which the inmate is accommodated. General Careful consideration is to be given to the type of visa an inmate may have, and confirmation from DIMIA [sic] is required in written form in all circumstances. The possession of a bridging visa enabling work in the community is not sufficient when considering an inmate's immigration status. When known, the alert screen should indicate whether the inmate is a lawful non-citizen or an unlawful non-citizen. All officers of the department are responsible for ensuring that such an alert is raised when such information becomes known." 46Another version of the Old Inmates of Interest to Immigration Policy, the subject of Terry Halloran's Memorandum dated 11 November 2005, provided additionally with respect to the treatment of lawful non-citizens: "Additional caution must be applied with respect to any inmate within this category being considered for progression, having regard to the additional incentives to escape for inmates facing uncertainty about removal (deportation)." This is contained in the Respondent's External Leave Programs Policy (ELP Policy). 47On 23 March 2009, the Commissioner issued Commissioner's Instruction No: 2/2009 headed "Inmates of Interest to the Department of Immigration and Citizenship" (New Inmates of Interest to Immigration Policy). 48The Policy provided relevantly as follows: "INSTRUCTION This Instruction replaces No 13/2006 and No 2006/38. In response to the need to streamline the exchange of information between this Department and Commonwealth Department of Immigration and Citizenship (DIAC) and to ensure that all inmates being considered for progression below C1/Category 3 are considered on their merits, the following procedures are to be implemented immediately ... Inmates of Interest to DIAC These procedures apply only to those inmates who are deemed to be of interest to DIAC. Such inmates are: a) inmates who are not Australian citizens; AND who are b) serving a total sentence of 12 months of [sic] more; OR c) serving a second or subsequent term of imprisonment so that their total time served on conviction in prison is 2 years or more; ...OR ... f) Serious Offenders ... Classification protocols An inmate who is a non-citizen but who is not of interest to DIAC, subject to the ordinary classification process. If DIAC advises that the inmate is not to be deported/removed, the inmate is subject to the ordinary classification process. Inmates who are non citizens and who remain of interest to DIAC and in that they are to be deported/removed or about whom DIAC has yet to make a decision are to be managed as follows. (i) Unlawful Non-Citizen "Unlawful non citizen" refers to an inmate who had no valid visa at the time of his or her incarceration. A recent decision by the Administrative Decisions Tribunal has determined that it is discriminatory to automatically exclude all unlawful non-citizens from progression below C1/Category 3 classification and from access to programs outside a correctional centre. Accordingly, "Unlawful Non-Citizens" have been added to the 'Public Interest Criteria' for the purposes of considering an inmate's progression to work or programs outside a correctional centre. Consequently, the Classification and Case Management Review Co-ordinator must refer all unlawful non citizen inmates to the Pre-Release Leave Committee (PRLC), a sub-committee of the Serious Offenders Review Council, for consideration of progress beyond C2D or Category 2D or for the issue of a section 6(2)/26 order. The PRLC will make a recommendation to the Commissioner for his determination. Inmates determined to be Serious Offenders will have their classification and the issuing of 6(2)/26 orders determined by the Commissioner after consideration of a recommendation by the Serious Offenders Review Council. Each case will be considered on its merits. (ii) Lawful Non-Citizen "Lawful non citizen" refers to an inmate who has a valid visa but is not an Australian citizen. The Classification and Case Management Review Co-ordinator must refer all lawful non citizens who are of interest to DIAC and who are not managed by SORC or any of its sub committees to the Director, Inmate Classification and Case Management for consideration of progress to C3 or Category 1. The Director will convene a 'Directors Review Committee' to make a final determination on the inmate's suitability for progression. Each case will be considered on its merits ..." 49By Commissioner's Instruction 02/2011 issued on 7 April 2011 the Instruction No 2/2009 was amended. The Instruction No 02/2011 provided: "INSTRUCTION This Instruction amends No 2/2009. Instruction No 2/2009 contained definitions of 'Unlawful Non-Citizens' and 'Lawful Non-Citizens'. I have recently been advised that these definitions were not accurate. The correct definitions are: 'Unlawful Non-Citizens' refers to an inmate who did not have a valid permanent residency visa at the time of his or her incarceration; and 'Lawful Non-Citizens' refers to an inmate who had a valid permanent residency visa (e.g. a Special Category Visa if a citizen of New Zealand) at the time of his or her incarceration ..." Is Citizenship an aspect of race? 50The definition of "race" in s 4(1) of the AD Act includes "nationality". The Tribunal has adopted the approach of treating the terms "citizenship" and "nationality" as synonymous: see Sydney University Post Graduate Representative Association (SUPRA) v Minister for Transport Services [2006] NSWADT 83 at [62] and [63]; Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308 at [66] and Richard v Director General, Department of Justice and the Attorney General (Corrective services NSW) [2011] NSWADT 158 at [118]. The Tribunal is satisfied that the Applicant's citizenship of the United Kingdom is an aspect of race for the purposes of ss 7 and 19 of the AD Act. 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. Differential treatment and the comparator 167The Appeal Panel in Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at [41] confirmed that there are two key components of a successful allegation of direct discrimination; the first being differential treatment and the second causation. As to what constitutes differential treatment the Appeal Panel found that the appropriate question to be asked was; "Did the [Respondent], on the ground of race ... treat [the Applicant] less favourably than [it] treated or would have treated [a person of a different race] in the same circumstances, or in circumstances which were not materially different?": see Aldridge at [44]. 168In order to consider differential treatment it is necessary to identify a comparator being a person without the relevant characteristics of the aggrieved person against whom the unfavourable treatment can be compared: see Purvis v State of New South Wales (2003) 217 CLR 92 at 222 169In Mohamed at [25] the NSW Court of Appeal held that: "It may be seen that the statutory concept of discrimination requires a comparative exercise. The comparison is to be made between the treatment of the aggrieved person and the manner in which the perpetrator treats or would treat a person of a different race or not having the characteristics that appertain generally to persons of the aggrieved persons race or are generally imputed to such persons ..." "One significant factor which arises from the form of the definition of discrimination is that it is likely to involve a comparison of apples and oranges. Contrary to the popular aphorism, there is nothing inappropriate in that, both being fruit. What will be required of the Tribunal is to compare evidence of what actually happened in relation to the complainant ... with hypothetical circumstances which may be based on little more than an abstract understanding of the appropriate conduct of police in similar circumstances which involved, by for example, two Caucasian families" at [26]. 170In these proceedings, no evidence was led as to the identity of an actual comparator. The parties made extensive submissions as to the appropriate hypothetical comparator. Accordingly, a comparison must be made between the actual treatment with hypothesised treatment to determine if the actual treatment was less favourable: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at [19]. 171The Applicant submits that the appropriate comparator is a hypothetical inmate being considered as part of the routine case plan review of an inmate required by C(AS) Act with all the material characteristics of the applicant who is an Australian citizen. If so, he says that the policy would not have been applied, it having no application to Australian citizens. 172The majority of the Court in Purvis held that in requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) of the DDA (which is in similar terms to s 7(1)(a) of the AD Act) required that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must be examined is what would have been done in those circumstances if the person concerned was not disabled. The Court found at 224 - 225 that the circumstances referred to are: "[a]ll of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the 'discriminator'. It would be artificial to exclude (and there has been no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different. ..." 173The Tribunal in Contreras-Ortiz at [76] found that because Australian citizens in detention cannot be persons of interest to immigration and are not vulnerable to exclusion or deportation at the end of their imprisonment it was not possible to postulate a comparison of the circumstances of the treatment of the Applicant with the "same circumstances" in which an Australian citizen would be treated. The position in these proceedings are the same. 174In the alternative the Applicant submits that the Tribunal would adopt the comparator identified and relied upon in Contreras-Ortiz at [78], namely an Australian citizen in the circumstances of the Applicant with the additional personal characteristic that he was to be extradited upon release. 175That is the formulation pleaded at paragraph 21 of the Further Amended Points of Claim where the persons to whom the Applicant is compared are: "Australian citizens at risk of extradition or removal from Australia upon release from a sentence of imprisonment." 176The Respondent proposed a comparator being an inmate with all the same characteristics as the Applicant save that he is not an unlawful non-citizen. The correct comparator it was said would therefore be an inmate convicted of repeat violence and sexual offences; who presented as a high risk of sexually and violently reoffending if he was released; who had unmet treatment needs via CUBIT and who presented with the possibility of enhanced risk of escape which had not yet been quantified because of some new change in circumstance. 177The Respondent's formulation appears to identify a hypothetical comparator who is "not an unlawful non-citizen". However, Mr Whiteoak's status varied over time. In the first two decisions complained of Mr Whiteoak was and was treated as a lawful non-citizen. The comparator proposed by the Respondent cannot accommodate Mr Whiteoak's change in status. 178On the question of the appropriate comparator, the Tribunal in Contreras-Ortiz considered whether the appropriate comparator should be an Australian citizen as opposed to a person of merely different citizenship to the Applicant who might not have been the subject of the policy: Contreras-Ortiz at [67] - [74]. Following its decision in SUPRA the Tribunal in Contreras-Ortiz determined that it was sufficient for the applicant to establish that he was treated less favourably than Australian citizens in the same or similar circumstances. In particular, the Tribunal found that the circumstance that other non-citizens with permanent visa status were not subject to the policy does not prevent a finding that the Applicant was not subject to less favourable treatment: Contreras-Ortiz at [73]. 179In the Tribunal's view, adopting SUPRA the appropriate comparator should be an Australian citizen in the same or similar circumstances. With that qualification and in light of the finding in Purvis at 224 that the relevant circumstances to be considered are: "all of the objective features which surround the actual or intended treatment of the disabled person ..." the Tribunal finds that the appropriate comparator would be an Australian inmate convicted of repeat violence and sexual offences; who presented as a high risk of sexually and violently reoffending if he is released; who had unmet treatment needs via CUBIT and who presented with the possibility for consideration as part of the routine case plan review required by the C(AS) Act with a possibility of enhanced risk of escape yet to be quantified and arising from a change in circumstances. 180Where the comparator is hypothetical the differential treatment and causation inquiries are determined as part of the same question: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 ALL ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133. 181The Tribunal must decide that the protected attribute was a ground for the less favourable treatment before it can conclude that the Respondent would have treated a hypothetical comparator without the attribute differently: Shamoon at [7], [8], [11], [55] - [62]; Dutt at [63]. This is because the Tribunal could only reach the conclusion that the Respondent treated the Applicant less favourably than a hypothetical person without [the protected attribute] would have been treated by determining that [the protected attribute] was the reason for the differential treatment: see Elliott v State of NSW (NSW Police Force) [2011] NSWADT 159 at [23]. 182Accordingly, the Tribunal will turn to consider the issue of causation in respect of each of the decisions complained of. The classification decision on 28 December 2006 183As part of the case plan review process described in the evidence of Mr Halloran referred to above, the Manager of Classification recommended relevantly: "Informed that submission is currently before the Minister for a determination on inmate's immigration status. Given this current status - inmate not to access any external leave programs until a decision is made available by DIMA. Note DIMA letter dated 14/7/2006. Regression to C1 supported until a decision is made by DIMA. This status can then be reviewed and reconsider security rating and placement orders." 184The SORC Assessment Committee recorded at its meeting on 5 December 2006: "The committee noted: currently C3 with supervised escorted leave only, MSPC. Serving a Life Sentence with a NPP that expired on 25 September 1998. The committee noted very good work reports and that Mr Whiteoak has refused the opportunity to do CUBIT. The committee advised that the main issue for discussion is the letter from DIMA: re his immigration status. Mr Whiteoak advised that he has commenced the process by writing to DIMA but has not heard from them. Mr Whiteoak also advised that the next parole hearing will be in July 2007. All staff has [sic] recommended that Mr Whiteoak be regressed to C1 due to the immigration issue and the Commissioner's directive ..." 185The SORC minutes recording its recommendations to the Commissioner regarding inmate's case plan recommended: 1. "Whiteoak security classification to be changed from C3 (escorted day leave) to C3 (no pre-release leave), and 2. Whiteoak's centre of the classification to remain Metropolitan Special Program Centre. Inmate to remain housed in a secure area for metropolitan in Special Program Centre." 186The minutes record SORC's reasons as being "escorted leave to be removed due to immigration status". 187Mr Grant confirmed in cross examination that he understood that the Applicant's conduct and attitude was "very good", that he had demonstrated no problems in the Unit, that he was always co-operative and polite and that there was nothing that he could recall or was disclosed on the papers which he considered when making his decision that would have warranted the Applicant being regressed because of his behaviour. He also accepted that there was nothing disclosed in the papers which he considered, other than the notification from the Department of Immigration, to indicate that anything had changed between the July 2006 case plan review (which he did not undertake) and the December 2006 case plan review which would warrant regression. 188Mr Grant was not prepared to accept that he would not have regressed the Applicant but for the notification from the Department of Immigration. However, he did accept that the notification from DIMA was "the trigger for making that decision. In terms of what caused me to make that decision, there were a whole series of considerations that I elaborated upon in my affidavit." 189Mr Grant said that Mr Whiteoak's CUBIT status was also taken into account. He said that he had a "particularly" strong view about sex offenders completing sex offenders' treatment prior to progression and that it would not have been out of the question for him to suggest that Mr Whiteoak could progress no further without undergoing sex offender treatment. 190Mr Grant confirmed that Mr Whiteoak had completed the CUBIT program and 4 years of CUBIT maintenance although it was his view that it had not been successful. 191On this issue, Mr Halloran also gave evidence that SORC would not have recommended a serious offender who was a sex offender for progression to C3 minimum security, which had been SORC's recommendation in relation to Mr Whiteoak since 2003 and up to and including December 2006, or for release on parole had they not successfully completed sex offender treatment. 192Chapter 14 of the Classification Manual at para 10 in respect of classification reviews for inmates known to have committed a sexual offence provides that: "A C3/CAT1 classification can only be given if the risk assessment indicates low to moderate risk of sexually reoffending or after the inmate has successfully completed the inmate therapeutic program." 193Mr Grant conceded that the matter of particular significance in his decision making, as recorded in the "comments" section of the SORC minutes, was the uncertainty associated with the Applicant's immigration status. He confirmed that his reason for regressing Mr Whiteoak's security classification was primarily because of the uncertainty of his immigration status. 194Mr Grant's evidence was that he applied an assumption that: "People who faced the prospect of deportation presented an increased risk of escape." 195He accepted that it was that assumption which was being referred to in the Old Inmates of Interest to Immigration Policy where it stated: "Additional caution must be applied with respect to any inmate within this category [lawful non-citizens] being considered for progression having regard to the additional incentives to escape for inmates facing uncertainty about removal (deportation)." 196Mr Grant conceded that the circumstance of liability to deportation was something that should be considered could potentially elevate risk of escape. It was an assumption he made based on his historical experience in managing the classification process that receipt of information about the possibility of deportation can have an impact on an inmate's thinking. 197Mr Grant in cross examination described his assumption as a "primary consideration". He said that it was his practice "to have regard to one of the consequences of the person being deported was the fact that they might, the receipt of that news might cause them to be a flight risk". 198Mr Grant conceded that his assumption as to increased risk of flight taken into account in the decision of 28 December 2006 did not apply unless Mr Whiteoak's immigration status was being considered. 199Mr Grant's evidence was that he was aware of the letter from the DIMA dated 14 July 2006 advising that Mr Whiteoak was of interest to the Department and that his visa was liable to cancellation because of his criminal conviction although no decision had yet been made. 200Mr Grant conceded in cross examination that by point 3 of the Old Inmates of Interest to Immigration Policy where DIMA notifies the inmate that he or she is to provide reasons for not being removed at the completion of his or her custodial sentence any s 6(2)/26 order/leave permit is to be withdrawn and the inmate moved to a location on a C1/Cat 3 security standard pending a final decision by DIMA in relation to the inmate's status. His evidence was that the decision to regress Mr Whiteoak from C3 to C1 satisfied the policy. He was aware that regressing Mr Whiteoak's security classification to C1 would have the effect that he was no longer eligible for supervised day release. 201Mr Grant confirmed that he did not have any knowledge that was personal to Mr Whiteoak about his view of being deported and did not cause any of those inquiries to be made. 202Mr Grant in his decision dated 28 December 2006 determined that the Applicant be "regressed to C1 pending consideration of immigration status". It was Mr Grant's evidence that in making the decision he was of the view that Mr Whiteoak was still a lawful non-citizen under the Old Inmates of Interest to Immigration Policy because his visa had not been cancelled. In making the decision he took into account cl 3 of the Old Inmates of Interest to Immigration Policy. 203On 10 January 2007, SORC sent to Mr Whiteoak a letter confirming that the decision of the Commissioner was that his "security classification be regressed to C1 pending consideration of your immigration status". 204There was in evidence a letter from the Commissioner dated 29 July 2009 which stated: "On December 28 2006. Inmate Whiteoak was regressed from a C3 to C1 classification. That decision was in line with the Department policy at that time that the department had received a 'notice of intention to consider cancellation of visa' against inmate Whiteoak from the Department of Immigration and Citizenship ..." 205In a further letter dated 12 April 2010 the Commissioner accepted that it was "the policy that resulted in [Mr Whiteoak's] regression in 2006." The position in these letters was in error. As a lawful non-citizen, Mr Whiteoak was not required to be regressed automatically. Mr Grant's unchallenged evidence is that he applied cl 3 of the policy to Mr Whiteoak as a lawful non-citizen in its terms. 206The Applicant pleads at paragraph 20 of the Further Amended Points of Claim: "20 The respondent engaged in the conduct set out in paragraph 19 above on the ground of, or on grounds that included, the applicant is not an Australian citizen for the purpose of ss 7 and 19 of [AD Act] including as follows: (a) with respect to the classification decisions of 28 December 2006, 7 June 2007 and 15 December 2008 the respondent required the applicant to demonstrate 'exceptional circumstances' to progress beyond Category C1 and treated the applicant as ineligible work or program activity outside a correctional centre [sic]." 207Accordingly, the Applicant says that the differential treatment, namely the classification of Mr Whiteoak as Category C1 on 28 December 2006, occurred by reason of the imposition upon the Applicant as a non-citizen of the requirement to demonstrate "exceptional circumstances" to progress beyond Category C1. The policy in operation at the time was the Old Inmates of Interest to Immigration Policy. The "exceptional circumstances" requirement applied only to unlawful non-citizens. Mr Whiteoak was a lawful non-citizen and was treated as such by Mr Grant in making the classification decision. There was no automatic regression of Mr Whiteoak to Category C1 nor was he treated as an unlawful non-citizen as had been the case in Contreras-Ortiz. 208Notwithstanding his pleading, Mr Whiteoak submits that he was treated less favourably than the comparator by reason of the application of the Old Inmates of Interest to Immigration Policy requiring him to be assessed with "additional caution" because it deemed lawful non-citizens the subject of a notification from DIMA to have, in the language of the policy, an "additional incentive to escape". It is said that that part of the policy was taken into account by Mr Grant in making the decision. Additionally, it is said that the policy treated Mr Whiteoak less favourably because it imposed "blanket" rules requiring any s 6(2)/26 order/leave permit to be withdrawn and the inmate to be removed to a location of a C1/Cat 3 security standard regardless of their classification. 209Mr Whiteoak says that the mandatory requirements in respect of lawful non-citizens in receipt of notification from DIMA would not have applied to the comparator and accordingly that he was regressed in circumstances where the comparator would not have been regressed. 210This is not the case which has been pleaded. The form of the pleading has been determined after several applications to the Tribunal. The Respondent has not prepared its case on the basis of the submission now put by Mr Whiteoak and would be prejudiced by having to meet such a case without notice. For the reasons previously expressed, the Tribunal considers it appropriate that the parties be kept to their cases on the pleadings. On the basis of the pleading, Mr Whiteoak's claim must fail as he was subject to no "exceptional circumstances". 211Even if causation had been pleaded in the way in which Mr Whiteoak sought to put it submissions the evidence establishes that Mr Grant's decision of 28 December 2006 arose in circumstances in which on 14 July 2006 DIMA had written to the Respondent advising that Mr Whiteoak's visa was liable to cancellation and that he had been asked to show cause as to why the visa should not be cancelled. In those circumstances, under cl 3 of the policy any S 6(2)/26 order/leave permit is to be withdrawn and the inmate moved to a location of a C1/Cat 3 security standard. This is what occurred. 212However, cl 3 provides that "regression in classification is not automatic." Mr Whiteoak's regression in classification to C1 was not mandatory. It arose upon Mr Grant in the exercise of his discretion determining that Mr Whiteoak presented as an increased risk of flight by reason of the notification received from DIMA. 213In Mr Whiteoak's submission his complaint in respect of all classification decisions stems from how he was treated in the context of scheduled case plan reviews and in particular from the fact that a characteristic generally imputed to persons who are of a different nationality, namely their liability to deportation under the Migration Act, caused him to be treated detrimentally in the case plan and classification review process. He has sought to establish that he has suffered detriment upon the application of a policy which operates only because of citizenship and has as its foundation the application of assumptions based on a characteristic of citizenship. The policy is that which required a person of different nationality who was notified that they may have their visa cancelled under the Migration Act and may be deported at some unspecified time in the future to be treated under the Old Inmates of Interest to Immigration Policy with "additional caution" because of the "additional incentives to escape" from custody. It is said that the effect of the policy was to cause a person to whom the policy is applied to be assessed as being an increased flight risk. 214Mr Whiteoak's submission appears to seek to introduce the characteristics extension found in s 7(2) of the AD Act which is said to be that it might be generally imputed to persons who are a different nationality that they are liable to deportation under the Migration Act. Section 7(2) broadens the scope of the prohibition on the grounds of race by making it unlawful to rely on an actual or assumed characteristic of people of a particular race, rather than on race itself, when treating the person less favourably. Whether a characteristic appertains to or is imputed to a particular race is a question of fact: see Monash University v Kapoor [1999] VSC 463 at [55]. Characteristics of race cannot be used as proxies for discrimination on the grounds of race: see Purvis at [130] per McHugh and Kirby JJ. 215Although in light of its finding above, the Tribunal does not have to determine the matter which was not argued by the parties in full the Tribunal would not be satisfied on the basis of the submission alone that the proposed characteristic can be said to be generally imputed to persons of a different nationality. The Old Inmates of Interest to Immigration Policy not only distinguishes between unlawful non-citizens and lawful non-citizens. As to lawful non-citizens it draws a distinction between those who have received notification from DIMA that they are liable to be deported and those who hold a resident's visa. The latter might progress to C3/Cat 1 security level and might be considered for an order enabling work or program activity outside a correctional centre. There are accordingly foreign nationals both within the operation of the Old Inmates of Interest to Immigration Policy and generally who hold a resident's visa and who cannot be said to have the proposed characteristic, any liability to deportation being conditional upon cancellation of the resident's visa. It would follow from this that any assumption including that made by Mr Grant that the likely deportation resulted in an increased flight risk was not an assumption based upon a characteristic of race. 216Even if that was not the case, there was no evidence before the Tribunal on the question of differential treatment that Mr Whiteoak's regression to C1 was less favourable to that treatment which would have been occasioned to an Australian inmate who presented with an increased risk of flight. Mr Whiteoak's s 26 leave permits had been withdrawn prior to the introduction of the policy in February 2005 whilst being moved to a location of a higher security standard. That did not occur as a result of Mr Grant's decision. For these reasons, in the Tribunal's view, even if pleaded on the basis of the submission as to the characteristics extension which Mr Whiteoak sought to advance, his claim would have failed. The decision dated 25 June 2007 217Mr Grant's evidence was that in his 25 June 2007 decision recorded on the 2007 SORC minutes, he agreed with SORC's recommendation that Mr Whiteoak's security classification "stay as is". His reasons for this were the same as those for his 28 December 2006 decision. The CMT minutes also record the recommendation of the Manager of Classification and Placement that Mr Whiteoak was to stay as is: "Note current DIAC - immigration issues and may not progress beyond C1 at this point." 218In cross examination, Mr Grant confirmed that he had made the decision because of Mr Whiteoak's pending immigration status and that the Old Inmates of Interest to Immigration Policy imposed a ban on Mr Whiteoak being afforded external leave or work permits and a requirement that he continue to be housed at a security standard required for C1 inmates. He did not have any information about Mr Whiteoak's attitude to the possibility that he might be deported and did not cause any inquiries to be made to ascertain those views. He applied the assumption that people who faced the prospect of deportation presented an increased risk of escape. 219As for the decision made on 28 December 2006, the Applicant has pleaded in respect of the decision of 25 June 2007 that Mr Whiteoak was subject to a requirement to demonstrate "exceptional circumstances" to progress beyond Category C1. As Mr Whiteoak was a lawful non-citizen this was not so and the Tribunal finds that he has failed to make out causation in respect of the case as pleaded. 220Even if his case had been pleaded on the basis on which Mr Whiteoak sought to make his submission as to causation, the operation of cl 3 of the Old Inmates of Interest to Immigration Policy was still applicable to him. Although requiring Mr Whiteoak to remain in the location of a C1/Cat 3 security standard, it did not require automatic regression in security classification. It was a matter for Mr Grant in the exercise of his discretion to determine the security classification. He did so having regard to flight risk. For the reasons already expressed and although not needing to determine the matter in light of the finding above, the Tribunal is not satisfied on the material before it that Mr Grant's assumption as to flight risk was based upon a characteristic of race. Nor is there evidence that Mr Whiteoak was treated less favourably than an Australian citizen the subject of security classification who was considered at risk of flight. Accordingly, Mr Whiteoak's claim upon the basis submitted would in the Tribunal's view have failed. Decision dated 15 December 2008 221Mr Whiteoak was advised by letter dated 19 August 2008 that his visa had been cancelled pursuant to s 501 of the Migration Act and that "DIAC will make arrangements in respect of Mr Whiteoak following his release from criminal custody, including immigration detention pending his removal from Australia if necessary". 222On 19 November 2008, the Tribunal published its substantive decision in Contreras-Ortiz. 223The SORC minutes of 2 December 2008 record that the CMT Assessment Committee noted: * "That the inmate is a C1 classification based on his immigration status and that the Commissioner's requirement that deportee inmates cannot progress past C1; * The inmate it advised that he has been informed that he will be deported upon release and provided the Committee with a document from DIAC regarding the cancellation of his visa; * The inmate advised that he will not be required to participate in maintenance programs as he will be deported ..." 224In making the recommendation SORC noted, among other things, that Mr Whiteoak was a deportee. The recommendation that his security classification remain C1 was approved by the Commissioner without comment. 225The Respondent admits that a finding that the Applicant's complaint that he was discriminated against by the Respondent in breach of s 19 of the AD Act in the decision of the Respondent to maintain the Applicant as C1 on 15 December 2008 is substantiated. This arises from the application to Mr Whiteoak of the Old Inmates of Interest to Immigration Policy which required mandatory regression at a time when his visa had been cancelled and he had been advised that he would be deported. 226The Tribunal finds that the claim is substantiated in respect of the classification decision made on 15 December 2008. The decisions dated 4 December 2009 and 15 April 2010 227Commissioner's Instruction No 02/2011 and a Memorandum from the Commissioner dated 10 May 2011 clarified that "lawful non-citizens" for the purposes of the New Inmates of Interest to Immigration Policy referred to an inmate who had a valid permanent residency visa at the time of his or her incarceration and whose visa was cancelled. However, on the basis of the form of Commissioner's Instruction No 2/2009 the Respondent treated Mr Whiteoak as an "unlawful non-citizen" for the purposes of the New Inmates of Interest to Immigration Policy. 228The New Inmates of Interest to Immigration Policy removed the automatic exclusion of unlawful non-citizens from progression below C1/Category 3 classification and from access to programs outside a correctional centre. The New Inmates of Interest to Immigration Policy provided that in respect of serious offenders who were unlawful non-citizens their classification and the issuing of a 6(2)/26 order would be determined by the Commissioner after consideration of a recommendation by SORC. It is provided that each case would be considered on its merits. 229It was put to Mr Grant in cross examination that an assumption that people at risk of deportation might impact upon the appropriate corrections environment, the subject of the Old Inmates of Interest to Immigration Policy, continued to apply under the New Inmates of Interest to Immigration Policy. Mr Grant's evidence was that the policy did not treat everyone differently but was a starting point and that flight risk was a legitimate consideration authorised by the legislation based on years of experience. 230Mr Grant's decision on 4 December 2009 was to reject Mr Whiteoak's progression. The reason for doing so is recorded as being "I am unclear what benefits are of progression to C2D". He noted "Reconsider after CUBIT". 231Mr Grant said that his "substantive" reason for not progressing Mr Whiteoak to a "C2" classification was that he had not, to Mr Grant's satisfaction, undertaken the CUBIT. His main concern was that Mr Whiteoak complete CUBIT to reduce his risk of re-offending. Secondly, he did not see that there was any benefit in progressing Mr Whiteoak to C2 classification since progression in his case would have no practical effect on the supervision and the management regime to which he was subject and would not give him access to any of the leave provisions that he was seeking. In making that decision Mr Grant said that he was aware that Mr Whiteoak's visa had been cancelled by DIAC in August 2008. Mr Grant said that he had also reviewed substantially more information about Mr Whiteoak's treatment history and his ongoing risk of offending including advice from department psychologists and then independent forensic psychiatrists. He said that the weight of this evidence confirmed for him the importance of Mr Whiteoak completing the CUBIT program prior to being considered for progression to minimum security. 232Mr Grant was also aware at the time of his decision that he had to consider Mr Whiteoak's security classification on the merits and that there was no rule as had existed under the Old Inmates of Interest to Immigration Policy in respect of unlawful non-citizens that an inmate could not be progressed beyond "C1". He was also aware of the New Inmates of Interest to Immigration Policy and said that he acted in accordance with it. Mr Grant was also aware of the complaint by Mr Whiteoak to the ADB on the basis of racial discrimination. 233Mr Grant indicated that the likelihood of deportation was also factored into his decision in the sense that he considered it more imperative for Mr Whiteoak to again complete the CUBIT program by reason of the lack of compulsory supervision following deportation. 234In respect of the 15 April 2010 decision to reject progression, Mr Grant determined to maintain the C1 security classification. His reasons were: "The same as my substantive reasons for my 4 December 2009 decision." 235He wrote his reasons on the last page of the 2010 SORC minutes: "Refer to my comments in November 2009. Progression to C2 contingent on participation in CUBIT." 236Mr Grant says that at the time of 15 April 2010 decision he was aware that Mr Whiteoak had commenced proceedings in the ADT alleging that his security classifications had been affected by race discrimination. He was also mindful of the Tribunal's decision in Contreras-Ortiz. He said that he did not apply a blanket rule in his decision dated 15 April 2010 and considered Mr Whiteoak's case on the merits. 237The focus of Mr Grant's reasoning is reflected in SORC's letters to the Applicant dated 14 December 2009 which stated: "The Council encourages you to reapply for and successfully complete the CUBIT program." and dated 23 April 2010 which stated: "The Council recommends that you successfully complete the CUBIT program before further progression of your security classification is considered." 238In order to establish causation, Mr Whiteoak must show that the alleged ground is one of the reasons for the differential treatment whether or not it is the dominant or substantial reason: s 4A AD Act. 239The test for causation is to consider why the aggrieved person was treated as they were. The focus is on the "true basis", the "genuine basis": Purvis per Gleeson CJ at 102 or the "real reason" per McHugh and Kirby JJ at 144 for the treatment. See also IW at 63 per Kirby J. It is the objective characterisation of the ground of the conduct which is decisive: IW at [59] per Kirby J. 240In Nicholls & Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 the Appeal Panel at [28] concluded that: "The question a tribunal should ask when addressing the causation element of direct discrimination is whether the person's sex, race, disability, etc. (including the extended definitions of those grounds) is at least one of the 'real', 'genuine' or 'true' reasons for the treatment. For that to be the case, the reason must have been a reason which, either alone or in combination with other reasons was the true basis for the treatment. ..." 241There must be a causal connection between the protected person's attribute and the unfavourable treatment: Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301. The conduct must have a "proximate bearing" or "causally operative effect": Aldridge at 47 referring to Director General of Education v. Breen [1982] 2 IR 93 at [95]. 242Motive or intention to discriminate is not required but differential treatment must be based on a prohibited ground: Purvis at 158 referring to Waters at 59 per Mason CJ and Gaudron J (Deane J agreeing); University of Ballarat v Bridges [1995] 2 VR 418 per Ormiston J; but note McHugh J at 401 in Waters to the contrary. Subjective "mental processes" will be considered: Purvis at 156 referring to Shamoon at [55]. The "but for" test for causation does not apply: Purvis at 166. 243As to the decisions dated 4 December 2009 and 5 April 2010, Mr Whiteoak has pleaded at para 20 of the Further Amended Points of Claim that he was treated less favourably "on the grounds of, or on the grounds that included, [he] is not an Australian citizen ...". 244He has sought to establish that in making the decisions in 2009 and 2010, Mr Grant continued to apply the assumption under the Old Inmates of Interest to Immigration Policy that the Applicant had an increased flight risk by reason of the notification from DIAC that he was to be deported and that the decisions were based upon that assumption as a characteristic of citizenship. The characteristics extension was not pleaded and for the reasons expressed earlier the Tribunal has determined as a matter of fairness that the parties should be held to their cases as pleaded. Nor is the Tribunal satisfied that any assumption that likely deportation resulted in an increased flight risk was an assumption based on a characteristic of race. 245Even if that was not the case the Tribunal is not satisfied on the evidence either that any assumption as to likely flight risk or that Mr Whiteoak's citizenship was a "true", "genuine" or "real" reason for his classification in the last two decisions whether or not it was the dominant or substantial reason under s 4A(b) of the AD Act. 246It was Mr Grant's evidence that his "substantive" reason for the 2009 and 2010 classification decisions was that he considered that Mr Whiteoak must complete CUBIT satisfactorily before being considered for progression. This is consistent with the contemporaneous reasons he gave for making the decisions referred to above. It is also consistent with SORC's letters to Mr Whiteoak dated 14 December 2009 and 23 April 2010 already referred to advising of the decision of his security classification. 247Mr Grant at the time of the 2009 decision had before him as part of the SORC minutes the written advice of Sue Knight the acting assistant director inmate classification and placement which stated: "The issue of Mr Whiteoak's deportation does not preclude progression in classification under current policies. ... The major issue of concern remains the failure of Mr Whiteoak to adequately address his offending behaviour by completing CUBIT and participating in an appropriate manner to enable positive therapeutic intervention to address his current high risk of recidivism." 248He was aware of the Tribunal's decision in Contreras-Ortiz and that a blanket rule was not to be applied. He was also aware of the New Inmates of Interest to Immigration Policy and he acted in accordance with it. Mr Grant was obliged to follow the Commissioner's Instruction which provided that each cased would be considered on its merits in its terms. Under "Preamble" in the New Inmates of Interest to Immigration Policy it is stated: "This Instruction is issued in accordance with the provisions of section 235B of [C(AS) Act]. Commissioner's Instructions amount to lawful orders and any staff member who intentionally disobeys or disregards this instruction, or is found to be negligent in the performance of their duties, may be liable to disciplinary action under the Public Sector Employment and Management Act 2002." 249Mr Grant acted within the operation of Chapter 14 of the Classification Manual which provides at paragraph 9: "Inmates assessed as being medium to high risk and who refuse to participate in programs available aimed at reducing their assessed risk factors are not to progress to a minimum security level of C3/Cat 1 (C2/Cat 2 for serious offenders) until successful participation occurs. Sex offenders assessed as suitable for a therapeutic but who refuse to undertake the appropriate program, may not progress beyond C2/Cat 2 (section 6(2), section 26 not to be given). ..." 250In paragraph 10 it is provided: "... A C3/Cat 1 classification can only be given if the risk assessment indicates a low to moderate risk of sexually re-offending or after the inmate has successfully completed the relevant therapeutic program ..." 251Paragraph 21 provides: "Serious offenders are not to participate in s 6(2) work/program activities or supervised or unsupervised external programs outside a correctional centre unless the Commissioner has given approval after considering a recommendation from the SORC (OPM 5.10)." 252In the Tribunal's view the evidence establishes that Mr Grant's decision was grounded upon Mr Whiteoak's non completion of CUBIT. 253Mr Grant's evidence was that he did consider the likelihood of deportation but in the context of it being more imperative for Mr Whiteoak to complete CUBIT by reason of lack of compulsory supervision following deportation. 254The Applicant submitted that Mr Grant "did not deny" that he had additionally taken into account an assumption that the likelihood of deportation resulted in an increased flight risk. However, the Tribunal was referred to no evidence of acceptance by Mr Grant that he had taken such an assumption into account in making the decisions. Mr Grant's evidence in respect of the 2010 decision was that he did not apply a blanket rule. 255The fact that such an assumption even if taken into account was not one of the "true", "genuine" or "real" reasons for the classification decision is supported by the evidence that once Mr Whiteoak had completed CUBIT and was undertaking CUBIT maintenance the Commissioner progressed him from C1 to C2 on 29 August 2012. It is also consistent with evidence from Mr Halloran that since the New Inmates of Interest to Immigration Policy was introduced in February 2009, thirteen unlawful non-citizens had progressed beyond C1 in their security classification. This evidence is inconsistent with the proposition that the Respondent was applying a policy declining progression in classification to unlawful non-citizens in receipt of notification from DIAC. 256There was no evidence as to any other reason for the classification decisions based upon Mr Whiteoak's status as a citizen of the United Kingdom. Accordingly, the Tribunal is not satisfied that one of the "true", "genuine" or "real" reasons for the classification decisions was Mr Whiteoak's race and that he has failed to make out causation in respect of the 2009 and 2010 decisions. That being the case, it is not necessary to proceed to consider the issue of differential treatment in respect of these decisions. FINDINGS 257The Tribunal is not satisfied that the Applicant's complaint is made out in respect of the decisions of the Respondent to classify him as Category C1 on 28 December 2006, 25 June 2007, 4 December 2009 and 15 April 2010. In light of the Respondent's admission the Tribunal does find that the Applicant's complaint that he was discriminated against by the Respondent in breach of s 19 of the AD Act in the decision of the Respondent to classify him as Category C1 on 15 December 2008 is substantiated. DAMAGES 258Mr Whiteoak claims damages for unlawful discrimination. This is not a claim made in the original complaint. Indeed, by his letter dated 1 June 2010 to ADB, Mr Whiteoak said expressly that he was not seeking monetary compensation. He does not claim that he has suffered financial loss. 259It was submitted on behalf of Mr Whiteoak that he had: (a)lost the opportunity to be housed in a less secure environment, consistent with a C3 designation, for several years; and (b)been denied the opportunity to engage in escorted pre-release leave, which is significant both of itself and additionally because of the impact that it has likely had on the Applicant's attempts to secure parole. 260Additionally, it is said that the Respondent continued to discriminate against him even on the Respondent's own admission in the 15 December 2008 decision a month after the Tribunal had found the Old Inmates of Interest to Immigration Policy was discriminatory (although no final orders had yet been made). It is said by the Applicant that compensation for what the Applicant has lost, albeit not financial loss, ought to be substantial. 261Section 108(2) AD Act provides that: "(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following: (a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, (b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, (c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, (d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both), (e) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination, (f) make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations, (g) decline to take any further action in the matter." 262Section 108(5) provides that: "(5) In making an order for damages concerning a complaint made on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons." 263Insofar as damages are claimed, s 111A(2) of the AD Act requires that any damages that the Respondent may be ordered to pay are not paid to the Applicant but into the Victim's Support Fund to be expended as money forming part of that Fund. 264After reviewing the authorities the Tribunal considers that the following principles should be borne in mind when considering a claim for damages under s 108 of the AD Act. (a)The Tribunal may order the Respondent to pay damages for any loss or damage suffered by reason of the Respondent's conduct. The Applicant bears the onus of proving, on the balance of probabilities, that he has sustained the loss he claims. The loss must be proven with a reasonable degree of certainty: Sutherland v Tallong Park Association Incorporated (No. 2) [2006] NSWADT 287 at [7] referring to Mooney v Commissioner of Police (No 3) [2003] NSWADT 18. (b)The question is what loss or damage occurred by reason of the unlawful conduct: Sutherland at [7]. (c)There must be a connection between the unlawful conduct and the loss or damage not between an intervening lawful event and the loss: Tallong Park v Sutherland; Sutherland v Tallong Park Association Inc (EOD) [2007[ NSWADTAP 19 at [66] referring to Commissioner of Police v Mooney (No 3) [2004] NSWADTAP 22. The question is whether the defendant's breach "materially contributed" to the loss or damage suffered even if other factors more significantly caused the loss (unless intervening conduct caused the loss): Tallong Park at [66]. (d)Damages for breach of the AD Act must be compensatory not punitive: Cooper v Western Area Local Health Network [2012] NSWADT 39 at [89] referring to Purvis. (e)Such matters as injury to feelings, distress and humiliation, the appropriate level of damages can be difficult to determine: Sutherland at [7] referring to Hall v Sheiban (1985) ALR 503 at 543. (f)Factors which would inform the level of damages include; the severity of the breach, the fact that it was a one off incident, the context of the incident and the significance of the ongoing effects of the conduct: Cooper at [91]. Other cases might be useful on guidance on the kinds of damages awarded for breaches of the AD Act although are not binding as to the proper amount of damages: Cooper at [90]. (g)The amount awarded depends on the "experience and good sense" of the Tribunal member: Cooper at [86] referring to Alexander v Home Office [1988] 2 All ER 118 per May LJ at 122. (h)As to non-economic loss the Tribunal should assess what is fair, reasonable and just: Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 at [63]. It is best to award restrained damages due to the impossibility of assessing the monetary value of non-economic loss: Alexander at 122. However, damages for non-economic loss should not be minimal as this would tend to trivialise or diminish respect for the public policy behind Anti-Discrimination legislation: Commonwealth v Evans [2004] FCA 654 at [32] referring to Alexander at [975]; Bonella v Wollongong City Council [2001] NSWADT 194 at [121]. (i)As to quantification of loss, the opportunity cost (that is the chance lost by reason of the wrong) must simply be assessed: La Trobe Capital & Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd (2011) 190 FCR 299; FCAFC 4 at [83]. Damages are to be assessed proportionate with what chances the gain are thought to be La Trobe: at [84]. (j)Damages which involve consideration of future possibilities and past hypothetical facts need to be assessed according to "the degree of probability that an event would have occurred, or might occur". The award of damages is to be adjusted to reflect the degree of probability: La Trobe at [86] referring to Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; 120 ALR 16 at [335]. (k)Where the loss is a lost opportunity to acquire a benefit the plaintiff bears the onus of establishing that the loss was caused by the conduct of the defendant and discharges that onus by establishing a chain of causation that continues up to the point where there is a substantial prospect of acquiring the benefit sought by the plaintiff: La Trobe at [87]. (l)Having reached the point that a loss is established its value must be estimated. This must be done no matter how difficult the task even if some guess work is involved: La Trobe at [90]. (m)Whilst the issue of loss caused by a defendant's conduct must be established on the balance of probabilities, hypotheses and possibilities, the fulfilment of which cannot be proved, must be evaluated to determine the amount or value of the loss suffered. Proof on the balance of probabilities has no part to play in the evaluation of such hypotheses or possibilities. Evaluation is a matter of informed estimation: La Trobe at [87]. (n)The award must be fair and reasonable and also arbitrary: Vento referring to Andrews v Grand & Toy Alberta Ltd 919780 83 DLR (3d) 452 at 475 - 476. 265Mr Whiteoak has succeeded only in his claim in respect of the decision made on 15 December 2008 admitted by the Respondent. Although the decision complained of arose some days after the handing down of the Tribunal's decision in Contreras-Ortiz, final orders were not made until 20 January 2009. The evidence is that the Respondent took steps to introduce a non-discriminatory policy with respect to unlawful non-citizens to which policy Mr Whiteoak was then subject from its implementation on 23 March 2009. 266In light of the findings which the Tribunal has made, Mr Whiteoak would only be entitled to compensation for loss of the opportunity to be housed in a less secure environment and consequential loss of the opportunity to engage in escorted pre-release leave arising from the decision of 15 December 2008. 267On the basis of the authorities referred to, Mr Whiteoak must establish on the balance of probabilities that he sustained the loss he claims and that there is a reasonable degree of certainty that this has arisen by reason of the unlawful conduct. The Tribunal is satisfied that by the decision complained of Mr Whiteoak lost the opportunity to be progressed until the decision of 4 December 2009 which continued his security classification as Category C1. He also lost the opportunity in that period to undertake escorted pre-release leave which was not available to inmates subject to the C1 security classification. 268As identified in La Trobe any damages for loss of opportunity must be assessed proportionately with what the chances of the gain are thought to be. The Applicant made no submissions on the calculation of quantum of damages other than to say they should be "substantial". 269There was evidence in respect of the last two classification decisions that the reason for maintaining Mr Whiteoak at Category C1 was his failure to undertake the CUBIT program. There is evidence that Mr Whiteoak's failure to complete CUBIT was also of concern to the Respondent at the time of the 15 December 2008 decision. The relevant SORC minutes recommended CUBIT but noted that Mr Whiteoak had advised that he would only participate if the Department of Immigration reviewed his deportation. A psychological report attached to the minutes noted that Mr Whiteoak was in the moderate to high category of risk to the community. In the parole report it is noted that Mr Whiteoak insisted that he does not need to complete CUBIT. The recommendation referred to the fact that Mr Whiteoak was not participating in the sex offender programs and noted the psychologist's remarks from 1993 that he was "unlikely to respond to therapeutic intervention quickly if at all". In the case plan progress information it was noted that Mr Whiteoak was not interested in CUBIT (being a high intensity program) only in undertaking CORE (being a low intensity program) even though he was assessed as needing to redo CUBIT. Additionally, there was evidence from Mr Grant in respect of the 2006 decision that he had a particularly strong view about sex offenders completing sex offender's treatment prior to progression and that it would not have been out of the question for him to suggest that Mr Whiteoak could progress no further without undergoing sex offender treatment. There was no evidence of any change in circumstance which would have been likely to result in a progression in classification. 270Accordingly, even had the discriminatory policy not applied to the decision of 15 December 2008, it was available to the Respondent to maintain Mr Whiteoak's C1 classification by reason of his non completion of CUBIT. This would have carried with it the inability to participate in pre-release leave programs. 271In light of his existing C1 classification at the time of the decision, the concern about his participation in the CUBIT program and the fact that there was no evidence of any change in circumstances warranting a progression in classification, the Tribunal is not satisfied that Mr Whiteoak's opportunity for progression and housing in a less secure environment and to engage in escorted pre-release leave which was lost was more than residual. In those circumstances, and taking into account the authorities referred to, the fact that the Respondent introduced a New Inmates of Interest to Immigration Policy in March 2009 to which Mr Whiteoak was subject, the fact that the loss of opportunity was for a relatively short duration and was overtaken by a decision which has been found not to be discriminatory, in the Tribunal's view it is appropriate to assess the quantum of damages at the lower end of the scale. Accordingly, the Tribunal assesses Mr Whiteoak's damages for loss of opportunity in the amount of $500. ANCILLARY RELIEF 272Section 108(2)(c) of the AD Act empowers the Tribunal to order a respondent to "perform a reasonable act or course of conduct to redress any loss or damage suffered by the complainant". 273Mr Whiteoak seeks an order pursuant to s 108(2) of the AD Act requiring that he be reclassified to C3 for the purposes of cl 22 of the C(AS) Reg and be granted external leave in accordance with s 26 of the C(AS) Act. 274Mr Whiteoak says that the Tribunal is empowered to make such an order by reason that the legislature has seen fit to bind the Crown (see ss 5 and 4B AD Act) which includes the Respondent and there is nothing in the legislative scheme which would lead to the conclusion that s 108(2)(c) would not empower the order sought. He submits that such an order would be consistent with the general command that the Tribunal act "according to equity, good conscience and the substantial merits of the case" under s 73(3) of the ADT Act. This provision has been taken up in s 38(4) of the CAT Act. 275The Respondent submits that the Tribunal's power under s 108(2) of the AD Act cannot override the legislative regime in place for the classification of inmates under C(AS) Act and C(AS) Reg including: (a)s 70 of the C(AS) Act in relation to SORC's function of making recommendations on security classifications of serious offenders; (b)s 197(2)(a)(i), (ii) and 2 of the C(AS) Act concerning the functions of SORC in relation to security classification and placement of serious offenders as well as providing reports and advice to the Parole Authority concerning release of serious offenders to parole; and (c)s 232(a1) of the C(AS) Act in relation to the Commissioner having the "care, control and management of all offenders who are held in custody ..."; (d)Regulation 27(1)(c) and (3) of C(AS) Reg in relation to the procedure for the Commissioner to change a serious offender's classification. 276The Tribunal is not satisfied on the basis of the submission on behalf of the Applicant that it has the power under s 108(2)(c) of the AD Act to effectively step into the shoes of the Respondent and exercise its powers for the purpose of classification. The Applicant has submitted that where two statues of the same legislature potentially intersect, it is long settled that "there is a general presumption that the legislature intended that both provisions should operate": per Gaudron J in Saraswati v The Queen (1991) 172 CLR 1 at 17. In the Tribunal's view, that is not authority for the proposition that it has the power under s 108(2) of the AD Act to bypass the steps required by the legislative regime for classification including the participation of SORC. Nor in the Tribunal's view would such an order be appropriate where the decision the subject of the complaint which has been substantiated, being the only decision in respect of which the Tribunal could make an order under s 108(2), has been overtaken by five subsequent classification decisions, the last progressing Mr Whiteoak to category C2. The Tribunal declines to make the order sought. 277In the alternative, Mr Whiteoak seeks an order requiring the Respondent to consider afresh the exercise of the powers or functions conferred by ss 6 and/or 26 of the C(AS) Act and/or cl 22 of the C(AS) Reg in relation to him. This second order is of the type made by the Tribunal in Contreras-Ortiz. 278The decision in respect of which relief is sought is that of 15 December 2008 occurring at a time when the Old Inmates of Interest to Immigration Policy was in place. Since that classification and the decision in Contreras-Ortiz the Respondent issued the New Inmates of Interest to Immigration Policy on 23 March 2009 supplemented by the Commissioner's Instruction 02/2011 dated 7/4/11 and the Commissioner's Memorandum dated 10 May 2011. These provided for an amended regime for the treatment of unlawful non-citizens and lawful non-citizens whose permanent residency visa had been cancelled by DIAC and relevantly that the classification decisions would be considered on their merits. The classification decisions of the Commissioner on 4 December 2009 and 15 April 2010 were made pursuant to the New Inmates of Interest to Immigration Policy and the Tribunal has determined that the claim for discrimination in respect of those decisions is not made out. Additionally, in the classification decision made on 29 August 2012 after Mr Whiteoak had completed a second round of CUBIT his classification was progressed to C2. 279There is no evidence of a concern about continuing discrimination. In light of the Respondent's change in policy, the intervening decisions and Mr Whiteoak's ultimate progression to C2, the Tribunal finds that the order sought would lack utility and no order is made. 280Mr Whiteoak lastly seeks an order pursuant to s 108(2)(c) permitting him to undertake escorted external day leave. It is said that such an order would be a "reasonable act" designed to "redress" the loss or damage suffered by Mr Whiteoak arising from the regression of his security classification to C1, the cancellation of his escorted external day leave program, and the maintenance of that position for more than 6 years. It is noted that the Applicant had, prior to being regressed, been classified as C3 for a period in excess of 4 years and performed ten escorted day leave excursions without incident. 281The Tribunal's attention was also drawn to the progression of the Applicant's security classification to C2 meaning that he need not be confined by a physical barrier at all times but needed some level of supervision by a correctional officer or some other authorised person. It was further submitted that by the progression in classification the Respondent had determined that Mr Whiteoak might carry out community service work at the correctional centre for the Department or a public or local authority. Mr Whiteoak drew the Tribunal's attention to the operation of the Classification Manual which provides for progression towards a lower security rating and access to pre-release leave programs with a presumption that the inmate will always obtain significant benefit from such programs. 282Additionally, the Tribunal's attention was drawn to Chapter 20 of the Classification Manual noting the risk of re-offending and decreasing community safety upon the release of an offender in the community without access to some external leave programs and noting the recommendation in the CUBIT report that it is a priority for Mr Whiteoak to be gradually reintegrated into society at the earliest opportunity. 283For the reasons already expressed in respect of the Applicant's request for an order for reclassification the Tribunal is not satisfied that it has the power to make the order sought in light of the operation of the legislative classification scheme. Additionally, the Tribunal has found nothing discriminatory in the making of the classification decisions post 15 December 2008 to which the consideration of participation in leave programs is tied. Accordingly, there is no basis for the order sought and the order is declined. COSTS 284The Applicant has sought his costs of the proceedings. Section 60 of the CAT Act provides: "60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b)whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (5) In this section: 'costs' includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal." 285The Applicant says that there are special circumstances warranting an award of costs including that the Respondent unnecessarily prolonged the proceedings, in particular by seeking to have the proceedings struck out in circumstances where that application was doomed to fail. He says that the complaint was never lacking in substance by reason, at least, of the admissions made on the summary dismissal application by the Respondent. 286The Applicant further says that the Respondent continued to unlawfully discriminate against the Applicant in the 15 December 2008 decision on its own admission even though the Old Inmates of Interest to Immigration Policy had been found to be unlawfully discriminatory in Contreras-Ortiz. 287The Applicant lastly says that the hearing was made unnecessarily complicated and long by reason of the Respondent's withdrawal of the admissions as to what constituted a service said to have been made in Whiteoak No 1. 288Prior to its amendment by the Administrative Decisions Tribunal Amendment Act 2008 (NSW) in January 2009, s 88(1) of the ADT Act provided that the ADT might award costs in relation to proceedings before it, "but only if it is satisfied that there are special circumstances warranting an award of costs". This provision was similar in terms to s 60(2) of the CAT Act and the authorities in which the operation of s 88(1) was considered might inform the interpretation of s 60(2). "Special circumstances" under s 88(1) of the ADT Act before amendment was interpreted to mean that costs will only be awarded where there are circumstances that take the matter out of the ordinary course of events: Brooks Maher v Cheung [2001] NSWADT 18 or where there are factors which extend beyond those reasonably connected with the usual or ordinary pursuit of a claim: Kondos v Citadin Pty Ltd (LSD) [2003] NSWADTAP 7 at [25]. 289The Respondent was put to its application the subject of the decision in Whiteoak No 1 after non-compliance by the Applicant with several directions requiring him to file Points of Claim and evidence. The application for summary dismissal was put on two bases. Although it was unsuccessful in establishing that the complaints were lacking in substance, the Tribunal did conclude that the Applicant had failed to prosecute the complaint and made a guillotine order requiring the Applicant to comply with certain directions in default of which the complaint would be dismissed. 290For the reasons expressed above, the Tribunal did not consider that the concessions made by the Respondent on the application for summary dismissal were binding and, even if they constituted admissions, the Respondent should be given leave to withdraw them having been made erroneously. 291The disposal of the matter has also been the subject of a successful application on the part of the Respondent to strike out certain parts of the Amended Points of Claim and a partially successful application by the Applicant to further amend his Further Amended Points of Claim. The issue of what constituted "services" was strongly contested at the substantive hearing. An admission was made by the Respondent as to the 15 December 2008 decision meaning that the Applicant did not need to incur the costs of establishing that part of his claim subject to the proof of what constituted a service. The Applicant did not succeed in his claims in respect of the remaining classification decisions. 292For these reasons the Tribunal is not satisfied that there are special circumstances within the contemplation of ss 60(2) and 60(3) of CAT Act warranting an award of costs and no order is made. ORDERS 293The Applicant's complaint that he was discriminated against by the Respondent in breach of s 19 of the Anti-Discrimination Act in the decision of the Respondent to classify him as C1 on 15 December 2008 is substantiated. 294The Respondent is to pay the Applicant damages pursuant to s 108(2)(a) of the Anti-Discrimination Act 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 to be expended as money forming part of that Fund. 295The Applicant's complaints are otherwise dismissed. ********** 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 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: 14 April 2014