Arnesen v Commissioner, NSW Department of Corrective Services [2008] NSWADT 294

Arnesen v Commissioner, NSW Department of Corrective Services [2008] NSWADT 294

Consideration of Mr Arnesen's application to vary his inmate classification was a service provided by the Commissioner within the meaning of the Anti-Discrimination Act 1977. However, the evidence did not establish that requiring him to prove Australian citizenship was less favourable treatment on the ground of his Canadian national origin. The policy referred to citizenship status rather than place of birth, susceptibility to removal or deportation was not proved to be a relevant characteristic, and there was insufficient evidence that an inmate born in Australia would have been treated differently. The complaint therefore failed.

Jurisdiction
Australia
Judgment Date
31 October 2008
Procedural Posture
Race Discrimination Complaint Concerning Provision of Services Under the Anti Discrimination Act 1977 / Final Decision After Hearing
Outcome
Complaint dismissed; no order for costs.
Legal Topics
['race Discrimination' 'national Origin' 'provision of Services' 'prisoner Classification' 'comparator Evidence' 'citizenship Status']
['anti Discrimination Law' 'administrative Law' 'correctional Services'] ['race Discrimination' 'national Origin' 'provision of Services' 'prisoner Classification' 'comparator Evidence' 'citizenship Status']

Case Brief

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Procedural Posture

Race Discrimination Complaint Concerning Provision of Services Under the Anti Discrimination Act 1977 / Final Decision After Hearing

Legal Issues

  1. 1 ["Whether consideration of an inmate's application to vary correctional classification was a service within the meaning of the Anti-Discrimination Act 1977." 'Whether requiring Mr Arnesen to establish Australian citizenship before varying his classification was less favourable treatment on the ground of national origin.' 'Whether susceptibility to removal or deportation under the Migration Act 1958 (Cth) was a characteristic appertaining generally to, or generally imputed to, persons born in Canada or persons born outside Australia.' 'Whether the evidence showed that an inmate born in Australia would have been treated differently in the same circumstances.']

Ratio Decidendi

Consideration of Mr Arnesen's application to vary his inmate classification was a service provided by the Commissioner within the meaning of the Anti-Discrimination Act 1977. However, the evidence did not establish that requiring him to prove Australian citizenship was less favourable treatment on the ground of his Canadian national origin. The policy referred to citizenship status rather than place of birth, susceptibility to removal or deportation was not proved to be a relevant characteristic, and there was insufficient evidence that an inmate born in Australia would have been treated differently. The complaint therefore failed.

Court Disposition

Complaint dismissed; no order for costs.

Orders

  • ['The complaint is dismissed.']