Play the race card, get out of jail

Screen Shot 2014-04-02 at 9.02.01 amNICK CATER

Published in The Australian, April 29, 2014


WHITEOAK v State of NSW has reached its inexorable conclusion. The lawyers have brushed off the crumbs and rolled up the picnic rug. 

The next step, if the Court of Common Sense still sits in NSW, is to bring the Anti-Discrimination Board, the Legal Aid Commission and the Civil and Administrative Tribunal to account. They must explain why they did not put their heads together and drop this risible case before it turned the state’s anti-discrimination legislation into a complete and utter joke.

The implication of the tribunal’s 26,400-word judgment is that anyone can play the race card, even Barry Whiteoak, a white, Anglo-Saxon murderer and serial rapist who will deported back to Britain if he ever completes his life sentence. Whiteoak, the tribunal has now ruled, has been denied a service by the Correctional Services Department because he is British. Whiteoak was jailed in 1983 for raping, strangling and stabbing Noreen Hannon, a 25-year-old nurse, in her Parramatta flat and dumping her naked body in the lift.

In 2002, Whiteoak’s classification was changed to the minimum security category C3, allowing him to apply for day or weekend release. It was clearly a mistake. Two years later Whiteoak was thrown off a sex offence rehabilitation program for misbehaviour and was deemed to present a moderate to high risk of reoffending. A review of Whiteoak’s criminal history suggests it would be foolhardy to grant him parole. Whiteoak murdered Hannon while on parole for the rape of another woman, whom he had assaulted while on parole for indecently assaulting a third. Whiteoak was also of interest to the Department of Immigration, since he was not an Australian citizen and therefore could be deported back to Britain on release from jail.

The then corrective services commissioner, Ron Woodham, one of the few public servants to have acted decently in this whole sorry affair, decided it was potentially dangerous to allow White­oak out on leave. In Woodham’s opinion, White­oak’s uncertain immigration status made him an unquantified flight risk. Indeed another non-citizen had escaped under just such a circumstance in 2005. Woodham decided to reinstate Whiteoak’s C1 status.

Whiteoak complained to the Anti-Discrimination Board, which judged he could have a case under the 1977 NSW Anti-Discrimination Act, section 19 of which states: “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.” He was assisted by the exceptional definition of race in the NSW legislation that includes nationality as well as colour, descent and ethnic, ethno-religious or national origin. Thus Whiteoak complained that the decision to cancel his permanent residency visa was “strongly racist”. He sought the board’s help “in regaining C3 classification and Day Leaves as Day Leaves are a major part of the Pre-Release Program that theParole Board requires”.

The board’s president, Stepan Kerkyasharian, had the power under section 92(1) of the act to throw out the complaint on the grounds that it was “frivolous, vexatious, misconceived or lacking in substance”. He did not, suggesting he saw some merit in Whiteoak’s claim that the denial of day release “was based solely on the fact that I am a British subject who is in gaol and not on my offensive behaviour”.

“It is discrimination because the policy decisions are treating me differently to what an Australian citizen is treated,” Whiteoak wrote to the commissioner. “I do not want monitary (sic) compensation as the change in classification has not cost me any money… I want you now to use all the powers available to you and your organisation to persuade or force the Corrective Services to change inmate’s classifications back.”

The tribunal too could have rejected Whiteoak’s vexatious and insubstantial case. Its refusal to do so, despite an application by the state’s lawyers, has probably cost taxpayers hundreds of thousands of dollars, if not more. It has funded Whiteoak’s legal aid, multiple procedural applications, a three-day hearing, two half-days of submissions, and the discovery and circulation of more than 1000 tendered documents. Both parties have been represented by experienced counsel and instructing solicitors.

Two weeks ago the tribunal ruled that this devious, dysfunctional, despicable human being was a victim of racism. They awarded him $500 compensa­tion, which mercifully will be redirected to victims of crime. Is the tribunal really suggesting thatWoodham was motiv­ated by rac­ism? Could he not have been trying to protect the rights of NSW residents by keeping a dangerous offender off the streets until he could be deported?

More serious, however, are the two extraordinary assumptions underpinning the tribunal’s ruling. First, the tribunal accepted that the categorisation of prisoners is “a service” under the terms of the act. Second, the tribunal assumed that nationality, citizenship and race are synonymous. If this is the case, we must rewrite the Macquarie Dictionary entry that defines race as “a group of persons connected by common descent” or “a group of tribes or peoples forming an ethnic stock”. There are other definitions, but every one of them links race to biology, as the word must unless it is to be stripped of any useful meaning. Surely the tribunal is not claiming that everyone holding an Australian passport shares a common race, for that would be a killer blow to the race discrimination industry, putting hundreds of human rights lawyers out of work.

By devaluing the notion of rac­ism to nothing more than an arbitrary form of victimhood, the tribunal has not helped those who wish to defend the federal Racial Discrimination Act against the government’s attempts to amend it. The judgment exemplifies the case opponents of the RDA have argued all along: that anti-discrimination legislation is just a game for lawyers who search for any crack in the door through which their client can enter the victims club. It is human rights devoid of any sense of proportion, prudence or natural justice; human rights as a sledgehammer to settle petty grievances; human rights that creates more red tape and employment for bureaucrats; human rights that turns courts and tribunals into theatres of the grotesque.

The purpose of human rights legislation, Gough Whitlam said in 1975, was to “build a climate of maturity, of goodwill, of co-operation and understanding at all levels of society”. Never, in his wildest dreams, would he imagined a case such as Whiteoak v State of NSW.