Anderson v State of NSW (NSW Police Force)
[2013] NSWADT 170
•29 July 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Anderson v State of NSW (NSW Police Force) [2013] NSWADT 170 Hearing dates: 4 June 2013 Decision date: 29 July 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave is refused for the applicant's complaint of sex and disability discrimination against the State of NSW to proceed
Catchwords: ANTI-DISCRIMINATION - whether phone call by police officer to applicant inquiring about possible criminal offence constitutes sex or disability discrimination in the provision of services Legislation Cited: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Police Act 1990Cases Cited: IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1
Jones v Ekermawi [2009] NSWCA 388
Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349Category: Interlocutory applications Parties: Annette Anderson (Applicant)
State of NSW (NSW Police Force)Representation: Applicant in person
A Shields, Norton Rose Fulbright (Respondent)
File Number(s): 131025
REASONS FOR DECISION
Introduction
Ms Anderson complained about a phone call Constable Ross made to her on 8 November 2012. She says that the call amounts to discrimination on the ground of her sex and presumed disability (mental illness) in breach of the Anti-Discrimination Act 1977 (AD Act). The President of the Anti-Discrimination Board (the Board) declined the complaint. Ms Anderson now applies for permission for the complaint to go ahead: AD Act, s 96. The Tribunal has a discretion to grant or not to grant leave for a complaint to proceed. When determining that question it should be guided by what is fair and just in the circumstances: Jones v Ekermawi [2009] NSWCA 388. I have decided to refuse to grant leave because Ms Anderson's complaint lacks merit and is unlikely to succeed if it were to go ahead.
Background
Ms Anderson and her former partner, Steven Moore, have three children all of whom live with their mother. There is an Apprehended Domestic Violence Order (ADVO) in place preventing Mr Moore from contacting Ms Anderson. Ms Anderson has remarried and lives with her husband, Ian Anderson.
Ms Anderson says that on 5 April 2010 she emailed Steven Moore to ask him to transfer the ownership of a mobile phone he had given her to use during the relationship, into her name. The content of that email is as follows:
Can you please change over the ownership of the (phone number deleted) number to me, all you have to do is call 1555 and ask for change of ownership and give them my details.
This phone is now on a $99 unlimited plan so if you don't change the ownership I will be forced to hand it back to you through a third party and you will be stuck with an additional $100 per month. I would like to have this sorted by the end of the week . . .
She says that Mr Moore did not transfer the phone into her name and after about a month she stopped using the phone. According to Ms Anderson, when Mr Moore finally realised he was liable for the phone bill more than two years later he went to Dee Why police and spoke to Constable Ross.
What happened?
On 8 November 2012 at approximately 8.10 pm Constable Ross rang Ms Anderson. In her complaint to the Anti-Discrimination Board, Ms Anderson says:
Constable Ross stated he was calling about a phone bill of Steven Moore's. . . .Constable Ross stated Steven Moore had attended Dee Why Police to complain about a large phone bill. Constable Ross implied that I was responsible for this phone bill even though he did state it was in Steven Moore's name. I presumed Constable Ross was talking about a second phone owned by Steven Moore at the end of our relationship in 2009. I presumed it was this phone because demands of payment had come to my address for Steven Moore, which I forwarded to Steven Moore's solicitor. I explained to Constable Ross I have my own phone.
Constable Ross began to accuse me of being responsible for the large phone bill and a missing handset, despite the fact I had already told him I had my own phone and was not responsible for any part of that bill. Constable Ross stated words to the effect of, "Why do you think you can run up a big phone bill and leave it to Steven to pay?"
I became extremely distressed. I said to Constable Ross, "Why are you calling me? Isn't this a civil matter?" Constable Ross continued to pursue me, asking, "Where is the handset?" I responded saying, "There is a no contact AVO in place. This is harassment. Steven Moore is using you to harass me." Constable Ross stated he was aware of the no contact AVO and continued to pursue me. He stated, "What handset do you have? What type is it?" I replied, "That is none of your business. This is crazy. Why are you calling me about this?"
When Ms Anderson's husband arrived home, he took the phone from Ms Anderson. Constable Ross asked him whose name the phone bill was in. Ian Anderson answered, "Steven Moore's." Ian Anderson then said, "Then why are you phoning my wife at 8.00 pm?" After further explanation Constable Ross accepted what Mr Anderson was saying and hung up. Ms Anderson says that she broke out in hives because of the anxiety from the phone call.
In its response to the Anti-Discrimination Board, the NSW Police Force set out the findings that were made after investigating Ms Anderson's complaint:
On 7 November 2012 Constable Ross was working at Dee Why police station when he was approached by Stephen Moore. Mr Moore stated that he wanted to make a complaint against his ex-wife, Ms Anderson on the basis that she had obtained a mobile phone using his name and was not paying the bill which amounted to $3000. The allegation constituted an allegation of fraud and Constable Ross had a duty to investigate it in accordance with his obligations as a police officer.
As part of the investigation, Constable Ross was required to contact Ms Anderson to obtain information as to what she knew about the phone. Constable Ross attempted to do so on 7 November and ultimately reached Ms Anderson on 8 November 2012 at approximately 8 pm. The basis for Constable Ross contacting Ms Anderson was to ascertain whether the matter reported to him was a civil matter or a fraud offence requiring NSWPF involvement.
Ms Anderson interpreted the underlined words to mean that Mr Moore had alleged that she had fraudulently obtained a mobile phone using his name and that that amounted to identity theft. Ms Anderson said that Constable Ross should have realised immediately that as a woman she would not have been able to steal her ex partner's identity. In those circumstances Mr Moore's allegation should not have been investigated.
While the underlined words could be interpreted in the way Ms Anderson suggests, Constable Ross never suggested to Ms Anderson on the phone that she had obtained a phone by means of identity theft. He asked her about the large phone bill and whether she knew where the missing handset was. Ms Anderson has incorrectly assumed that an allegation of identity theft was the basis for Constable Ross's call.
We accept the NSW Police Force's version that the reason Constable Ross contacted Ms Anderson was to find out whether the matter reported to him was a civil matter or a fraud offence requiring NSWPF involvement. That finding is supported by both Ms Anderson's evidence of what Constable Ross said to her and the following version of the call by the NSW Police Force:
Constable Ross states that he advised Ms Anderson he was not accusing her of anything but was just trying to establish if she had any knowledge of the complaint. According to Constable Ross, Ms Anderson explained that Mr Moore was causing her difficulties and she did not understand why police were contacting her. Constable Ross states that Ms Anderson became quite agitated and ultimately put her husband on the phone. Constable Ross again explained the situation to Mr Anderson and Constable Ross states that Mr Anderson understood the reason for the phone call and they finished the phone call on good terms. Constable Ross states that he spoke with Ms Anderson for approximately 5 minutes and with Mr Anderson for a few minutes after that.
Upon speaking with Ms Anderson, Constable Ross confirmed that Ms Anderson was unaware that she had been using the mobile phone and/or that she was not using the phone. As such, NSWPF concluded that there was no criminal fraud offence and no further action was required to be taken. The matter was ultimately a civil matter.
. . .
NSWPF has considered the complaint and is of the view that the conduct alleged does not constitute a breach of the AVO and no further action is required.
Legal principles
In order to substantiate her complaint, Ms Anderson would have to prove that the NSW Police Force has discriminated against her on the ground of sex or presumed disability by refusing to provide her with a service or in relation to the terms on which they have provided her with a service: AD Act, s 33 and s 49M. Discrimination on the ground of sex is defined in s 24 and on the ground of disability in s 49B. The first part of the definition refers to 'direct' discrimination. The second part refers to 'indirect' discrimination. Ms Anderson is complaining of 'direct' sex and presumed disability discrimination.
Based on these provisions, the matters which Ms Anderson would have to prove to substantiate a complaint of direct disability or sex discrimination in the provision of services are that:
(1) she has a perceived 'disability' as defined in the AD Act;
(2) police have refused to provide her with a service or provided her with a service on unfavourable terms;
(3) in refusing a service or providing services on unfavourable terms, police treated her less favourably than they treated or would have treated a person who they did not think had her disability or who was male, in the same or similar circumstances; (differential treatment) and
(4) at least one of the reasons for that treatment was Ms Anderson's perceived disability or her sex even if that reason was not the dominant or a substantial reason for the treatment: AD Act , s 4A (causation).
Disability and sex
Ms Anderson says that police have presumed she has a mental illness from material available on the COPS database. The definition of disability includes a disability "that a person is thought to have (whether or not the person in fact has the disability)": s 49A(b). Ms Anderson also complains that she was treated differently than a man would have been treated.
Services
The term "services" is defined by s 4 of the AD Act to include "services provided by a council or public authority." The NSW Police Force is a public authority. It is established under the Police Act 1990. The first step in determining whether a person has been refused a service or provided with a service on unfavourable terms is to identify the relevant service with precision: Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 404-405 per McHugh J, IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17 per Brennan CJ and McHugh J. Ms Anderson says that the service the police were providing to her is vetting complaints or allegations by members of the public to determine whether they require investigation. Ms Anderson is alleging that police refused to provide her with that service or provided that service on unfavourable terms because they did not vet Mr Moore's complaint. Instead, they rang her and asked her about the allegations.
I accept that a tribunal hearing this case may find that police provide a service to members of the public of assessing allegations that are made about them, determining whether those allegations warrant further investigation and, if so, the nature of that investigation. It is arguable that Constable Ross did not refuse to provide that service because he did consider whether or not to investigate the allegations. But this is an uncertain area of the law. A tribunal hearing this case may find that Constable Ross's decision to telephone Ms Anderson falls within the definition of refusing to provide her with a service or providing a service on unfavourable terms. The only outstanding question would then be whether that conduct constitutes sex or disability discrimination as defined in s 24 and/or s 49B.
Differential treatment
The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to Ms Anderson must be compared with the treatment that would have been afforded to a male or to a person police did not perceive as having a disability, in the same or similar circumstances. Ms Anderson alleges that Constable Ross was not aggressive when he spoke to her husband and that in a matter of minutes, he accepted Mr Anderson's account.
In my view it is unlikely that a tribunal hearing this case would accept that the circumstances in which Constable Ross spoke to Mr Anderson were the same, or not materially different, from the circumstances in which he spoke to Ms Anderson. Ms Anderson admits in her complaint to the Board that because of her anxiety, she became extremely distressed during Constable Ross' phone call. A tribunal hearing this case would be likely to accept that Constable Ross spoke in a similar manner to both Mr and Ms Anderson but because of Ms Anderson's anxiety, she reacted very differently.
Causation
Even if Ms Anderson could prove that Constable Ross treated her differently from the way he treated her husband, she would also have to prove that at least one of the reasons for being treated in that way was her sex or that Constable Ross perceived that she had a disability.
Apart from saying that Constable Ross was not as aggressive when speaking to her husband, there is nothing else to support Ms Anderson's allegation that she was treated less favourably on the ground of her sex. If Constable Ross was aggressive when speaking to Ms Anderson, that is more likely to have been because of the way Ms Anderson reacted to his questions than the fact that she is a woman. The sex discrimination allegation is so weak that leave should be refused for it to proceed.
Ms Anderson referred to extracts from the COPS database, which she says she obtained under summons during Family Court proceedings. NSW Police objected to this evidence on the basis that its authenticity could not be guaranteed. I agree that Ms Anderson's transcription of what she says is on the data base is not the best evidence of what is actually on that data base. But the Tribunal is not bound by the rules of evidence and I will accept that material for the purposes of these proceedings: Administrative Decisions Tribunal Act 1997, s 73(2).
There are references to Ms Anderson's disability on the COPS database. Ms Anderson highlighted three such entries during the hearing. It is likely that Constable Ross had read or was familiar with at least some of those entries and knew or perceived that Ms Anderson has a mental illness. Proving that some or all of these entries are inaccurate, distorted or maliciously made, does not help her prove that she has been discriminated against on the ground of her disability or perceived disability. Ms Anderson would also have to prove that a reason Constable Ross rang her was because she has, or he thinks she has, a disability.
Nothing Ms Anderson said suggests that her disability or perceived disability motivated Constable Ross to telephone her. It is highly unlikely that a tribunal hearing this case would conclude that Constable Ross phoned her to harass her, for example. Rather, all the evidence suggests that he was telephoning her to investigate an allegation made by her ex partner. He was satisfied, after speaking to Mr and Ms Anderson that those allegations did not warrant any further investigation. In my view, Ms Anderson's complaint lacks merit.
Order
Leave is refused for the applicant's complaint of sex and disability discrimination against the State of NSW to proceed.
Decision last updated: 29 July 2013
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