Asilevi v State of New South Wales (NSW Police Force)

[2010] NSWADT 212

CITATION:	Asilevi v State of New South Wales (NSW Police Force) [2010] NSWADT 212
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Walter Asilevi RESPONDENT State of New South Wales (NSW Police Force)
FILE NUMBER:	101032
HEARING DATES:	19 August 2010
SUBMISSIONS CLOSED:	19 August 2010
DATE OF DECISION:	25 August 2010
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Summary dismissal – meaning of ‘service’ – whether police officers providing a service to father when removing his child from his care
LEGISLATION CITED:	Anti-Discrimination Act 1977 Children and Young Persons (Care and Protection) Act 1998 Police Act 1990
CASES CITED:	IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745 Commissioner of Police v Mohamed [2009] NSWCA 432
REPRESENTATION:	APPLICANT M Hutchings, barrister RESPONDENT A Campbell, barrister
ORDERS:	The complaint is dismissed.

REASONS FOR DECISION

Introduction

1 On 3 October 2008 officers from the former Department of Community Services, as well as police officers, went to Mr Asilevi's home to remove his child from his care. During the course of removing the child, Mr Asilevi says that a police officer hit him with a baton on his back and on his knee and threw him to the ground. He also alleges that police officers called him a “black cunt” and a “drama queen”. The NSW Police Force (the respondent) denies those allegations but for the purpose of these proceedings we accept that that is what occurred.

2 Following this incident, Mr Asilevi, who is of Ghanaian national origin, lodged a complaint of race discrimination with the President of the Anti-Discrimination Board. The President of the Board referred the complaint to the Tribunal. The respondent has applied for the complaint to be dismissed as lacking in substance because the matters complained about do not constitute the provision of a service to Mr Asilevi.

3 Section 102 of the Anti-Discrimination Act 1977 (AD Act) provides that the Tribunal may, at any stage in the proceedings, dismiss the whole or any part of the complaint on grounds including that the complaint lacks substance. While the discretion to dismiss a complaint is unfettered, it should be exercised with exceptional caution and only if the circumstances clearly warrant such action.

Provisions of services

4 Mr Campbell, representing Mr Asilevi alleged that the respondent had breached s 19(b) of the AD Act which states that:

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:

(b) in the terms on which the other person is provided with those goods or services.

5 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. Section 6 of that Act provides:

6 Mission and functions of NSW Police Force
(1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear.

(2) The NSW Police Force has the following functions:

(a) to provide police services for New South Wales,

(b) to exercise any other function conferred on it by or under this or any other Act,

(c) to do anything necessary for, or incidental to, the exercise of its functions.

(3) In this section:

police services includes:

(a) services by way of prevention and detection of crime, and

(b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and

(c) the provision of essential services in emergencies, and

(d) any other service prescribed by the regulations.

(4) A reference in this section to the functions of the NSW Police Force includes a reference to the functions of members of the NSW Police Force.

(5) ....

6 The child was removed pursuant to s 43(1) of the Children and Young Persons (Care and Protection) Act 1998. That provision states that:

(1) If the Director-General or a police officer is satisfied, on reasonable grounds:
(a) that a child or young person is at immediate risk of serious harm, and
(b) that the making of an apprehended violence order would not be sufficient to protect the child or young person from that risk,
the Director-General or police officer may (without the need for any authority other than that conferred by this subsection) remove the child or young person from the place of risk in accordance with this section.

Meaning of services

7 In IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17, Brennan CJ and McHugh J said:-

In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides.

8 The same observation applies to the circumstances of this case where it is alleged that discrimination has occurred in relation to the terms on which Mr Asilevi was provided with a service.

9 There was no dispute that police officers provide the services set out in s 6(3)(a) and (b) of the Police Act to the community and to individuals in various contexts. The respondent agreed that the police officers were providing the Department of Community Services’ employees and Mr Asilevi’s child, with those services when they were at Mr Asilevi's home. The respondent also agreed that it was at least arguable that the police officers were providing Mr Asilevi with those services after the Department of Community Services’ employees left with the child. I do not need to determine that issue because while there was some interaction between police officers and Mr Asilevi at that time, the specific conduct about which Mr Asilevi complains is that he was racially abused and assaulted before the Department’s employees left with his child. There was no allegation of any further racist abuse or assault after that time.

10 The respondent’s concessions mean that the only issue in dispute is whether, at the time of the alleged incidents, the police officers were providing Mr Asilevi with the services in s 6(3)(a) and (b) of the Police Act.

Reasoning and conclusion

11 In Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745, Mr Russell had been arrested by police officers and taken into custody. He complained that he had been discriminated against on the ground of his Aboriginal race. The Tribunal referred the following question of law to the Supreme Court:

‘. . . whether the conduct of the individual respondent constables in the course of the pursuance and arrest of Mr Russell amounted to the provision of a ‘service’ within the meaning of section 19 of the Anti-Discrimination Act . . .’

12 The answer given by Sully J at [44] was that:

A correct assessment of the conduct of the individual police officers in the course of the pursuit and arrest of the late Mr Russell is in my opinion as follows:

[1] the police officers who took part in the pursuit of Mr Russell were providing to the community at large services of the kind described in section 6(3)(a) and (b) of the Police Service Act

[2] the police who took part in the arrest of the late Mr Russell were also thereby providing to the community at large services of those two kinds

[3] as soon as the late Mr Russell had been formally arrested, and had passed thereupon into police custody, the arresting police, and any police officer who had any part at all in the way in which Mr Russell was subsequently handled; or who witnessed the way in which Mr Russell was handled; became thereupon charged with a public duty to provide to the late Mr Russell police services by way of the protection of his person from injury or death, and the protection of his property from damage ‘ whether arising from criminal acts or any other way’.

13 In Commissioner of Police v Mohamed [2009] NSWCA 432 the Court of Appeal did not have to revisit Sully J’s decision and it is the only relevant authority that was brought to my attention on this point. During the period of time prior to Mr Russell's arrest, police were providing services to the community at large, not to Mr Russell, whereas after his arrest, police officers were providing Mr Russell with a service. The respondent made a similar distinction in relation to this case by submitting that at the time when the police officers were in attendance at Mr Asilevi's home, they were providing the Departmental officers and Mr Asilevi’s child, with the services in s 6(3)(a) and (b) of the Police Act. Just as police officers were not providing Mr Russell with a service when taking part in his pursuit and arrest, so the police officers in this case were not providing Mr Asilevi with a service when protecting the Departmental employees and his child from Mr Asilevi.

14 Mr Campbell’s submission, on behalf of Mr Asilevi, was that the police officers were providing the services in s 6(3)(a) and (b) of the Police Act to Mr Asilevi when interacting with him. The reason we do not accept that submission is that it is inconsistent with the distinction Sully J made in Commissioner of Police, NSW Police Service v Estate of Edward John Russell.

15 It follows that, while a complaint should only be summarily dismissed with extreme caution, the complaint should be dismissed as lacking in substance because at the time of the alleged conduct, the police officers were not providing a service to Mr Asilevi.

The complaint is dismissed.