Commissioner of Police, NSW Police Service v Estate of Edward John Russell

[2001] NSWSC 745

CITATION:	Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors. [2001] NSWSC 745
FILE NUMBER(S):	SC 30026/01
HEARING DATE(S):	19 and 20 July 2001
JUDGMENT DATE:	31 August 2001
PARTIES :	Commissioner of Police, NSW Police Service Estate Edward John Russell, Mr. Ted Russell and Mrs. Helen Russell
JUDGMENT OF:	Sully J at 1

COUNSEL :	W. Haylen QC/J. Pearce - Applicant/Appellant J. Basten QC/N. Poynder - 1st Respondent Dr. Birch SC - 2nd-10th Responents
SOLICITORS:	Court & Legal Services, NSW Police Service - Applicant/Appellant Legal Aid Commission of NSW - Respondents
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 (NSW) Anti-Discrimination Act 1997 (NSW) Police Service Act 1990 (NSW) Industrial Relations Act 1988 (C'th) Law Reform (Vicarious Liability) Act 1983 (NSW) Crown Proceeddings Act 1988 (NSW)
CASES CITED:	Enever v R (1906) 3 CLR 969 Attorney-General for NSW v Perpetual Trustee Company Limited (1954) 92 CLR 113 Konrad & ors. v Victoria and anor [1999] 91 FCR 95 Australian Postal Commission v Dauw (1985) 3 NSWLR 565 Allders International Pty Ltd v Ansett (1985) 5 NSWLR 47 Hall & ors. v V & A Sheiban Pty Ltd and ors (1988) 20 FCR 217 Australian Iron & Steel Pty Ltd v Najdovska and ors (1988) 12 NSWLR 587 Anti-Cancer Cuncil of Victoria and ors; ex parte The State Public Services Federation [1992] 175 CLR 442 at 450, 451
DECISION:	See pages 28 and 29 of judgment

SUPREME COURT OF
NEW SOUTH WALES
COMMON LAW DIVISION

SULLY J

Friday 31 August 2001

30026/01 - COMMISSIONER OF POLICE, NSW POLICE SERVICE v ESTATE EDWARD JOHN RUSSELL & ORS.

JUDGMENT

An Appeal Panel of the Administrative Decisions Tribunal, [“the Tribunal”], has referred to this Court, and for the opinion of this Court, three stated questions of law which arise in connection with certain proceedings at present current before that Appeal Panel. This is a novel procedure deriving from certain provisions of the Administrative Decisions Tribunal Act 1997 (NSW) [“the ADT Act”].

2   The ADT Act establishes the Tribunal as an independent body that is empowered, so far as is now relevant, to make decisions at first instance in relation to matters over which it is given that jurisdiction by, relevantly, any New South Wales statute. The Tribunal, when functioning as a first instance decision maker, operates in divisions. Schedule 1 to the ADT Act lists the divisions into which the Tribunal is to be thus organised. One of those divisions is the Equal Opportunity Division. Schedule 2 to the ADT Act allocates, Division by Division, the statutory enactments pursuant to which that particular Division is to have jurisdiction as a first instance decision taker. Such decision taking functions in relation to the Anti-Discrimination Act 1977 (NSW) are allocated, thus, to the Equal Opportunity Division.

3   Chapter 7 of the ADT Act provides a comprehensive statutory scheme in relation to appeals from decisions of the Tribunal. There are, relevantly, two such methods of appeal that are prescribed by Chapter 7. Part 1 of Chapter 7 provides for what are described in the legislation as “Internal Appeal Rights”. Part 2 of Chapter 7 deals with appeals to this Court. Only the relevant provisions of Part 1 of Chapter 7 are material for the purposes of the present proceedings.

4 Put very simply, a party to proceedings in which a particular Division of the Tribunal has given a decision at first instance, has a right of appeal to an Appeal Panel of the Tribunal. The appeal lies on any question of law; and, but only with the leave of the Appeal Panel, an appeal may be extended to a review of the merits of the particular first instance decision. It is in the context of the performance by an Appeal Panel of the Tribunal of the appellate functions thus conferred upon it by Part 1 of Chapter 7 that section 118 of the ADT Act becomes relevant. That section provides:

“(1) An Appeal Panel determining an appeal under this Part may, of its own motion or at the request of a party, refer a question of law arising in the appeal to the Supreme Court for the opinion of the court.
(2) The Supreme Court has jurisdiction to hear and determine any question of law referred to it under this section.
(3) If a question of law arising in any appeal to an Appeal Panel has been referred to the Supreme Court under this section, the Appeal Panel is not:
(a) to give a decision in the appeal to which the question is relevant while the reference is pending, or
(b) to proceed in a manner, or make a decision, that is inconsistent with the opinion of the Supreme Court on the question.”

5   On four separate days in July and October 2000 the Equal Opportunity Division of the Tribunal heard a complaint lodged under the Anti-Discrimination Act 1997 (NSW) by Mr. Ted Russell and Mrs. Helen Russell on behalf of their late son, Mr. Edward John Russell. The late Mr. Edward John Russell was alive on 6 February 1998, the date of the lodging of the original complaint with the Anti-Discrimination Board. He died subsequently in late 1999 in circumstances which do not require any present extended consideration. His death entailed that his parents became entitled thereupon to continue the prosecution of the original complaint. Mr. and Mrs. Russell are, and their late son was, Aboriginal.

6   The respondents to the complaint were the New South Wales Police Service and eleven individual police officers, all of whom were members of that Service. Two of those police officers had ceased, at the time of the hearing before the Equal Opportunity Division to be members of the New South Wales Police Service. The Equal Opportunity Division took the view that it was “unable to make those two former police officers the subject of any direction or award arising out of its decision, ………………”. Of the remaining nine individual members of the New South Wales Police Service, the Equal Opportunity Division found as to one in particular of them, that the allegations made against him had not been substantiated.

7   The New South Wales Police Service, and the individual police officers, were represented by counsel at the hearing in the Equal Opportunity Division. Both the Police Service, and the individual police officers, did not contest any of the factual material adduced in support of the complaint. The Police Service relied upon some particular submissions of law concerning the operation of the relevant provisions of the Anti-DiscriminAtion Act 1977 and of the Police Service Act 1990 (NSW). The individual police officers took, broadly speaking, the same stance.

8   It is not necessary for present purposes to look in any particular way at the evidence adduced in support of the complaint at the first instance hearing in the Equal Opportunity Division. It is, however, relevant to have at least a general idea of the way in which various issues of fact and of law were formulated for the purposes of the hearing in the Equal Opportunity Division. That is mot conveniently done by quoting directly the following portions of the published judgment of the Equal Opportunity Division:

“ CIRCUMSTANCE OF THE COMPLAINT
9. Mr. and Mrs. Russell allege that at approximately 2.00 am on 11th December 1993, their son, Edward John Russell was apprehended and arrested at the Wisemans Creek Road in Oberon in New South Wales and that ten of the police officers who are Respondents, (who will be called “the police officers”) were in attendance at the scene of the arrest. The eleventh police officer Respondent, Detective Sergeant Carter (hereafter called “Sgt. Carter”) interviewed Edward John Russell at the Bathurst Police Station on the morning of 11th December 1993. Sgt. Carter was not present at the scene of the arrest.
10. It is alleged that the 11 police officers, in carrying out the apprehension and arrest of Edward John Russell (hereinafter called “Edward Russell”) unlawfully discriminated against him on the ground of his race, and on the ground of his race, subjected him to unlawful racial vilification.
11. In relation to Sgt. Carter, it is alleged that in the interview of Edward Russell, Sgt. Carter unlawfully discriminated against Edward Russell on the grounds of his race, by failing to notify the Police Service of a complaint by Edward Russell that he had been assaulted and injured during his arrest at Oberon. The evidence shows that the eleven police officers denied these allegations. Although Respondents Mountford and Callalghan did not participate in the hearing, they had in police internal investigations, denied the allegations.
12. The complaint further alleges that the Police Service, as the employer of the police officers, is vicariously liable for the unlawful acts of the police officers.
FORMULATION OF CLAIMS
13. Consideration needs to be given at an early stage to the application of the Act to the allegations arising out of the complaint as outlined in the introduction. Difficulty has been experienced by the Applicant, and indeed by the Board, in the determination of the precise application of the Act to the circumstances as alleged in the complaint. As a result of the amendments to the claims made by the Applicant at the beginning of the enquiry, the Tribunal sees the need to precisely formulate the claims in accordance with those amendments, in order to ensure that in examining the variety of issues that have been presented to it, those issues can be addressed within the proper framework of the claims.
14. The Tribunal has proceeded to examine the following claims:
(i) That the conduct and language of the police officers towards Edward Russell during his apprehension and arrest on 11th December 1993, contravened Section 7(1)(a) of the Act by discriminating against him, on the ground of his race.
(ii) That Sgt. Carter contravened Section 7(1)(a) of the Act, on 11th December 1993, at the Bathurst Police Station, by failing to report to the Police Service a complaint made by Edward Russell that he had been assaulted and injured during his apprehension and arrest, and that the failure of Sgt. Carter discriminated against Edward Russell on the ground of his race.
(iii) That the circumstances of the conduct and language of the police officers at Oberon on 11th December 1993 during the apprehension and arrest of Edward Russell, constituted unlawful racial vilification, under Section 20(C) of the Act, as it incited hatred towards, serious contempt for, and severe ridicule of Edward Russell, on the grounds of his race.
(iv) The Police Service, as the employer of the police officers and of Sgt. Carter and of Respondents Mountford and Callaghan, on 11th December 1993, under Section 53 of the Act, was deemed to have done the acts done by the Respondents on 11th December 1993 in relation to Edward John Russell, and those acts constitute contraventions of the Act.
(v) The contraventions of the Act deemed to have been done by the New South Wales Police Service, were unlawful:-
(a) under Section 19(b) of the Act, those acts related to the terms on which the Police Service provided services to Edward Russell;
(b) by virtue of the breach of Section 20(C) of the Act;
(vi) The conduct and language of the police officers towards Edward Russell during his apprehension and arrest at Oberon on 11 December 1993, was unlawful, by virtue of Section 52 of the Act, as the conduct and language caused, induced, aided and permitted the Police Service to act unlawfully in breach of the Act.
15. The claims, shortly stated, are that the police officers, Sgt. Carter and the Police Service unlawfully discriminated against Edward Russell and that the police officers and the Police Service unlawfully, racially vilified Edward Russell.”

9   What is thus stated in the judgment of the Equal Opportunity Division needs, for present purposes, to be supplemented by two observations: first, that Sgt. Carter is the individual police officer the allegations against whom were found to have been unsubstantiated; and secondly, that the Equal Opportunity Division came to the conclusion that the Police Service and the individual police officers, Sgt. Carter only excepted, had, both in fact and in law, “unlawfully discriminated against Edward Russell and …………………..unlawfully, racially vilified Edward Russell”.

10 The Appeal Panel of the Tribunal which has referred to this Court the questions of law now to be considered, is hearing an appeal against the decision adverse to the Police Service and to the eight particular individual members of that Service. That is the context in which the section 118 reference has been made.

11   The particular questions thus referred are the following:

“(i) Whether the provisions of the Anti-Discrimination Act 1977 extend to the Commissioner of Police or the New South Wales Police Service such as to make the Commissioner of Police or the New South Wales Police Service liable as “employer” or “principal” of constables acting in that capacity who are otherwise found in breach of the provisions of the Anti-Discrimination Act 1977;
(ii) Whether the conduct of the individual respondent constables in the course of their pursuance and arrest of Mr. Russell amounted to the provision of a “service” within the meaning of section 19 of the Anti-Discrimination Act, and if so whether such a “service” within the section was provided by the appellants;
(iii) Whether the Tribunal has power pursuant to s 113(1)(b) of the Anti-Discrimination Act 1977 to make the order in paragraph 5(iii) of the orders as set out in the cover of the decision under appeal, that the “NSW Police Service caused a record to be made on the file of each of the Police Officers” being the Appellants “being a record called ‘Employment Management Record’ stating certain conclusions of the Tribunal.”

Question (i)

12 Section 53 of the Anti-Discrimination Act, read in conjunction with section 4B of that Act, provides relevantly:

“An act done by a person as the employee of the Commissioner of Police which if done by the Commissioner of Police would be a contravention of this Act is taken to have been done by the Commissioner of Police also unless the Commissioner of Police did not, either before or after the doing of the act, authorise the employee, either expressly or by implication, to do the act.”

13 Section 4 of the Act, the general definitions section, includes the following definition:

“ Employment includes work under a contract for services.”

14   These statutory provisions need to be considered, for present purposes, in conjunction with the relevant provisions of the Police Service Act. The Police Service Act is, according to its long title, “an Act to establish the Police Service of New South Wales; to provide for the management of the Police Service and for the employment of its members; and for other purposes”.

15 The Police Service of New South Wales as established by the Act has functions that are defined by sections 6 and 14 of the Act.

16 Section 6(2) of the Act provides:

“(2) The Police Service has the following functions:
(a) To provide police services for New South Wales,
(b) To exercise any other function conferred by it by or under this or any other Act,
(c) To do anything necessary for, or incidental to, the exercise of its functions.”

17 Section 14 provides:

“In addition to any other functions, a police officer has the functions conferred or imposed on a constable by or under any law (including the common law of the State).”

18   The employment status at common law of a police officer is summarised as follows in Halsbury’s Laws of Australia Vol. 20 para [320-75].:

“A police officer holds office at the Crown’s pleasure with the result that action may not be brought against the Crown at common law for wrongful dismissal. The relationship between the Crown and a member of a police force is not the ordinary master and servant type of contractual relationship because a police officer holds a public office and is a servant of the Crown, and the Commissioner of Police (the ‘Commissioner’) has no power to interfere in such a contract. A police officer, although responsible for his or her own wrongs in the intended exercise of duty, is not in such a position that responsibility for his or her acts extends to the appointing body irrespective of whether the acts are done at common law or under statute, as a police officer is in no way an agent of the appointing body. The authority of the police officer is original, not delegated, and is exercised in the officer’s own discretion by virtue of his or her office and on his or her own responsibility.”

19   The foregoing propositions are based in large part upon an early decision of the High Court of Australia: Enever v R (1906) 3 CLR 969. This decision stands unreversed, and was specifically approved in the advising of the Privy Council in Attorney-General for New South Wales v Perpetual Trustee Company (Limited) (1954) 92 CLR 113. Three points of particular present significance are made by the Privy Council.

, that the mere enactment of statutory codifications concerning the establishment and management of police services does not of itself displace the ordinary principles of the common law. The Privy Council observes in that regard:

“Today as in the past he is in common parlance described in terms which aptly define his legal position as ‘a police officer’, ‘an officer of justice’, ‘an officer of the peace’. If ever he is called a servant, it is in the same sense in which any holder of a public office may be called a servant of the Crown or of the State.”

Secondly , the traditional requirement carried forward into modern statutory provisions respecting police services, that a police constable, before entering formally upon the exercise of any of his official functions, must take an oath or make an affirmation of office as a police officer: “ ……………is not the usual concomitant of the master and servant relationship”; and the obligation of service as normally embodied in such an oath or affirmation of office “……………..is of negligible significance. It is the traditional word in the context of subject and Sovereign and does not by itself import the relation of master and servant in the ordinary sense of those words” .

Thirdly , the common law continues to recognise the distinction explored in Blackstone’s Commentaries:

“………………. between public officers and domestic relations. There appears to their Lordships to be ample justification for saying as was said in the High Court that the service of a constable is ‘different in nature’ or ‘on a different plane’ from the domestic relation, that it is ‘different both in its nature and its incidents’, and that, even if some of the incidents which the law implies in the ordinary contract of service are present also in the relation of the constable to the Crown, there is a fundamental difference which makes it necessary to approach with caution the question whether a form of action available in the one case is available in the other also”.

21   See also, and generally, the discussion in Avery: Police – Force or Service? at 64, 65, under the heading : The Traditional Independence of Police.

22   The Common Law principles which have been thus far discussed are well established in the Law of New South Wales. It is, of course, within the constitutional competence of the Parliament of New South Wales to legislate so as to abrogate, either in whole or in part, such common law principles. It is, in that connection, a sound canon of statutory interpretation that, if Parliament wishes to make such a change to established common law principles, nothing is easier than for Parliament to say so in clear and simple statutory terms. It is an accepted corollary of that basic canon of construction that, if Parliament does not legislate with that degree of clarity, then it ought not lightly to be inferred that Parliament intended, as it were by a side wind, to overturn, whether in whole or in part, antecedent common law principles of long recognised standing.

23   The foregoing propositions raise for present consideration the question whether the Police Service Act upon its proper construction, has changed, and if so to what particular extent, the antecedent principles of the common law respecting the employment status of police officers.

24 In that connection, the following matters, all of which can be extracted from the Police Service Act, are in my opinion relevant:

[1] The Act does not in terms simply abrogate the common law respecting the legal standing of serving police officers. As previously herein noted, section 14 of the Act is in terms to the contrary.

[2] The Act establishes a clear hierarchy within the Police Service established by the Act. At the apex of that hierarchy is the Commissioner of Police. Immediately below the Commissioner are members of what is called the Police Service Senior Executive Service. This is a grouping of particular positions, as defined in Schedule 2 to the Act, within the Police Service. Some of these positions are, broadly speaking, operational positions: for example, the two Deputy Commissioners and the eleven Regional Commanders. Others of the scheduled positions are, broadly speaking, management and administrative positions: for example, the general managers of, respectively, Court and Legal Services, and Audit and Evaluation Services. The third rung of the hierarchical ladder is occupied by what are described in the Act as “non-executive officers of the Police Service” . These officers are, broadly speaking, the people who would be regarded in ordinary community parlance as ‘serving police officers’. They are ranked, in accordance with section 12(1) of the Act, as Constables, Sergeants, Inspectors or Superintendents, with the exception of a small number of officers who hold the rank of Superintendent but are included in the scheduled membership of the Police Service Senior Executive Service. The fourth and final rung in the hierarchical ladder is occupied by persons described in the Act as “Temporary employees of the Police Service” .

[3] Part 5 of the Act deals in detail with the Police Service Senior Executive Service. Division 3 of Part 5 is headed: “Appointment of executive officers” . Division 4 of Part 5 is headed: “Employment of executive officers” . The scheme thus established by Divisions 3 and 4 operates, broadly speaking, in the following way:

(a) A vacant executive position is filled by a formal appointment. The appointment is made, depending upon the nature of the vacancy to be filled, either by the Governor upon the recommendation of the Commissioner; or by the Commissioner himself.

(b) The appointment is formalised by an instrument of appointment. That instrument of appointment is required to specify the period during which the appointee is to hold office, being a period not exceeding five years: see section 40.

(c) In addition to the formal instrument of appointment, there is required to be put in place “a contract of employment between the officer and the Commissioner” . Section 41(3) provides in terms that an Executive Officer “………is not appointed by, nor is an Executive Officer’s term of office fixed by, the contract of employment” . Section 41(6) provides that the Commissioner “………acts for and on behalf of the Crown in any contract of employment between the officer and the Commissioner” . Section 42 defines the matters which must be regulated by such a contract of employment. They include: the duties of the particular position and any required performance criteria; the terms of the monetary remuneration and other employment benefits which are to attach to the particular position; and any election by the particular appointee to retain a right of return to the public sector in manner provided by section 52 of the Act.

[4] Part 6 of the Act deals with non-executive officers of the Police Service. It establishes three broad categories of such officers: first , commissioned police officers: that is to say, Superintendents who are not members of the Police Service Senior Executive Service, and Inspectors; secondly , non-commissioned officers: that is to say, Constables and Sergeants of Police: and thirdly , non-executive administrative officers. It is sufficient to note for present purposes that Part 6 speaks consistently, and as to all such categories of non-executive police officers, in terms of appointment. There is no provision in Part 6 to mirror the provisions of Part 5 defining terms of engagement so as to require their formalisation by both an instrument of appointment and a concomitant contract of employment.

[5] Part 7 of the Act deals with temporary employees of the Police Service. There is no reference in Part 7 to any requirement of an instrument of appointment. The language of Part 7 is that of ordinary, albeit temporary, employment of the particular employee by the Commissioner.

25   I have come to the conclusion that the proper construction of the relevant provisions of the Police Service Act does not disclose a legislative intention to abrogate, either in whole or in part, the long recognised principles of the common law respecting the legal standing of serving police officers. It seems to me that Part 5 of the Act is striking in the care with which it distinguishes between an instrument of appointment and a concomitant contract of employment. Whatever else can properly be said about those provisions, they indicate clearly, in my opinion, that Parliament had in mind a distinction of real substance between, on the one hand the notion of appointment, and on the other hand the notion of contractual employment. It seems to me that the failure to carry forward into , in particular Part 6 of the Act, that legislative dichotomy, cannot reasonably be supposed to be explained by nothing more than a mere legislative oversight. The better view is, in my opinion, that it was the deliberate legislative intent that, so far as ordinary serving operational police officers are concerned, they should not be employees in the colloquial master and servant sense; but that they should remain, as they have always been in the eye of the common law, appointees to a public office, the recognised nature and incidents of which are to retain their well-recognised and long established common law character.

26   Learned Senior Counsel for the late Mr. Russell’s estate submitted that the decision of the Full Court of the Federal Court of Australia: Konrad and ors. v Victoria and anor. [1999] 91 FCR 95, “……… is persuasive authority for the proposition that a police officer should be treated as being in the employment of the Commissioner for the purposes of the (Anti-Discrimination Act)”.

27   It seems to me that the short answer to that submission is that the Federal Court was considering the operation of certain provisions of the Industrial Relations Act 1988(Cth). Because the relevant legislation was Commonwealth legislation, it was possible for the Federal Court to approach the construction of that legislation upon the basis that its purpose was to give effect to a particular international Convention; with the consequence that the legislation ought not to be construed more narrowly than the Convention to which the legislation was intended to give effect. The situation in the present case seems to me to be quite different in substance. The Anti-Discrimination Act is State legislation. The long title of the Act is, simply: “An Act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons”. The Act does not seem to me to depend in any real way at all upon any identified international Convention. The Act proceeds, rather, as domestic legislation of the State of New South Wales, the constitutional validity of which does not depend upon the treaty-making power of the Commonwealth Government, but upon the independent constitutional power of the New South Wales Parliament to legislate for the peace, order and good government of the State.

28   Learned Senior Counsel for the late Mr. Russell’s estate put, further, a submission based upon certain of the provisions of the Law Reform (Vicarious Liability) Act 1983 (NSW). The relevant provisions are as follows:

“8. (1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function:
(a) is in the course of his service with the Crown or is an incident of his service (whether or not it was a term of his appointment to the service of the Crown that he perform the function); or
(b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown
………………………………………………………………………….”

29 The proper construction of the foregoing provisions of section 8(1) is conditioned by various of the provisions of sections 5 and 6 of the Act. Section 5 contains the following definitions:

“ independent function , in relation to a servant or a person in the service of the Crown, means a function conferred or imposed upon the servant or person, whether or not as the holder of an office, by the common law or statute independently of the will of his master or the Crown, as the case may require;
office includes the office of special constable within the meaning of Part 4 of the Police Offences Act 1901;
person in the service of the Crown does not include a servant of the Crown.”

30 Section 6 provides:

“For the purposes of this Act, a police officer shall be deemed to be a person in the service of the Crown and not a servant of the Crown.”

31   The Law Reform (Vicarious Liability) Act does not itself define the expression “a tort”. I infer, therefore, that the legislative intent was that such expression should bear its normal legal meaning. That normal legal meaning is defined in a convenient form in the following passage from Halsbury: Laws of England, 4th ed: vol 45, paragraph 1201:

“Rights of action in tort. Those civil rights of actions which are available for the recovery of unliquidated damages by persons who have sustained injury or loss from acts, statements or omissions of others in breach of duty or contravention of right imposed or conferred by law rather than by agreement are rights of action in tort. The proposition thus formulated shows that the nature of tort can, perhaps, best be approached by way of distinctions. The principal distinctions to be drawn are the distinction between an action in tort and an action in contract, and the distinction between a civil wrong and a crime, although the same circumstances may give rise to actions for breach of contract or in tort and although many tortious acts are also crimes.”

32   In Australian Postal Commission v Dauw (1985) 3 NSWLR 565, McHugh JA, (as he then was), expressed at 604 the view that an action under the Anti-Discrimination Act is an action in tort. His Honour referred specifically, and in support of that proposition, to the definition quoted above from Halsbury. The opinion thus expressed by McHugh JA was, as I respectfully think, obiter dicta; but his Honour’s view is, to say the respectful least, persuasive authority.

33   It is, moreover, the only expression of curial opinion which I have been able to find and which is precisely on point for present purposes. Counsel in the present proceedings referred to a number of decisions which were said to be relevant to the present problem: Allders International Pty Ltd v Ansett (1985) 5 NSWLR 47; Hall and ors. v A & A Sheiban Pty Ltd and ors (1988) 20 FCR 217; and Australian Iron & Steel Pty Ltd v Najdovska and ors. (1988) 12 NSWLR 587. None of these decisions seems to me to be helpful for present purposes. All of them deal with the particular question of the quantum of damages that may be awarded to a person who succeeds in establishing a contravention of the Anti-Discrimination Act. To say, as these decisions do say in one way or another, that the proper assessment of damages payable in terms of the Anti-Discrimination Act is to be made by analogy with the assessment of damages in a conventional action of tort, does not seem to me to be the same thing as saying that a complaint brought pursuant to the Anti-Discrimination Act is in its nature an action of tort.

34 If it is, therefore, necessary to return to basic principles in order to achieve a correct construction of, in particular, section 8(1) of the Law Reform (Vicarious Liability) Act, then it seems to me that proceedings instituted by way of a complaint made pursuant to the Anti-Discrimination Act are proceedings, the nature of which exhibits the characteristics of a tort as defined, in particular, by the passage earlier cited from Halsbury.

35   It seems to me, therefore, that a police officer who commits a contravention of the Anti-Discrimination Act commits thereby an actionable civil wrong in the nature of a tort. If that contravention is committed, as was plainly the case with the individual police officers whose conduct is central to the present proceedings, in the purported performance of a function in the course of service with the Crown, then in my opinion the Crown is liable vicariously as provided by section 8(1) of the 1983 Act.

36 A conclusion that the Crown is liable for the conduct of police officers in carrying out their functions in a manner which contravenes section 19 of the Anti-Discrimination Act entails a consideration of the procedural regime established by the Crown Proceedings Act 1988 (NSW). The relevant provisions of that Act are those contained in section 5(1), namely:

“Any person, having or deeming himself, herself or itself to have any just claim or demand whatever (not being a claim or demand against a statutory corporation representing the Crown) may bring civil proceedings against the Crown under the title ‘State of New South Wales’ in any competent court.”

37   It seems to me to follow from these provisions that the State of New South Wales is liable to be proceeded against by a complainant who alleges that serving police officers have carried out their functions in a manner contravening the Anti-Discrimination Act.

38   For the whole of the foregoing reasons, I am of the opinion that the referred question (i) should be answered: No; but the State of New South Wales is so liable.

Question (ii)

39 Section 19 of the Anti-Discrimination Act provides:

“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.”

are not defined in the Act; but “services” are defined in section 4(1) of the Act. They are there defined as including six nominated categories of services. The only category relevant for present purposes is category (e), the terms of which are: “services provided by a ……………..public authority”.

41   Guidance as to the distinguishing features characteristic of a public authority is to be found in the decision of the High Court of Australia: Re Anti-Cancer Council of Victoria and ors; ex parte The State Public Services Federation [1992] 175 CLR 442 at 450, 451 per Mason CJ, Brennan and Gaudron JJ. The relevant passages in the joint judgment are:

“The question whether a body is a public authority is one of fact and degree which often requires a balancing of the various features of the body concerned. In that process, it may be decisive that private individuals have a financial interest in its profits or assets, or that its public functions are merely incidental to its private pursuits. Or it may be important that its powers derive from a private or non-statutory source, although that consideration is not necessarily decisive.
In Renmark Hotel Inc. v Federal Commissioner of Taxation, Rich J, at first instance, said that for a body to be a public authority ‘it should carry on some undertaking of a public nature for the benefit of the community or of some section or geographical division of the community and that it should have some governmental authority to do so’. His Honour’s decision was upheld on appeal, emphasis being given to the need for ‘public functions’, ‘duties to be exercised for public objects’ or ’power………..to act on behalf of the public or the State’. However, this last feature would seem to indicate a body of the kind that is usually identified as a State or public instrumentality.” [references to authorities have been omitted]

42 Against that background, it is necessary to consider the relevant portions of sections 6 and 7 of the Police Service Act. They are:

“ 6. Mission and functions of Police Service
(1) The mission of the Police Service is to have the police and the community working together to establish a safer environment by reducing violence, crime and fear.
(2) The Police Service 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 Police Service includes a reference to the functions of members of the Police Service.
(5) ………………….. (not applicable; not reproduced)”
“7. Statement of values of members of Police Service
Each member of the Police Service is to act in a manner which:
(a) places integrity above all,
(b) upholds the rule of law,
(c) preserves the rights and freedoms of individuals,
(d) seeks to improve the quality of life by community involvement in policing,
(e) strives for citizen and police personal satisfaction,
(f) capitalises on the wealth of human resources,
(g) makes efficient and economical use of public resources, and
(h) ensures that authority is exercised responsibly.”

43 It seems to me that the Police Service of New South Wales, as established by section 4 of the Police Service Act, has by reason of sections 6 and 7 of that Act, duties, functions and characteristics sufficient to establish it as a public authority in the sense discussed by the High Court. The Police Service of New South Wales cannot operate, relevantly, except by and through police officers who are serving members of the Service. It seems to me to follow that services provided by such serving police officers are services provided by a public authority in the sense contemplated by the Anti-Discrimination Act.

44   A correct assessment of the conduct of the individual police officers in the course of their 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 in any other way” .

[4] All of the police officers mentioned in [3] above wholly failed, on the facts as found by the Equal Opportunity Division, to provide the services which they were bound to provide to Mr. Russell pursuant to section 6(3)(b).

[5] To say that what the individual police officers did, or suffered to be done, to the late Mr. Russell amounted to the provision by them to him of police services, but on a basis discriminatory in the sense contemplated by section 19(b), seems to me to be a wholly artificial perception, given the facts found by the Equal Opportunity Division. The police officers involved did not, in my opinion, provide imperfectly to the late Mr. Russell the services which they were duty bound to provide to him. They did not provide those services at all.

45   For the whole of the foregoing reasons, I would answer the referred question (ii): No; but the subsequent failure of those police officers to afford Mr. Russell the protection to which he was entitled in terms of section 6(3)(b) of the Police Service Act was conduct of the kind contemplated by section 19(a) of the Anti-Discrimination Act.

Question iii

46 Section 113(1)(b) of the Anti-Discrimination Act provides as follows:

“113(1) After holding an inquiry, the Tribunal may:
………………………………………………..
(a) dismiss the complaint the subject of that inquiry, or
(b) find the complaint substantiated and do any one or more of the following:
(i) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,
(ii) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,
(iii) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant.
(iiia) in respect of a vilification complaint, order the respondent to publish an apology in respect of the matter the subject of the complaint or order the respondent to publish a retraction in respect of the matter (or order both) and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both)
(iiib) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,
(iv) make an order declaring void in whole or in part and either ab initio or from such other time as is specified in the order any contract or agreement made in contravention of this Act or the regulations, or
(v) decline to take any further action in the matter.”

47   The order made by the Tribunal in its paragraph 5(iii) plainly does not fall within the paragraphs (i), (ii), (iiia), (iv) or (v).

48   It was submitted that the order might be justified, at least in part, upon the basis that it satisfied paragraph (iiib). I do not think that the terms of the questioned order, upon a normal grammatical reading of them, can be said to have as their objective the development and implementation of such a programme or policy as is contemplated by paragraph (iiib).

49   In the result, the questioned order, if it is to be supportable at all pursuant to section 113, must be brought within the terms of paragraph (iii). That is to say, the questioned order must be one directing the performance of “………….any reasonable act or conduct to redress any loss or damage suffered by the complainant”.

50   In my opinion there are two impediments to the upholding of the questioned order in paragraph 5(iii).

the making of the required entries in the relevant Employment Management Records does not seem to me to have anything to do with the redress of loss or damage suffered by the late Mr. Russell. The making of such entries upon the relevant Employment Management Records might be effective to deter the individual police officers from future repetitions of their unlawful behaviour towards the late Mr. Russell; but that does not seem to me to be at all the same thing as redressing loss or damage suffered by the late Mr. Russell himself.

, the entries directed to be made on the relevant Employment Management Records are essentially instruments of discipline and punishment; and it seems to me that there is no statutory warrant for the proposition that the powers of the Equal Opportunity Division of the Tribunal, extensive as they no doubt are, extend to matters of the discipline and punishment of individual police officers in ways more appropriate to the scheme of disciplinary control that is enacted, elaborately, by Parts 8A, 9 and 9A of the Police Service Act.

53   In my opinion, the referred Question (iii) should be answered: No.

Ancillary Matters

55   This Notice of Motion sought the addition of the State of New South Wales either in substitution for the Commissioner of Police and the New South Wales Police Service or in addition to those named parties.

56   I do not see that there is any utility in making the orders thus sought. There is no utility so far as concerns proceedings in this Court; for the reason that no point was taken as to the standing of the parties who in fact appeared before this Court to argue the various aspects of the referred questions with which I have earlier herein dealt.

57 There is the further consideration that the present remit of this Court is, as earlier herein explained, both defined and confined by section 118 of the Administrative Decisions Tribunal Act. The jurisdiction of the Court is to hear and determine the questions of law referred to it by the relevant Appeal Panel. If there is any need to reconstitute the proceedings before the Appeal Panel, then some proper application should be made to the Appeal Panel.

58   I propose, therefore, formally to dismiss the notice of motion. In the circumstances I will make no particular order respecting the costs of the notice of motion.

60   I approach this matter on the basis that, so far as is practicable, costs should follow the event. I propose, therefore, to make the following costs orders:

(i) that the Commissioner of Police and the New South Wales Police Service pay the costs of Mr. and Mrs. Russell in connection with the argument of the referred questions (i) and (ii).

(ii) that Mr. and Mrs. Russell pay the costs of the individual police officers in connection with the referred question (iii).

(iii) that there be no order otherwise as to the costs of the individual police officers in connection with the hearing before this Court.

Summary and Orders

[1] The referred questions are answered as follows:

Question (i) – No; but the State of New South Wales is so liable.

Question (ii) – No; but the subsequent failure of those police officers to afford Mr. Russell the protection to which he was entitled in terms of section 6(3)(b) of the Police Service Act was conduct of the kind contemplated by section 19(a) of the Anti-Discrimination Act.

Question (iii) – No.

Order as to Costs

[2] (i) that the Commissioner of Police and the New South Wales Police Service pay the costs of Mrs. and Mrs. Russell in connection with t he argument of the referred questions (i) and (ii);

(ii) that Mr. and Mrs. Russell pay the costs of the named individual police officers in connection with the referred question (iii);

(iii) that there be no order otherwise as to the costs of the named individual police officers in connection with the hearing before this Court.

[3] The Notice of Motion dated 17 July 2001 of Mr. and Mrs. Russell is dismissed. No order as to costs.

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Last Modified: 09/10/2001