Commissioner of Police v Estate of Russell

[2002] NSWCA 272

Reported Decision: (2002) 55 NSWLR 232

New South Wales

Court of Appeal

CITATION:	COMMISSIONER OF POLICE v THE ESTATE OF EDWARD JOHN RUSSELL & ORS [2002] NSWCA 272
FILE NUMBER(S):	CA 41047/01
HEARING DATE(S):	3 July 2002
JUDGMENT DATE:	20 August 2002
PARTIES :	Commissioner of Police/New South Wales Police Service/The State of New South Wales (Appellant/Cross Respondent) The Estate of Edward John Russell (First Respondent/Cross Appellant) Ross Mewburn (Second Respondent/Second Cross Respondent) Lindsay Hook (Third Respondent/Third Cross Respondent) Darrell J. Bellamy (Fourth Respondent/Fourth Cross Respondent) Brian J. Healey (Fifth Respondent/Fifth Cross Respondent) Ian M. Gow (Sixth Respondent/Sixth Cross Respondent) Michael Griffiths (Seventh Respondent/Seventh Cross Respondent) Brian Keogh (Eighth Respondent/Eighth Cross Respondent) Peter J. Morris (Ninth Respondent/Ninth Cross Respondent)
JUDGMENT OF:	Spigelman CJ at 1; Stein JA at 97; Davies AJA at 101

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	30026/01
LOWER COURT JUDICIAL OFFICER :	Sully J

COUNSEL:

(Appellant/Cross Respondent)
R Kenzie QC / J Pearce

(First Respondent/Cross Appellant)
J Basten QC / S A Beckett

(Second to Ninth Respondents/Cross Respondents)
Ms C Ronalds

SOLICITORS:

(Appellant/Cross Respondent)
Michael N Holmes (Solicitor) for NSW Police Service

(First Respondent/Cross Appellant)
Legal Aid Commission

(Second to Ninth Respondents/Cross Respondents)
Walter Madden Jenkins

CATCHWORDS:

UNLAWFUL DISCRIMINATION - police officers - statutory liability - whether Commissioner of Police or Police Service of New South Wales is liable for discriminatory acts of police officers - whether police officer is an employee of the Commissioner of Police - employee - Anti-Discrimination Act 1977, s 53 - JURISDICTION - whether determination of vicarious liability within jurisdiction of the Administrative Decisions Tribunal - TORT - whether unlawful discrimination pursuant to Anti-Discrimination Act 1977 is a tort - definition of tort.

LEGISLATION CITED:

Accident Compensation Act 1985 (Vic)
Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Anti-Discrimination Amendment Act 1997
Crown Proceedings Act 1988
Employees Liability Act 1991
Industrial Relations Act 1988 (Cth)
Interpretation Act 1987
Law Reform (Vicarious Liability) Act 1983
Police Offences Act 1901
Police Service Act 1990
Suitors' Fund Act 1951
Supreme Court Act 1986 (Vic)
Trade Practices Act 1974 (Cth)
Workers Compensation Act 1958 (Vic)

CASES CITED:

Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47
Attorney General for New South Wales v Perpetual Trustee Co Limited (1954) 92 CLR 113
Australian Postal Commission v Dao (1985) 3 NSWLR 565
Director-General of Education v Breen (1982) 2 IR 93
Enever v the King (1906) 3 CLR 969
Esso Australia v Victorian Workcover Authority (2000) 1 VR 246
Hampic Pty Ltd v Adams [1999] NSWCA 455
IW v City of Perth (1997) 191 CLR 1
Konrad v Victoria (1999) 91 FCR 95
Philip Morris Limited v Ainley & Incorporated Nominal Defendant [1975] VR 345
Police Service of New South Wales v Honeysett [2001] NSWCA 452

DECISION:

The question of law is answered: 'Yes, with respect to the Commissioner of Police'.

- 26 -IN THE SUPREME COURT

CA 41047/01

SPIGELMAN CJ
STEIN JA
DAVIES AJA

Tuesday 20 August 2002

COMMISSIONER OF POLICE v THE ESTATE OF EDWARD JOHN RUSSELL & Ors

FACTS

Edward John Russell, now deceased, was the victim of unlawful racial discrimination and racial vilification perpetrated by a group of New South Wales police officers. A question of law was referred to the Supreme Court by the Appeal Panel of the Administrative Decisions Tribunal.

HELD

Per Spigelman CJ, Davies AJA agreeing.

A The Administrative Decisions Tribunal has no jurisdiction to determine issues of vicarious liability under the Law Reform (Vicarious Liability) Act, 1983.

Proceedings for unlawful discrimination pursuant to the Anti-Discrimination Act 1977 are probably not a tort for purposes of the Law Reform (Vicarious Liability) Act . Observations in Australian Postal Commission v Dao (1985) 3 NSWLR 565 and Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47, doubted.

Per Spigelman CJ, Stein JA and Davies AJA agreeing.

B A police officer is an “employee” of the Commissioner of Police for purposes of s53 of the Anti-Discrimination Act. Police Service of New South Wales v Honeysett (2001) NSWCA 452; Konrad v Victoria (1991) 95 FCR 95, referred to.

CA 41047/01

SPIGELMAN CJ
STEIN JA
DAVIES AJA

Tuesday 20 August 2002

COMMISSIONER OF POLICE v THE ESTATE OF EDWARD JOHN RUSSELL & Ors

Judgment

1 SPIGELMAN CJ: This is an appeal from a judgment of Sully J. His Honour answered certain questions of law referred to the Supreme Court by an Appeal Panel of the Administrative Decisions Tribunal (“the Tribunal”) pursuant to s118 of the Administrative Decisions Tribunal Act 1997. Two questions of law answered by his Honour are no longer in issue. The question of law which remains in issue is as follows:

“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.”

2 Mr Ted Russell and Mrs Helen Russell are the parents of Edward John Russell, now deceased. Their son was alive at the time a complaint was lodged under the Anti-Discrimination Act 1977. Upon his death his parents were entitled to continue the prosecution of the original complaint. The complaint was heard by the Equal Opportunity Division of the Tribunal in July and October 2000. The member conducting the inquiry upheld the complaint of unlawful discrimination and made certain orders. The Respondents appealed to an Appeal Panel of the Tribunal. The Panel referred the questions of law to this Court.

3 Sully J answered the question I have set out above:

“No; but the State of New South Wales is so liable.”

4 The Appellants contest his Honour’s answer. By way of cross-appeal the estate of Mr Edward Russell contests his Honour’s rejection of the proposition that the Commissioner of Police was liable.

Background Circumstances

5 The Equal Opportunity Division of the Tribunal held that six police constables, one sergeant and a detective, who are Respondents in this appeal, unlawfully discriminated against and unlawfully racially vilified Mr Edward Russell on the basis of his Aboriginality. The background facts found to exist by the Tribunal related to an incident in December 1993. The deceased was driving a stolen utility vehicle and was being pursued by a number of police vehicles. There was a collision between a police vehicle and the utility. Ultimately the deceased was arrested and taken into custody. In the process the passenger window of the utility which the deceased had been driving was broken. The deceased was hit on the arm with a police baton. He was dragged out of the utility. He was forced to the ground by four police officers. The deceased’s hands were handcuffed behind his back. He was carried or dragged up a steep embankment onto the road by his arms. Police officers deliberately trod on the deceased while he was on the ground. He was punched several times by at least one of the police officers. A number of the police officers bashed the deceased’s head against the back of the police vehicle. The deceased was subjected to abusive, foul and racist language.

6 The Tribunal found that there was excessive force and abusive language, and that that conduct was causally connected with the deceased’s Aboriginality. It was held to constitute unlawful discrimination on the grounds of race contrary to s7(1)(a) of the Anti-Discrimination Act. The Tribunal further found that the conduct constituted racial vilification contrary to s20C of that Act because it incited hatred towards, serious contempt for and severe ridicule of the deceased, on the grounds of his Aboriginality.

7 The Tribunal ordered that the New South Wales Police Service and the eight police officers pay, by way of compensation for the unlawful act, an amount of $30,000 to the estate of the deceased. The liability was to be joint and several. It was further ordered that an apology to the deceased and his parents be published in the local newspaper and that the Police Service and each police officer write a letter of apology to the parents of the deceased. The final order was that the Police Service cause a record of the Tribunal’s findings to be made on the employee management record of each of the relevant police officers.

Parties

8 Before the Tribunal both the Commissioner of Police and the New South Wales Police Service were parties as well as the individual police officers. These remained the parties before the Appeal Panel and in the proceedings before Sully J. By a Notice of Motion the Respondent sought an order that the State of New South Wales be added to the proceedings before Sully J. Sully J dismissed the Notice of Motion on the basis that there was a lack of utility in changing the parties before the Court in proceedings solely concerned with a referred question of law. His Honour said at [57]:

“If there is any need to reconstitute the proceedings before the Appeal Panel, then some proper application should be made to the Appeal Panel.”

9 The appeal to this Court identified the Appellant in the following way:

“Commissioner of Police/New South Wales Police Service/The State of New South Wales”.

10 The State of New South Wales has never been joined. The estate of Mr Russell in the cross-appeal states that his Honour erred in failing to consider whether the State of New South Wales should have been joined as a party.

11 It is common ground that, pursuant to the provisions of the Police Service Act 1990, the “New South Wales Police Service” has no legal personality. One of the orders sought by the cross-appellant was an order that the “New South Wales Police Service” should be identified as the State of New South Wales.

12 The Appellants, including the State of New South Wales, accept that it is the appropriate party.

13 The jurisdiction of this Court under s118 of the Administrative Decisions Tribunal Act is to “hear and determine” a question of law referred to it. That question, as set out above, refers to the Commissioner of Police and the New South Wales Police Service, but does not refer to the State of New South Wales. This appears to be a case of misnomer in the way in which the proceedings have been described. The terminology used was based on the incorrect assumption that the New South Wales Police Service was a body with legal personality and capable of being an “employer” for purposes of the Act.

14 In view of the conclusion to which I have come, it is not necessary to resolve this issue.

The Relevant Statutes

15 These proceedings involve the interrelationship of three separate statutes: The Anti-Discrimination Act 1977, the Police Service Act 1990 and the Law Reform (Vicarious Liability) Act 1983.

16 The Anti-Discrimination Act consists of a series of Parts which are concerned, respectively, with discrimination on the basis of a number of different characteristics: race, sex, transgender grounds, marital status, disability, responsibilities as a carer, homosexuality and age. Each Part of the Act comprises a number of Divisions identifying the spheres of conduct with respect to which discrimination is prohibited. In each Part there is a Division with respect to “Discrimination in work”. In most cases there is provision in a separate Division for discrimination in other areas, generally encompassing education, provision of goods and services, accommodation and registered clubs. In a number of Parts there is separate provision making vilification on the relevant ground unlawful.

17 Some sections of the Act create offences which, with the approval of the Attorney General, may lead to criminal proceedings. The remedial provisions relevant to the present case require a complaint which, after the performance of functions by the Anti-Discrimination Board, culminate in a hearing before the Equal Opportunity Division of the Administrative Decisions Tribunal.

18 Section 7 of the Act provides, relevantly:

“7(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race …”

19 Section 19 of the Act provides:

“19 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.”

20 By s4(1) of the Act services includes:

“(e) services provided by a council or public authority”.

21 It was common ground before the Tribunal that the Police Service was a public authority. In some manner, not precisely articulated in the judgment of the Tribunal, the police were found to provide a relevant “service” to Mr Russell. The Tribunal noted that Mr Russell suffered injury during his apprehension and arrest and his property was damaged. It was, apparently on that basis, that the Tribunal concluded that “services” had been provided by the police and that they had been provided on terms which were discriminatory in the relevant sense. This is not a matter before this Court.

22 It is pertinent to note that in the course of reaching that decision the Tribunal relied on a statement of mission and functions and the definition of “police services” contained in s6 of the Police Service Act. In s6(3) of that Act, “police services” is defined inter alia to extend to:

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

23 The other contravention of the Anti-Discrimination Act which was before the Tribunal was based on s20C of that Act, which provides:

“20C(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.”

24 A critical section for these proceedings is s53 which provides:

“53(1) An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.
(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.
(3) Despite subsection (1), a principal or an employer is not liable under that section if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.
(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.”

25 Section 123 was relied on and it provides:

“123(1) A contravention of this Act shall attract no sanction or consequence, whether criminal or civil, except to the extent expressly provided by this Act.”

26 Section 113 is important.

“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 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 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.
(2) The power of the Tribunal to award damages to a complainant shall, in the case of a complaint lodged by a representative body, be taken to be a power to award damages to the person or persons on behalf of whom the complaint is lodged and not to include a power to award damages to the representative body.
(3) In making an order for damages under this section concerning a complaint lodged on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons.
(4) If 2 or more vilification complaints are made in respect of the same public act of the respondent and those complaints are found to be substantiated, the Tribunal must not make an order or orders for damages under this section that would cause the respondent to pay more than $40,000 in the aggregate in respect of that public act.”

27 The power to award “damages” by way of compensation under s113(1)(b)(i) is a power to order such payment by “the respondent”. The word “respondent” is defined by s87 to mean:

“respondent, in relation to a complaint means the person or each of the persons against whom that complaint is lodged.”

28 Section 88(1) makes provision for lodging of complaints:

“88(1) … a complaint in writing in respect of any contravention of this Act or the regulations which is alleged to have been committed by a person … may be lodged with the President …”

29 By s96, the Tribunal is obliged to “hold an inquiry into each complaint … referred to it …”.

30 Recovery of amounts ordered to be paid is the subject of provision in the Administrative Decisions Tribunal Act:

“82(1) For the purposes of the recovery of any amount ordered to be paid by the Tribunal (including costs, but not including a civil or other penalty), the amount is to be certified by the Registrar.

(2) A certificate given under this section must identify the person liable to pay the certified amount.
(3) A certificate of the Registrar that:
(a) is given under this section, and
(b) is filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate,
operates as such a judgment.
(4) A party to proceedings in respect of which an amount has been certified by the Registrar under this section may apply to the Tribunal for a review of the decision to certify that amount.”

and

“82A A civil or other penalty ordered to be paid by the Tribunal may be registered as a judgment debt in a court of competent jurisdiction and is enforceable accordingly.”

31 It was common ground that, notwithstanding the date of the conduct complained of, these proceedings are to be determined on the basis that s4B of the Anti-Discrimination Act applies. Section 4B was introduced by the Anti-Discrimination Amendment Act 1997. Section 4B was inserted by a 1997 amendment Act and it provides:

“4B(1) A reference in this Act to an employer:
(a) in relation to employment in a Department, is a reference to the relevant Department Head, and
(b) in relation to employment in the Police Service, is a reference to the Commissioner of Police, and
(c) in relation to employment in the Education Teaching Service, is a reference to the Director-General of the Department of School Education.
(2) Anything determined or done with respect to any matter concerning any such employment by an officer or employee in any Department, in the Police Service or in the Education Teaching Service who is authorised to determine and do things in that respect is taken to have been determined or done by the Department Head, Commissioner of Police or Director-General of the Department of School Education, respectively.
(3) Subsection (2) includes anything determined or done with respect to:
(a) any offer of employment, or
(b) the terms and conditions on which employment is offered, or
(c) the opportunity afforded for promotion, transfer, training or other benefits associated with employment, or
(d) dismissal from employment.”

32 This section was introduced, in part, to overcome doubts that had been expressed about the application of the Act to statutory office holders in Director-General of Education v Breen (1982) 2 IR 93. In that case Hutley JA said, obiter, that only the “legal employer” could be guilty of discrimination (at 103). Hope JA found this proposition to have “considerable substance” and, in view of the authority of the Director-General of Education under the relevant statute, recommended legislative amendment (98-99).

33 The purpose of s4B is to ensure the application, in the circumstances of employment to which it refers, of the various duties imposed upon employers by the Act. As I have indicated above, each of the different Parts has a Division relating to discrimination in work, providing that it is “unlawful for an employer” to discriminate on the relevant ground in the respects identified in the respective sections. However, an employer may also become liable by reason of the application of s53.

34 There is no definition of employee. However, s4 provides:

“ employment includes work under a contract for services.
employment agency means a person who, for profit or not, provides services for the purpose of finding work or employment for others or for supplying employers with workers or employees.”

35 The Police Service Act establishes a body known as the “Police Service of New South Wales”. As indicated above this body is not a separate legal personality, but an unincorporated body said to be comprised of members. Section 5 provides:

“5 The Police Service comprises the following members:
(a) The Commissioner;
(b) members of the Police Service Senior Executive Service.
(c) all other police officers and administrative officers employed under this Act;
(d) temporary employees”.

36 In s6 the mission and functions of the Police Service are set out. By s7 certain values of the members of the Police Service are outlined. Section 8 provides:

“8(1) The Commissioner is, subject to the direction of the Minister, responsible for the management and control of the Police Service.
(2) The responsibility of the Commissioner includes the effective, efficient and economical management of the functions and activities of the Police Service.
(3) The Commissioner may classify the various duties that members of the Police Service are required to perform and allocate the duties to be carried out by each such member.
(4) The Commissioner may issue (and from time to time amend or revoke) instructions to members of the Police Service with respect to the management and control of the Police Service.
(5) This section is subject to the other provisions of this Act and the regulations.”

37 Section 10 provides:

“10(1) In addition to the position of Commissioner, the positions in the Police Service consist of such positions as the Commissioner may determine in accordance with this Act.
…
(4) Police officers of the rank of constable (or such of those police officers as the Commissioner determines) are to be appointed to that rank or to a grade within that rank, and not to a separate position in the Police Service.
(5) Temporary employees … are members of, but do not hold positions, in the Police Service.”

38 Section 11 relevantly provides:

“11(1) The Commissioner is required to designate the positions in the Police Service which are to be held by police officers.

39 Section 12 provides:

“12(1) The ranks of police officers within the Police Service are (in descending order) as follows:
(a) Commissioner.
(b) Member of the Police Service Senior Executive Service.
(c) Superintendent (other than a member of the Police Service Senior Executive Service).
(d) Inspector.
(e) Sergeant.
(f) Constable.”

40 Part 4 of the Act concerns the appointment, term and removal of the Commissioner of Police. By s27 the employment of the Commissioner is to be governed by a contract of employment.

41 Part 5 of the Act makes provision for the Police Service Senior Executive Service. By s33, that service comprises persons holding the positions contained in the Schedule to the Act. Section 41 provides:

“41(1) The employment of an executive officer shall be governed by a contract of employment between the officer and the Police Board.
(2) A contract of employment may be made before or after the appointment of the executive officer concerned.
(3) The executive officer is not appointed by, nor is an executive officer’s term of office fixed by, the contract of employment.
…”

42 Part 6 of the Act is concerned with non-executive officers of the Police Service. Division 2 is concerned with appointment of non-executive officers. Section 64 provides that such appointment is to be made, in the case of commissioned police officers, by the Police Board and in any other case, by the Commissioner. There is no reference in this Part to a requirement that employment be pursuant to a contract of employment.

43 Division 4 of Pt 6 is concerned with the appointment of constables and sergeants. Section 73 empowers the Commissioner to make appointments of persons to the rank of constable. Section 77 regulates appointments by the Commissioner of appropriate persons to the rank of sergeant.

44 Part 8 of the Act was referred to but only for its heading which was: “General provisions relating to employment of all members of the Police Service”. The sections in this Part make provision for members of the Police Service resigning to contest elections, requirements of citizenship, and certain other matters. They apply to all members of the Police Service.

45 The Law Reform (Vicarious Liability) Act, 1983 is described in its long title as: “An Act with respect to the vicarious liability of masters and of the Crown in respect of the commission of certain torts.

46 The relevant section is s8:

“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.
(2) Subsection (1) does not apply to or in respect of a tort committed by a person in the conduct of any business, enterprise, undertaking or activity which is:
(a) carried on by him on his own account; or
(b) carried on by any partnership, of which he is a member, on account of the partnership.”

47 It is pertinent to note s7 which provides, in parallel terms:

“7 Notwithstanding any law to the contrary, a master is vicariously liable in respect of a tort committed by his servant in the performance or purported performance by the servant of an independent function where the performance or purported performance of the function:
(a) is in the course of his service for his master or is an incident of his service (whether or not it was a term of his contract of service 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 his master.”

48 Section 5 of the Act contains definitions including:

“ ‘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.”

Section 5(2) states that a reference to:

“(a) a function includes a reference to a power, authority and duty; and
(b) the performance of a function includes a reference to the exercise of the function and the failure to perform or exercise the function.”

49 Section 6 provides:

“6 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.”

The decision of Sully J

50 Sully J held that the Commissioner of Police was not the employer of the police officers for purposes of s53 of the Anti-Discrimination Act. His Honour’s conclusion was based on an analysis of the Police Service Act. His Honour was concerned to determine whether or not that Act had altered the common law position that police officers are not employees. The basic authorities in Australia for this proposition are Enever v the King (1906) 3 CLR 969 and Attorney General for New South Wales v Perpetual Trustee Co Limited (1954) 92 CLR 113. After careful consideration of the provisions of the Police Service Act, his Honour concluded that the Act did not disclose a legislative intention to abrogate the longstanding position of the common law with respect to the position of police officers.

51 The approach of Sully J on this issue is reflected in the paraphrase of s53 with which his Honour commenced this section of his reasons. His Honour proceeded on the basis that s53 could have incorporated within it the definition of “employer” in s4B, so that it read:

“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.”

52 As can be seen, his Honour deleted the reference to “agent” and “principal” as irrelevant and substituted for the word “employer” the “Commissioner of Police”. This transliteration is based on the assumption that s4B has no implications for the concept of an “employee”. The word “employee” is not the subject of any definition. Subsequent to the judgment of Sully J, a similar issue was considered by this Court in Police Service of New South Wales v Honeysett [2001] NSWCA 452.

53 His Honour also considered s8 of the Vicarious Liability Act. His Honour held that proceedings under the Anti-Discrimination Act were an action in tort within the meaning of that section. His Honour referred to s6 of the Vicarious Liability Act, which deems a police officer, for purposes of vicarious liability, to be a person in the service of the Crown. In this respect, his Honour said, the traditional common law position had been altered. By reference to s5(1) the Crown Proceedings Act 1988, his Honour concluded that the right of action asserted against the Crown should be brought against the “State of New South Wales”. He accordingly answered the question set out in par [1] above; “No; but the State of New South Wales is liable”.

54 The issue that Sully J posed for his consideration was whether or not the proceedings before the Tribunal under the Anti-Discrimination Act were proceedings in “tort”, within s8 of the Vicarious Liability Act. Sully J referred to the obiter observations in this regard made by McHugh JA in Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 604, where his Honour said:

“… I am of opinion that an action under the Anti-Discrimination Act 1977 is an action in tort (see Halsbury, 4th ed, vol 45 para 1201 at 558)…”

55 This opinion was adopted by Lee J in Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at 65.

56 The relevant passage from the fourth edition of Halsbury upon which McHugh JA, Lee J and Sully J all relied is as follows:

“Rights of action in tort. Those civil rights of action 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.” [Footnotes omitted]

57 Sully J applied this definition and found that proceedings instituted by way of complaint under the Anti-Discrimination Act are proceedings which “[exhibit] the characteristics of a tort as defined, in particular, by the passage … cited from Halsbury”.

58 His Honour went on to say that the contravention of the Act by the individual police officers was done in the purported performance of a function in the course of service with the Crown. His Honour accordingly concluded that the Crown was liable for the conduct and 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 .”

The Appeal

59 On the appeal Mr R Kenzie QC, who appeared with Mr J Pearce for the Appellants submitted that his Honour erred in holding that a contravention of the Anti-Discrimination Act was a tort for the purposes of the Vicarious Liability Act.

60 Mr J Basten QC who appeared with Mr S Beckett for the deceased, submitted that his Honour was correct in characterising contravention of the Anti-Discrimination Act as a tort. On the cross-appeal he submitted that, on the proper construction of the Act, the Commissioner of Police was also liable under s53. Mr Kenzie contested this submission.

61 Ms C Ronalds appeared for the police officers. She filed an outline of submissions. She adopted Mr Basten’s submissions on both the appeal and the cross-appeal.

Application of the Vicarious Liability Act

62 The Appeal Panel of the Administrative Decisions Tribunal has a specific statutory jurisdiction. This Court’s jurisdiction is determined by the existence of a “question of law arising in the appeal” to an Appeal Panel, pursuant to s118(1) of the Administrative Decisions Tribunal Act. The parties in this Court proceeded, as apparently they had done before Sully J, on the basis that any issue of vicarious liability on the part of the State should be determined in these proceedings. However, this court cannot be given jurisdiction by consent. In my opinion, the contention that led his Honour to answer the question in the way he did, is not capable of arising before the Administrative Decisions Tribunal or, on appeal, before the Appeal Panel or, upon reference under s118, in the Supreme Court.

63 Section 113(1)(b)(i) of the Anti-Discrimination Act 1977, as set out above, empowers a Tribunal to order a “respondent” to pay “damages … by way of compensation”. “Respondent” is defined in s87 to be a person or persons “against whom” a “complaint is lodged”. No complaint was lodged against the Crown or the State of New South Wales. The Crown or the State could, of course, be the subject of a complaint directly. In the present case the relevant allegation was of an indirect liability by reason either of vicarious liability under s8 of the Vicarious Liability Act or liability as an “employer” within s53 of the Anti-Discrimination Act. The latter is plainly a provision which would justify a party being joined as a respondent before the trial. The former in my opinion, is not.

64 In my opinion the Vicarious Liability Act has nothing to do with the relevant regime. If the State of New South Wales, or some manifestation of it, is merely joined as a respondent then an award may be made against it by the Tribunal pursuant to s113. However, the Tribunal has no jurisdiction to inquire into, or to make any orders based on a finding of vicarious liability pursuant to the Vicarious Liability Act.

65 The following is the relevant statutory regime:

(i) Complaints may be made about alleged contraventions of the Act (s88(1)).

(ii) The person “against whom” a complaint is lodged is the “respondent” (s87).

(iii) An act by an agent or employee is, in certain circumstances, “taken to have been done by the principal or employer” (s53(1)).

(iv) Where s53 applies a “principal or employer” can be a respondent.

(v) The Tribunal is empowered to hold an inquiry “into each complaint” (s96).

(vi) A Tribunal may order the payment of “damages … by way of compensation” by a “respondent” (s113).

(vii) An amount ordered to be paid by a respondent may be registered as a judgment debt in a court of competent jurisdiction and enforceable accordingly (s82A of the Administrative Decisions Tribunal Act).

66 Save insofar as s53 can be so described, there is not, in my opinion, any room in this scheme for the application of principles of vicarious liability, whether at common law or by statute. The obligations of a person, other than the person whose conduct is contrary to the Act or who is deemed to have committed the conduct of that person, may neither be the subject of an inquiry by the Tribunal nor be determined by the Tribunal. There may be issues of contractual obligation to meet certain payments. There may be issues of vicarious liability at common law. There may be issues of vicarious liability under a statute. Whilst the attention in this case is focused on s8 of the Vicarious Liability Act, that section performs the same function as s7 performs with respect to all other employers. The determination of issues of this character lies with the ordinary courts. Neither the Tribunal, nor an Appeal Panel on appeal from the Tribunal, has jurisdiction to inquire into such matters.

67 The Tribunal may make an order against a respondent only. Employers who become respondents by reason of s53 may have orders made against them. Section 53(2) has the effect that an employer and employee are jointly and severally liable. Vicarious liability makes the employer entirely liable, subject to rights of indemnity, if any. The Tribunal has no jurisdiction to inquire into or determine such issues.

68 The Vicarious Liability Act issue does not arise on the question as posed by the Appeal Panel. It arises only because of the acceptance by Sully J of submissions made to him on behalf of the deceased. To answer the questions in the way his Honour did, in effect authorises the Tribunal to exceed its jurisdiction. It ought not be answered on this basis. Furthermore, the question is not a question capable of arising in the appeal to the Appeal Panel. It should not be answered. In my opinion the appeal should be allowed.

69 Although it is not necessary for purposes of the decision, I should indicate that I do not share the opinion expressed by McHugh JA, and adopted by Lee J and Sully J, that a complaint leading to an order of payment of “damages … by way of compensation” under s113(1)(b)(i) constitutes a “tort” within the meaning of s8 of the Vicarious Liability Act.

70 There is no doubt that statutes can create new torts and have done so. There is no simple definition of a tort. The elements that can be said to characterise torts are able to be stated at different levels of generality. The fact that all or most torts can be described in a particular way does not mean that everything that can be described in that way constitutes a tort. Even s52 and s82 of the Trade Practices Act 1974 (Cth) have been said not to create liability in tort for purposes of contribution under s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (Hampic Pty Ltd v Adams [1999] NSWCA 455 at [61]).

71 I note that the definition of tort in Halsbury, relied on in the prior authorities, refers to “civil rights of action” and “rights of action in tort”. In my opinion, it is not accurate to describe proceedings by way of complaint before a Tribunal as a “right of action”. That terminology is reserved for proceedings in a court of law.

72 A similar conclusion has been reached by Menhennitt J in Philip Morris Limited v Ainley & Incorporated Nominal Defendant [1975] VR 345. The issue was whether an action under the Workers Compensation Act 1958 (Vic), in which costs had been awarded, was an action in tort within the meaning of the relevant Rules of the Supreme Court. His Honour held that it was not. His Honour said at 349:

“ … an action of tort is one in which the remedy is a common law cause of action although the right being enforced in the action may be a right created by either the common law or statute.”

73 His Honour went on to characterise the right in that case in the following way (at 349):

“In essence, the action is one to enforce a statutory right by a statutory cause of action. This is made clear by the section itself. Whereas claims for damages for breach of statutory duties which create civil rights and liabilities are, without express provision, enforceable by common law actions, in the case of s62(1)(b) of the Workers Compensation Act it is provided expressly that ‘all questions as to the right to and amount of any such indemnity shall in default of agreement be settled by action or if the parties consent by the Board’.
This provision not only expressly provides for a statutory cause of action but, by implication, proceeds on the assumption that no common law cause of action would otherwise be available.”

74 His Honour’s reasoning was adopted and applied by the Court of Appeal of the Supreme Court of Victoria in Esso Australia v Victorian Workcover Authority (2000) 1 VR 246. That case involved proceedings for an indemnity by an insurer who had paid compensation benefits under the Accident Compensation Act 1985 (Vic). One of the issues was the award of interest, specifically whether the proceedings were for the recovery of “debt or damages” within s60(1) of the Supreme Court Act 1986 (Vic). Winneke P referred to the statutory entitlement to indemnity from negligent third parties against compensation which had been paid. His Honour said:

“[27] The person who is seeking to enforce his entitlement is not bringing proceedings to recover ‘debt or damages’. Rather he is enforcing a statutory right which is sui generis and which, if established, will have as one of its incidents a right to call for payments already made in partial satisfaction of those rights. …
[28] … the statutory right of indemnity conferred by the Act upon the person who has paid the compensation is not to be equated to the cause of action which the worker would, but for the Act, have had against the person liable to pay damages to him. This is notwithstanding the fact that it is an ingredient of the statutory right, sought to be enforced, that the person from whom the indemnity is sought was liable to pay damages to the worker. The claim to enforce the entitlement to indemnity is not a claim in tort. It is a cause of action created by statute for an indemnity against the person liable to pay damages to another. … Nor is the action to enforce the right of indemnity to be confused with, or characterised as, a right to recover a debt or damages from the person liable to indemnify.”

75 In my view such reasoning is applicable to the Vicarious Liability Act. The word “tort” in that Act is concerned with causes of action that can be enforced in courts. It may be the case that racial discrimination constitutes a tort at common law (see Constantine v Imperial Hotels [1944] KB 693).

76 Furthermore, in my opinion, the purposes of the Anti-Discrimination Act are not well served by permitting recovery from employers to whom s53 does not apply. Vicarious liability serves the tort law purpose of shifting the burden of a loss to a person who is a more efficient distributor of the loss. The purposes of the Anti-Discrimination Act are better served by focussing that burden on the actual perpetrator or perpetrators of the unlawful conduct. I do not believe that loss distribution is a purpose of the Anti-Discrimination Act. Denunciation, punishment and deterrence appear to be the primary considerations. These objectives are better served by joint and several liability under s53(2) than by shifting the entire burden of an award of damages to the employer, subject to such rights, if any, of indemnity that the employer may have.

77 The usual situation is one in which there is no doubt about a person’s status as an employee. In such a case, on the Respondent’s contention, both s53 of the Anti-Discrimination Act and s7 or s8 of the Vicarious Liability Act may apply. In the former case an employer is not liable under s53(1) if it did not authorise the act and under s53(3) can establish a defence that it took all reasonable steps to prevent the employee from contravening the Act. No such exclusion from liability is available under the Vicarious Liability Act. This factor highlights the widely differing purposes of the two Acts.

78 In my opinion, the balance between deterrence, denunciation and punishment on the one hand, and compensation on the other hand, is so widely disparate – s113 damages have been restricted to $40,000 since 1982 - that proceedings for unlawful discrimination should not be regarded as a “tort” for purposes of the Vicarious Liability Act. However, it is not necessary to finally determine this matter in these proceedings.

The Construction of s53 of the Anti-Discrimination Act

79 Counsel for the Appellants supported the approach to construction of s53 adopted by Sully J. As I have indicated above, his Honour read the words “Commissioner of Police” in place of the word “employer” in s53. This left the word “employee” unaffected. In this Court, the Appellants supported his Honour’s assumption that the word “employee” in s53, and elsewhere in the Anti-Discrimination Act, is to be understood as a legal concept identifying a particular common law relationship. It is extended to encompass independent contractors, by the definition of “employment” to including “work under a contract for services”, but the statute did not, it was submitted, otherwise affect the common law concept.

80 As indicated above, there are a number of categories of members of the Police Service of New South Wales. Some of the categories are expressly stated to be employees. All members of the Senior Executive Service must enter into a contract of employment. The Police Service Act, notably, does not treat police officers as being subject to a contract of employment. It was this differentiation which, to a substantial degree, caused Sully J to conclude that the traditional common law position has not been altered by the Police Service Act.

81 The issue, however, is not one of construction of the Police Service Act directly. The issue is the meaning of the word “employee” in the Anti-Discrimination Act 1977, particularly after its amendment in 1997 to include s4B. Whether a word such as “employee” is used in a technical legal sense depends on the construction of the specific statute in which it appears.

82 The word “employee” has a legal meaning in the sense of a person who has a contract of employment with another. However, the word is capable of being used in a more general sense to encompass a person who is paid for performing work on a regular basis at the request, and at the direction, of another. In particular statutes the word “employee” will often be construed to extend to an independent contractor, even in the absence of an express statutory extension of a character contained in the Anti-Discrimination Act. The issue turns on the proper construction of the word in its context, in which process the scope and purpose of the statute under consideration plays an important part.

83 Subsequent to the decision of Sully J, a similar issue arose in this Court in Police Service of New South Wales v Honeysett, supra. The Police Service paid workers compensation to a passenger of a car driven by a police officer. It brought an action against the officer for indemnification. Pursuant to s3 of the Employees Liability Act 1991 the police officer would have been liable to indemnify the Service if she was not an employee. That section commences with the words: “If an employee commits a tort for which his or her employer is also liable …”.

84 Priestley JA, with whom Ipp AJA and Sperling J agreed said:

“[22] The Police Service Act in my opinion shows a use of the idea of employment in its ordinary sense running in parallel with a recognition of the continuing office of constable as an office that can be exercised simultaneously with an employment relationship existing between the Police Service and the police officer. This seems to me to be a realistic recognition of the fact that the range of duties a police officer may be required to fulfil pursuant to the Police Service Act appears to be at least potentially and I would think almost certainly in practice, much wider than the range of duties required by the office of constable.”

85 His Honour also said:

“[30] The Police Service Act shows that in many ways the conditions of service of police officers had been substantially assimilated to those of ordinary employees; the Workers Compensation Acts have shown the same development as have various Acts regulating industrial relations. The fact that some of these Acts, preceding the Police Service Act , only apply to police officers by virtue of deeming provisions does not detract from the factual situation that has now been reached that in virtually every way police officers are treated statutorily as employees and, in the Police Service Act , in 1990, were treated as employees in an undefined sense.
[31] When those considerations are taken into account with the strong purpose behind the Employees Liability Acts of ensuring that persons in the position of employer should not be able to pass on to persons in the position of employees liabilities incurred by the employers as a result of things done by employees in the course of their employment, it seems to me that the word employee in s3 of the Employees Liability Act 1991 should not only be read as including police officers working (to use a neutral term) for the Police Service pursuant to the Police Service Act but in fact means a class of persons including police officers working pursuant to that Act.”

86 A similar conclusion was reached by the Full Court of the Federal Court of Australia in Konrad v Victoria (1999) 91 FCR 95 where the issue is whether a member of the Victorian Police Force was an employee for the purposes of Div 3 Pt VI A of the Industrial Relations Act 1988 (Cth). The scope and purpose of the Act there under consideration led to the result that police officers were held to be employees for purposes of that legislation (see especially at [13]-[15], [59], [100] and [104]). The intent of the legislation was that it applied to “all workers” (at [14] and see [59] and [104]).

87 In the statute presently under consideration, the word “employee” appears in each of the provisions of the Act rendering it “unlawful for an employer to discriminate against an employee” on the relevant ground, in the present case, race. For beneficial legislation, such as the Anti-Discrimination Act, a liberal interpretation is appropriate. This is reinforced by the purposive approach required by s33 of the Interpretation Act 1987. (See IW v City of Perth (1997) 191 CLR 1 esp at 11-12, 18, 22-23, 58.)

88 Nothing in the scope and purpose of the Act suggests that it should be limited to persons subject to contracts of employment, even with the specific statutory extension to include work under a contract for services. Insofar as persons do “work” in a context closely analogous to “employment”, the purpose of the legislation would be better served by extending the protection of the Act to such a relationship. There must be some element of regularity and permanence in the relationship, and also an element of direction and control of work, for it to fall within an extended sense of the word “employment”. But where such context exists, the Court should be slow to hold that the Act has no application.

89 The construction for which the Appellants contend would result in the exclusion of all police officers from the benefits of the legislative scheme. Mr Kenzie QC accepted that the implication of the construction for which he contended was that the only members of the Police Service who could complain against discrimination on the grounds of race, sex, disability, homosexuality, age, etc. were those persons who were expressly made the subject of a provision in the Police Service Act that they have a contract of employment, e.g. members of the Senior Executive Service, or those who in fact had such contracts, e.g. administrative officers. Accordingly, on the submissions for the Appellants in this case, the only members of the Police Service who would not be covered by the protection of the Anti-Discrimination Act, in the sense that they could complain about discrimination against them in work, are police officers. This is a most unlikely result, particularly after the enactment, in 1997, of s4B.

90 Appointments to the Senior Executive Service and appointments to non-executive positions of commissioned police officers are made by the Governor on the recommendation of the Police Board. (See s36(1) and s64(1)(a) of the Police Service Act.) Appointment of constables, sergeants and administrative officers are made by the Police Commissioner. (See s64(1)(b).) It is the Commissioner who is denoted as the relevant “employer” by the 1997 amendments of the Anti-Discrimination Act. This is no doubt a reflection of the Commissioner’s authority over the whole of the Service, established by s8 of the Act, quoted above. It would be an extraordinary anomaly if, as the Appellants contend, the Commissioner was deemed to be the employer under s4B for the purposes of the Senior Executive Service, whom he does not appoint, but is not such an employer for purposes of the non-commissioned officers, whom he does appoint.

91 Counsel for the Appellants also accepted that it was a necessary consequence of the construction for which he contended that if a member of the Senior Executive Service committed a discriminatory act against a third party, the Commissioner of Police could be held liable under s53. However, no such consequence would flow in the case of police officers. This is another anomaly which is unlikely to have been intended.

92 There are a number of textual indications that the word “employee” should not be read in a narrow sense. The word appears most frequently in the context of references to “work”. Accordingly, the Division in each of the Parts which refer to discrimination in employment is headed “Discrimination in work”. The definition of employment is expressed to include “work under a contract for services”. Similarly the definition of employment agency refers, disjunctively, to the conduct of “supplying employers with workers or employees” in the context of “finding work or employment for others”.

93 Of particular significance for present purposes is the reference in s4B(2) to “such employment by an officer or employee”. Each of the paragraphs of s4B(1) relate to an employer “in relation to employment” in, respectively, any government Department, the Police Service and the Education Teaching Service. The reference to “employment” in the phrase “in relation to employment” in subs (1) was intended to encompass persons who were both “officers” and “employees”. This is a strong textual indicator that the word “employee”, where otherwise appearing in the Act, should not be given a narrow definition.

94 In my opinion the purpose served by the various sections in which the word “employee” appears, including s53, is such that the word “employee” should not be confined to situations in which there is a contract of employment, but extend to the situation of a police officer.

95 The question before the Court should be answered:

“Yes, with respect to the Commissioner of Police.”

96 The Respondents should pay the Appellants’ cost of the appeal. The First Cross-Respondent should pay the costs of the Cross-Appellant and of the Second to Ninth Cross-Respondents in the cross-appeal. In the appeal the Respondents should have a certificate under the Suitors Fund Act, if entitled.

97 STEIN JA: I have had the benefit of reading the draft judgment of the Chief Justice. I agree with his Honour that the cross-appeal should be allowed and the question before the court answered ‘Yes with respect to the Commissioner of Police’.

98 Counsel for the cross-appellant, Mr Basten QC, accepted that if the cross-appeal succeeded, it would be unnecessary for the court to deal with the appeal. While I generally agree with what the Chief Justice has said on the jurisdiction of the Tribunal under the Law Reform (Vicarious Liability) Act 1983, I would prefer, in the circumstances that the cross-appeal should be upheld, not to determine the issue.

99 Spigelman CJ has made some obiter remarks on whether an order for payment of damages under s 113 of the Anti-Discrimination Act 1977 constitutes a tort. I would prefer to leave comment on this issue to another case on another day.

100 Accordingly, it is my opinion that the appeal should be dismissed and the cross-appeal allowed with costs.

101 DAVIES AJA: I agree with Spigelman CJ.

**********