Derrick v State of NSW (NSW Police Force)

[2020] NSWCATAD 235

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Derrick v State of NSW (NSW Police Force) [2020] NSWCATAD 235

Hearing dates:

25 August 2020

Date of orders:

23 September 2020

Decision date:

23 September 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C A Ludlow, Senior Member

Decision:

Leave to proceed with the complaint of disability discrimination is refused.

Catchwords:

EQUAL OPPORTUNITY - application for leave to proceed with complaint – disability discrimination - whether investigation of alleged crime is a service

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Police Act 1990 (NSW)

Victims Rights and Support Act 2013 (NSW)

Cases Cited:

Commissioner of Police v Mohammed [2009] NSWCA 432

Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143

IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1

Mariani v NSW Police Force, State of NSW [2013] NSWADT 35.

Robinson v Commissioner of Police, NSW Police Force [2013] FCA 770

VPZ v Victoria Police (Human Rights) [2017] VCAT 1398

Texts Cited:

None cited

Category:

Procedural and other rulings

Parties:

Oliver Derrick (Applicant)
State of NSW (NSW Police Force (Respondent)

Representation:

Counsel:
J Seymour (Respondent)

Solicitors:
Applicant (Self Represented)
Office of the General Counsel, NSW Police Force (Respondent)

File Number(s):

2020/00159397

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. Mr Derrick, the applicant in these proceedings, seeks the leave of the Tribunal to proceed with his complaint under s 96 of the Anti-Discrimination Act 1977 (the AD Act). On 5 November 2019 the President of the Anti-Discrimination Board of NSW received a complaint under the AD Act from Mr Derrick against the respondent, the State of New South Wales (NSW Police Force). The applicant alleged that:

1. He has been a victim of extortion, ransoming with menace, stalking, harassment and intimidation.

2. On 5 March and 2 September 2019 he was discriminated against by the respondent on the ground of a presumed disability when a police officer refused to provide him with services.

3. The services which he has been denied are support services which he is entitled to under the NSW Charter of Victims’ Rights.

2. The President declined the complaint on 26 May 2020 on the basis that it was lacking in substance and that the subject matter of the complaint had been dealt with by another body, namely the Department of Communities and Justice – Victims Services.

3. On 27 May 2020 the applicant requested that the complaint be referred to this Tribunal under s 93A of the AD Act.

Legislation and principles governing the grant of leave

4. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: (s 87A(1)(a)(i) of the AD Act).

5. Section 92 provides:

“92 President may decline complaint during investigation

(1)   If at any stage of the President’s investigation of a complaint—

(a)   the President is satisfied that—

(i)   the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

(ii)   the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or

(iii)   the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or

(iv)   another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or

(v)   the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or

(vi)   the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or

(vii)   it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or

(b)   the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,

the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.

(2)   The President, in a notice under this section, is to advise the complainant of—

(a)   the reason for declining the complaint or part of the complaint, and

(b) the rights of the complainant under sections 93A and 96.”

6. Where the President has declined a complaint under s 92 of the AD Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so (s93A).

7. Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), as has happened in this case, the complaint may not be the subject of proceedings before the Tribunal unless the Tribunal grants leave (s 96(1)).

8. Section 96 of the AD Act gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed, which is not confined to the grounds on which the President declined the complaint, although the Tribunal may have regard to those grounds. That discretion must, however, be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme. Leave must be granted or refused depending on what is fair and just in the particular circumstances. It is for the plaintiff to establish that the leave should be granted (Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25-36] [58-61]).

The nature of the complaint

9. Mr Derrick complains that the NSW Police discriminated against him on 5 March and 2 September 2019 by failing to provide him with services he requested on the grounds that they presumed he had a disability, namely mental illness. He described the relevant services as the provision of legal assistance to him to pursue his dispute with a bank or investigate alleged criminal activity by a bank. This included allegations that he had been defrauded, stalked and harassed by the bank in 1994-95.

10. Section 49A provides:

“49A Disability includes past, future and presumed disability

A reference in this Part to a person’s disability is a reference to a disability—

(a)   that a person has, or

(b)   that a person is thought to have (whether or not the person in fact has the disability), or

(c)   that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d)   that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).”

11. Section 49M provides:

“49M Provision of goods and services

(1)   It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability—

(a)   by refusing to provide the person with those goods or services, or

(b)   in the terms on which he or she provides the person with those goods or services.

(2)   Nothing in this section renders it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.”

12. Section 4 defines “services” as:

“services includes—

(a)   services relating to banking, insurance and the provision of grants, loans, credit or finance,

(b)   services relating to entertainment, recreation or refreshment,

(c)   services relating to transport or travel,

(d)   services of any profession or trade,

(e)   services provided by a council or public authority,

(f)   services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.”

13. Section 49B provides:

“49B What constitutes discrimination on the ground of disability

(1)   A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator—

(a)   on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, 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 who does not have that disability or who does not have such a relative or associate who has that disability, or

(b)   requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2)   For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

…”

14. In order to succeed in his complaint, Mr Derrick must show:

1. That the respondent provides the relevant services.

2. That the respondent refused to provide the relevant services to Mr Derrick on the ground that it believed he had a disability, namely mental illness;

3. That by doing so it treated him less favourably than it would have treated a person whom it did not presume to have a disability in the same or similar circumstances.

The applicant’s evidence and submissions

15. As well as the complaint and subsequent correspondence with the Anti-Discrimination Board, Mr Derrick provided:

1. A determination of the Independent Assessor concerning his complaint dated 7 October 2017 against the Financial Ombudsman Service Limited (FOS)

2. The Australian Banking Industry Ombudsman Bulletin No 25, June 2000

3. The Charter of Victims Rights for NSW

4. Written submissions (undated)

16. The determination related to FOS’s handling of Mr Derrick’s dispute with a bank. Mr Derrick claimed that the bank had refused to provide him with any information concerning accounts he had opened with the bank in the past, and was doing so to cover up theft of his funds. It refers to court proceedings commenced by Mr Derrick against the bank in order to obtain the information he was seeking.

17. The Independent Assessor found that one of the service complaints made by Mr Derrick was upheld, in that FOS incorrectly took the position that it could not compel the bank to produce relevant documents which were more than 7 years old. Mr Derrick’s other complaints were not upheld. The Assessor noted, however, that when Mr Derrick made a monetary complaint against the Bank in 2012, FOS called for the Bank to produce documents including those which were more than 7 years old. He recommended that FOS provide an apology to Mr Derrick.

18. Although I had some difficulty following the complex and lengthy history of this matter as outlined in Mr Derrick’s submissions, I understand that Mr Derrick claims that the records he wants from the Bank have not been searched for effectively and that he needs to commence court proceedings to force this to occur. He wants and expects the NSW Police to assist him with this.

19. At the hearing he submitted that the services he was seeking from the respondent were legal services, in particular putting in motion legal proceedings to give him access to legal services.

20. He complained:

“When I attended the local NSW police station, I am confronted by officers who look in my complaint file and continue to allege that I am a mentally ill person..”

21. He claims that when he went to the police asking for legal assistance as he expected under the Charter, they claimed he had mental illness, referred his matter to the local mental health team and refused to provide him with the services he wanted. He said that the respondent offered him mental health services because they assumed his complaint related to a presumed mental illness and did not offer him the full range of services he was entitled to. He submitted that the respondent told him his evidence was not sufficient to show that a crime had occurred.

Evidence and submissions of the respondent

22. The respondent relied on the following:

1. Response to the Anti-Discrimination Board dated 28 April 2020

2. Submissions dated 7 July 2020.

23. The respondent submitted that leave to proceed should be refused on the grounds that:

1. The respondent does not provide “services” within the meaning of the AD Act, either because they are not within its functions or because they do not come within the meaning of the term;

2. The respondent did not treat Mr Derrick less favourably than it would have treated a person without his particular characteristic in the same or similar circumstances;

3. The Department of Communities and Justice investigated Mr Derrick’s complaint of denial of access to services under the Charter and concluded that it was not sustained, therefore the matter has been dealt with by another body.

24. In its submissions the respondent proceeded on the basis that the discrimination was alleged to be on the ground of his actual or presumed disability. This is not how I read Mr Derrick’s complaint. In his complaint he denied he suffered from a mental health condition and stated in his complaint that he felt he was discriminated against due to “presumed disability”. This was repeated in his submissions where he stated he was being treated less favourably due to a “presumed mental health condition/illness.” I have dealt with his complaint on the basis that it relates to a presumed disability.

25. The respondent provided a timeline of its interactions with Mr Derrick which showed that he had alleged fraud by the bank numerous times between 11 June 2013 and 2 September 2019. On these occasions he was informed that the police would not be investigating the allegation due to lack of evidence. He had complained to the Independent Commission Against Corruption (ICAC), the NSW Ombudsman, the Customer Assistance line and the Department of Communities and Justice. No further action was taken by ICAC or the Ombudsman. The Department informed him that it would not be taking any action as it was satisfied that the respondent had acted appropriately.

26. Mr Derrick did not dispute any of the facts as set out in the timeline, except in relation to the interpretation of the respondent’s conduct.

27. The respondent acknowledges that it did not investigate Mr Derrick’s allegations and that the police dealing with him became aware of facts that either indicated Mr Derrick had a mental disability or upon which they presumed he had a mental disability.

28. The respondent said that it had referred Mr Derrick to the Camperdown Crisis Team on occasion as part of their duty of care.

Consideration

29. In the context of alleged discrimination under the similarly worded s 66K(1) of the Equal Opportunity Act 1984 (WA) Brennan CJ and McHugh J said in IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17:

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

30. Taking Mr Derrick’s evidence at its highest, I conclude that the services he sought were an investigation of his allegations that a crime had been committed and providing him with the other legal assistance he requested. The respondent agrees that it did not provide either of these services to him. Mr Derrick relies on the Charter to establish that the respondent should provide him with legal assistance.

31. The mission and functions of the NSW Police Force are contained in s 6 of the Police Act 1990:

“6 Mission and functions of NSW Police Force

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

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

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

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

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

(3)   In this section—

police services includes—

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

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

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

(d)   any other service prescribed by the regulations.

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

(5) The provision of police services in emergencies and rescue operations is subject to the State Emergency and Rescue Management Act 1989 and to the Essential Services Act 1988.

(6) Nothing in this section confers on the NSW Police Force a power to provide a police service in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002.”

32. This does not include the provision of legal assistance.

33. Mr Derrick appears to rely on clause 6.3 of the Charter which states:

“A victim will have access where necessary to available welfare, health, counselling and legal assistance responsive to the victim’s needs.”

34. The Victims Rights and Support Act 2013 defines “victim of crime” as a person who suffers harm as a direct result of an act committed, or apparently committed, by another person in the course of a criminal offence.

35. Section 7 provides:

“(1)   The Charter of Victims Rights is, as far as practicable and appropriate, to govern the treatment of victims in the administration of the affairs of the State.

(2)   Any agency or person exercising official functions in the administration of the affairs of the State (other than judicial functions) must, to the extent that it is relevant and practicable to do so, have regard to the Charter of Victims Rights in addition to any other relevant matter.”

36. The services are only required to be provided if it is practicable, appropriate and relevant to do so.

37. On the available information, Mr Derrick has not established that the Charter requires the NSW Police Force to provide legal assistance to him even if he were a victim of crime. It is not part of the respondent’s functions to provide legal assistance. Therefore Mr Derrick has not established that s49M applies to their refusal to provide it.

38. The respondent submits that investigative services provided by NSW police are not “services” within the meaning of the AD Act. It relied on the decision of VPZ v Victoria Police (Human Rights) [2017] VCAT 1398. At [34] the Tribunal summarised its approach to whether police functions were services including the following:

“Services are not provided when police: investigate an alleged offence; question an alleged offender; arrest an alleged offender; decide whether or not to lay charges; decide to apply for orders such as an apprehended violence order; decide whether or not to prosecute charges; and decide how a matter will proceed in court.”

39. The VCAT relied on two decisions of this Tribunal in relation to the above conclusions: Robinson v Commissioner of Police, NSW Police Force [2013] FCA 770 and Mariani v NSW Police Force, State of NSW [2013] NSWADT 35. Neither case considered a complaint by a member of the public about a refusal by police to investigate an alleged offence.

40. VCAT also held that:

“Those parts of the officer’s duties involving assistance to or protection of members of the public entail the provision of services to the public”. ( at [35])

41. This was consistent with the finding in Robinson that “services” to a person covers activities which are helpful and beneficial to that person; therefore dealing with a person’s bail application did not involve the provision of "services".

42. A similar view was taken in Commissioner of Police v Mohammed [2009] NSWCA 432 where a majority of the Court of Appeal held (at [49]):

“Conduct of police officers with respect to a request for assistance in relation to possible criminal activity, where protection of persons or property may be required, can involve the refusal or provision of “services” for the purposes of s 19 of the Anti-Discrimination Act.”

43. Therefore I have proceeded on the basis that taking action to investigate a matter in response to a complaint by a member of a public can be a service to that person.

44. In order for the complaint to succeed, Mr Derrick would need to establish that the respondent’s refusal to provide the service was caused by it presuming he had a disability. This requires an inference to be drawn. The only evidence Mr Derrick identified in support of such an inference was that he was referred to a mental health service. This of itself does is not logically supportive of such an inference as there is evidence to show that this was done as part of the respondent’s duty of care. It is not possible to draw the required inference.

45. Nor does it seem likely that he could establish that the respondent treated him less favourably because of his presumed disability than it would have treated another person without that disability in the same or similar circumstances. This is because previous complaints had led the police to determine that there was insufficient evidence to indicate a crime had occurred as alleged.

46. For the above reasons I conclude that the complaint is misconceived and lacks substance.

47. There is also evidence that the complaint, in so far as it relies on legal assistance under the Charter of Victim’s Rights, has been dealt with by the Department. Taking both factors into consideration, in my view it would not be fair and just to grant leave for the complaint to proceed.

Order

1. Leave to proceed with the complaint of disability discrimination is refused.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 23 September 2020