Ella v State of New South Wales (NSW Police) (EOD)

[2006] NSWADTAP 5

Appeal Panel - Internal

CITATION:	Ella & Ors v State of New South Wales (NSW Police) (EOD) [2006] NSWADTAP 5
PARTIES:	APPELLANTS Timothy Ella Teresa Haines-Brown Latoya Brown Terrence Ella Kimberly Ella Max Harrison snr The estate of Anthony Harrison Ronald McLeod Beverly Johnson Ronald McLeod Jnr Lynette Johnson Margaret Johnson Audrey McLeod Lewis Ahoy Sharee Ahoy Stacy Ahoy Andrew Ahoy Lewis Ahoy Jnr Selina Brown Bardin Brown Haley Brown Joe Brown Jnr Kooncha Brown Carlene Harrison The estate of Edward Connelly Coral Harrison Steve Accaro Erin Harrison Martin Elaine Hanson RESPONDENT State of New South Wales (NSW Police)
FILE NUMBER:	059049
HEARING DATES:	9/12/2005
SUBMISSIONS CLOSED:	12/09/2005
DATE OF DECISION:	02/09/2006
BEFORE:	Chesterman M - ADCJ (Deputy President); Goode P - Judicial Member; Lowe A - Non Judicial Member
CATCHWORDS:	statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	041048
DATE OF DECISION UNDER APPEAL:	06/29/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Commonwealth Constitution
CASES CITED:	Commonwealth v Tasmania (the Tasmanian Dam Case) (1983) 158 CLR 1 Ella and ors v State of New South Wales (NSW Police) [2005] NSWADT 145 King-Ansell v Police [1979] 2 NZLR 531 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 Mandla v Dowell Lee [1983] 1 All ER 1062 Miller v Mieson (1991) EOC 92-341
REPRESENTATION:	APPELLANT J Keys, Barrister RESPONDENT K Nomchong, Barrister
ORDERS:	1. The appeal is dismissed; 2. The Tribunal’s order dated 29 June 2005 dismissing the Applicants’ complaint is affirmed

The nature of the Appellants’ case

1 In these proceedings, the 29 parties who are listed above as Appellants were also the Applicants. They alleged that the Respondent, NSW Police, unlawfully discriminated against them on the ground of race in the provision of police services during the period from November 1995 to February 1996. But their complaint that NSW Police breached the Anti-Discrimination Act 1977 (‘the Act’) in this way was summarily dismissed by the Tribunal in a decision delivered on 29 June 2005 (Ella and ors v State of New South Wales (NSW Police) [2005] NSWADT 145). The present judgment deals with their appeal against this decision.

2 The Applicants are members of an Aboriginal family group described in the Tribunal’s decision as ‘the Harrison/McLeod family’. In its decision at [1 – 2], the Tribunal summarised as follows the events giving rise to their complaint:-

1 From November 1995 to February 1996 there was an ongoing violent dispute between two Aboriginal family groups: the Harrison/McLeod family and the Campbell family. The Harrison/McLeod family group lived in an Aboriginal community on the south coast of New South Wales known as Wallaga Lake Koori Village (Wallaga Lake). Most members of the Campbell family lived at Bermagui on a property called “Foxhill”. The members of the Harrison/McLeod family allege that during this period members of the Campbell family threatened and assaulted many of them, barricaded the roadway with broken glass and 44 gallon drums containing fires, fire bombed their houses and cut their power supply. Members of both groups were assaulted leading to further retaliation. Police officers attended both Wallaga Lake and Foxhill on many occasions.

2 Several members of the Harrison/McLeod family complained to NSW Police about the inadequacy of their response during this time. On 4 March 1996 NSW Police implemented Operation Cosmic because of concerns relating to the escalation of violence at Wallaga Lake and the potential for a major armed confrontation to take place. The aim of the operation was to identify, arrest and charge those responsible for offences of violence and property damage in the Wallaga Lake and Bermagui areas. By early March 1996 the members of the Harrison/McLeod family who are the applicants in these proceedings, had left their houses at Wallaga Lake because of the continuing violence.

3 In its judgment at [18], the Tribunal described the ‘crux’ of the Applicants’ case as being ‘that during the period November 1995 to February 1996 Aboriginal people who were not residents of the Aboriginal community at Wallaga Lake were “the attackers” and that NSW Police treated the residents of Wallaga Lake less favourably than the non-residents’.

4 In paragraph 4 of their Statement of Claim, the Applicants summarised under twelve headings the acts and omissions (chiefly the latter) by NSW Police that they claimed to have constituted discrimination against them on grounds of race. This summary is reproduced in the Tribunal’s judgment at [18]. It is not necessary to set it out here.

The Tribunal’s judgment

5 Principles governing summary dismissal. As already mentioned, the Tribunal decided that the Applicants’ complaint should be summarily dismissed. It reached its decision under what was then s 111 of the Act and is now s 102. Section 111 provided that the Tribunal might dismiss a complaint, at any stage of an inquiry, if it was satisfied that the complaint was ‘frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained ...’

6 At [5], the Tribunal outlined in the following terms the principles governing an application to dismiss a complaint under s 111:-

In brief, a complaint should only be summarily dismissed after exercising exceptional caution and giving the applicant every reasonable opportunity to set out the basis of the complaint and to tender the evidence that supports that complaint. The Tribunal is obliged to accept the applicants’ evidence at its highest before determining whether the complaints should be dismissed. The onus is on NSW Police to establish that the complaints should be dismissed.

7 At [6], the Tribunal said: ‘The phrase “for any other reason” is not limited in any way by the preceding reasons for dismissal and can relate to matters such as the failure to diligently prosecute a complaint.’

8 Relevant events between the disputes that gave rise to the complaint and the commencement of Tribunal proceedings. In its judgment at [3], the Tribunal noted two matters that it later held to have played a role in its decision that the Applicants’ claim should be summarily dismissed.

9 The first was that on 12 December 1995, a complaint about the conduct of NSW Police during the dispute between the Harrison/McLeod family and the Campbell family was made to the Ombudsman in terms similar to those subsequently employed by the Applicants in the present proceedings. As outlined by the Tribunal at [53 – 56], the response of NSW Police was to conduct an investigation, in consequence of which it acknowledged that there had been shortcomings in its practices and procedures. The Ombudsman’s determination, made on 23 January 1997, was that various steps taken by NSW Police and by the Office of the Ombudsman constituted a satisfactory response to the complaint. The Tribunal stated also (at [56]) that ‘the Ombudsman’s recommendations’ (which were not particularised) had been implemented by NSW Police.

10 The second of these matters was that more than six years had elapsed between the date (19 September 1997) when members of the Harrison/McLeod family filed their complaint of race discrimination by NSW Police with the President of the Anti-Discrimination Board and the date (10 March 2004) when the President referred the complaint to the Tribunal. At [57], the Tribunal added that ‘apparently because of a lack of resources’, the President did not advise NSW Police of the complaint until June 2001. The President formally accepted the complaint, despite its having been lodged out of time, on 20 March 2003.

11 Later in the judgment, at [57 – 59], the Tribunal referred to evidence from NSW Police that on account of this substantial delay it would be very difficult and expensive for this body to respond effectively to many of the Applicants’ allegations. It noted the following reasons: (a) that over 45 police officers, some of whom were no longer employed by NSW Police, would have to be identified and located; (b) that those officers who were still employed by NSW Police were widely dispersed across New South Wales; (c) that the recollections of the relevant events by those officers who had not provided statements to the Ombudsman would be extremely unreliable; and (d) that a large number of potentially relevant documents, including diaries, occurrence pads and briefing notes, had been destroyed or could not be found.

12 The question whether ’services’ by NSW Police were involved. The Tribunal recorded at [18] its understanding that the Applicants were alleging contraventions by NSW Police of s 19 of the Act. This section reads as follows:-

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.

13 At [19 – 21] and [37], the Tribunal reached the conclusion that some, though not all, of the alleged acts and omissions of NSW Police that were listed in paragraph 4 of the Applicants’ Statement of Claim could, if proved, constitute refusal of a ‘service’, or the provision of a ‘service’ on unfavourable terms, to the Applicants. It quoted authority to the effect that ‘individual police officers, when preventing and detecting crime’, are providing a service, not only to the community as a whole’ but also to ‘the individual or individuals who have asked them to perform those functions or who will be protected by the performance of those functions’ (see the judgment at [21]).

14 The basis of the Applicants’ claim of race discrimination. At [22 – 23], the Tribunal outlined as follows the concept of race discrimination under the Act:-

22 The definition of race discrimination is set out in s 7. The applicants relied on “direct” discrimination under s 7(1)(a). Section 7(2), the “characteristics extension” is also potentially relevant.
(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,

...

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

23 “Race” is defined in s 4 to include “colour, nationality, descent and ethnic, ethno-religious or national origin.” Aboriginality is a race. Under s 4A, if an act is done for 2 or more reasons, it is sufficient if one of those reasons constitutes unlawful discrimination even if it is not the dominant or a substantial reason for doing the act.

15 At [28], the Tribunal quoted an allegation in the Applicant’s Points of Claim that NSW Police had unlawfully discriminated against them ‘on the ground of their Aboriginal race and their residence in an Aboriginal community (known as the Wallaga Lake Koori Village)’. The Tribunal went on to say that Ms Keys, counsel for the Applicants, had agreed ‘that it was not the applicants’ Aboriginality by itself that was the ground for discrimination but that factor together with their residence in an Aboriginal community’. It indicated that it understood Ms Keys’ submission to be that ‘because the applicants would not be residing in an Aboriginal community if they were not Aboriginal, their residence in that community is a ground of discrimination’.

16 At [29], the Tribunal made the following observations on this aspect of the Applicants’ case:-

Ms Keys’ submission appears to involve an assertion that the applicants were discriminated against on the ground of a characteristic that appertains generally to Aboriginal people, that is that they live in an Aboriginal community. Section 7(2) extends the ground of discrimination to cover a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race. While there was no mention of discrimination on the ground of “characteristics” in the Points of Claim, the Tribunal raised that possibility in the course of the proceedings. Ms Keys tentatively suggested that living in an Aboriginal community was a characteristic “that is generally imputed to” Aboriginal people and that NSW Police discriminated against the applicants on that basis. We are not satisfied that living in an Aboriginal community is a characteristic that is generally imputed to Aboriginal people. There was no evidence to support such an assertion and it is not something about which we can take judicial notice.

17 At [30], the Tribunal discussed and rejected an alternative submission by Ms Keys relying on the ‘characteristics extension’ in s 7(2) of the Act. This was that since ‘resolving disputes in a traditional way is a characteristic that is generally imputed to Aboriginal people’, NSW Police had discriminated against the Applicants through allowing the warring parties to engage in fist fights in order to attempt, unsuccessfully, to resolve their dispute. The Tribunal held that there was no evidence to support the underlying proposition that resolving disputes in a traditional way is a characteristic generally imputed to Aboriginal people and that it was not a matter of which the Tribunal could take judicial notice.

18 At [32], the Tribunal reached the following important conclusion as to the form of race discrimination that the Applicants should be deemed to have alleged in their complaint:-

The applicants’ reliance on Aboriginality in combination with residence in an Aboriginal community as the ground of discrimination is misconceived. An alternative is that at least one of the reasons for the conduct was the applicants’ Aboriginality or, in the case of the non-Aboriginal applicant, the Aboriginality of his relative or associate. As the conduct was not based on a characteristic that appertains generally to Aboriginal people or on a characteristic that is generally imputed to Aboriginal people, s 7(2) does not apply. Consequently we have construed the complaints to be on the ground of the applicants’ Aboriginality or, in the case of Mr Accaro, on the ground of the Aboriginality of his relative or associate.

19 The appropriate comparator. At [33 – 34], the Tribunal pointed out that, on this view of the Applicants’ claim, s 7 of the Act required that the treatment afforded to the Applicants should be compared with ‘the treatment that was or would be afforded to people who are not Aboriginal in the same circumstances, or in circumstances which are not materially different’. It then indicated that ‘only two of the actual comparators put forward by Ms Keys were non-Aboriginal’. It said that there was no evidence regarding the police treatment of one of these. For reasons that we need not set out here, it held that the other did not provide a satisfactory basis for a finding of discrimination. It then stated, at [34]:-

In the absence of any actual comparator, the Tribunal can only assume that the applicants’ case is based on a comparison with the way NSW Police would have treated a hypothetical non-Aboriginal person or people in the same circumstances, or in circumstances which are not materially different.

20 Causation. In a brief paragraph ([35]), the Tribunal referred to a submission by NSW Police that the Applicants had ‘failed to provide evidence that one of the reasons for the way NSW Police treated the applicants was their Aboriginality’.

21 General observations on the allegations and evidence put forward by the Applicants. After having reviewed (at [38 – 50]) the evidence tendered by the Applicants in support of their allegations of conduct amounting to race discrimination, the Tribunal summarised, at [51], what it called ‘the factual and legal shortcomings of the complaint’. For present purposes, it is sufficient to note three aspects of this summary.

22 First and most significantly, the Tribunal held, with reference to a number of the Applicants’ specific allegations regarding the conduct of NSW Police, that there was no evidence as to how NSW Police would or might have treated non-Aboriginal people in the same or similar circumstances. In so far as any evidence was tendered by way of comparison, it related to the way in which Aboriginal people not living in an Aboriginal community would or might have been treated. This was not, the Tribunal said, ‘the correct basis for a comparison under the Act’.

23 Secondly, with reference to an allegation by the Applicants that NSW Police had taken two to three weeks to charge offenders for an assault on a member of the Harrison/McLeod family, the Tribunal observed that there was ‘no evidence that any delay was because of the applicants’ Aboriginality’.

24 Thirdly, the Tribunal held that the Applicants’ allegations under four of the twelve heads in their Statement of Claim (see [4] above) had not been sufficiently particularised and/or were too vague to constitute discrimination.

25 The grounds for the Tribunal’s order for summary dismissal. At [52], the Tribunal explained in the following terms its reasons for holding that the Applicants’ complaint should be dismissed under s 111 of the Act ‘for any other reason’:-

Despite the fact that the applicants were legally represented, many of the allegations either lack substance or are misconceived. The most fundamental misconception is that the conduct is on the ground of ( sic ) the applicants’ residence in an Aboriginal community. That misconception has led to the applicants comparing the manner in which police officers responded to their concerns with the manner in which they responded to the concerns of members of the Campbell family. The appropriate comparison is how NSW Police treated or would have treated non-Aboriginal people in the same or similar circumstances. These deficiencies, by themselves, were not sufficient to persuade us that we should dismiss the entire complaint. However, there are two other reasons, apart from the evidentiary and legal weaknesses discussed above, which convince us that the complaint should be dismissed “for any other reason.” The first is that NSW Police and the Ombudsman have dealt with the substance of most of the complaint and the second is that NSW Police would be significantly prejudiced if required to respond to incidents that are now more than nine years old.

26 We will quote one further extract, paragraph [59], from the Tribunal’s judgment:-

The evidence demonstrates to us that NSW Police could have done much more than they did to lessen or prevent the tragic events that took place at Wallaga Lake during 1995 and 1996. Many of the applicants felt extremely frustrated that police did not respond as quickly as they had hoped to their calls for help. They were also outraged by the apparent reluctance of police to obtain statements and to thoroughly investigate alleged wrongdoing. Those concerns may well be justified, but the manner in which the case has been presented and other circumstances beyond the control of the applicants have persuaded us that the complaint should be dismissed “for any other reason.”

27 In our discussion of the arguments put to us in the appeal, we will deal separately with each of these grounds on which the Tribunal based its decision.

The alleged ground of discrimination and the suggested ‘comparator’

28 On our reading of the Tribunal’s judgment, the most significant factor underlying its decision against the Applicants was their reliance on a ground of discrimination – namely, Aboriginality coupled with residence within an Aboriginal community – that did not fall within any category recognised by the Act. This reliance, the Tribunal said, led the Applicants to put forward an inappropriate comparator – namely, the nature of the services that NSW Police provided to other Aboriginal people (specifically, the Campbell family) who did not reside in an Aboriginal community. They failed, furthermore, to tender any significant evidence tending to prove discrimination on what was actually a valid ground under the Act, viz, their Aboriginality.

29 Ms Keys, counsel for the Applicants in the appeal, argued that in this specific context the Tribunal erred in two respects.

30 First, it held incorrectly that residence in an Aboriginal community was not within the meaning of ‘race’ as defined in s 4 of the Act. It erred in this regard through not taking sufficient account of authorities governing the interpretation of the phrase ‘ethnic origin’ within the definition of ‘race’ contained in s 4 of the Act. In consequence, it did not treat the members of the Harrison/McLeod family, along with other residents of the Aboriginal community at Wallaga Lake, as constituting a distinct ‘race’.

31 Secondly, the Tribunal, in Ms Keys’ submission, incorrectly characterised the comparator that the Applicants had put forward. In their Statement of Claim at paragraph 4, she said, the Applicants had in fact compared the services provided to them by NSW Police with the police services that would, in like circumstances, have been ‘provided to persons of a different race who did not reside in an Aboriginal community’. She suggested, as an alternative formulation, that the comparator relied upon was the police services that would have been provided to ‘the wider community’. It was therefore incorrect, she contended, for the Tribunal to claim that the Applicants simply sought to show that they had received less favourable treatment from NSW Police than had been accorded to another group of Aboriginal people, namely, the Campbell family.

32 The alleged ground of discrimination. In support of the first of these submissions, Ms Keys cited three authorities: King-Ansell v Police [1979] 2 NZLR 531, Mandla v Dowell Lee [1983] 1 All ER 1062 and Miller v Mieson (1991) EOC 92-341. The general tenor of all of them was to indicate that the term ‘race’ in anti-discrimination legislation, at least when defined to include ‘ethnic origin’, should not be viewed ‘scientifically’, taking only genetic considerations into account, but should also reflect group identities based on factors such as shared ancestry, attitudes and traditions.

33 In King-Ansell v Police, the New Zealand Court of Appeal, constituted by Richmond P and Woodhouse and Richardson JJ, held that Jews in New Zealand constituted a group with common ethnic origins for the purposes of legislation prohibiting vilification of any group of persons ‘on the ground of the colour, race or ethnic or national origins of that group of person’. The Court pointed out that the Oxford English Dictionary, in its 1897 edition, defined ‘ethnic’ relatively narrowly, as ‘pertaining to race; peculiar to a race or nation; ethnological’. But in the 1972 Supplement, the following phrase was added: ‘Also pertaining to or having common racial, cultural, religious or linguistic characteristics, esp designating a racial or other group within a larger system’. Each of their Honours held that a broader definition along these general lines, though not in these precise terms, was appropriate for the term ‘ethnic’ in the legislation. They rejected a definition based solely on genetic factors, pointing out that it would be unworkable in present-day society.

34 At 538, Woodhouse J said:-

The distinguishing features of an ethnic group or of the ethnic origins of a group would usually depend upon a combination, present together, of characteristics of the kind indicated in the Supplement.

35 At 542, Richardson J, after stating that ‘race’, along with the other words in the legislation, was ‘clearly used in its popular meaning’, said:-

The real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins. That must be based on a belief shared by members of the group.

36 At 543, his Honour said:-

… a group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms is a common racial stock. It is that combination which gives them an historically determined social identity in their own eyes and in the eyes of those outside the group. They have a distinct social identity based not simply on group cohesion and solidarity but also on their belief as to their historical antecedents.

37 In Mandla v Dowell Lee [1983] 1 All ER 1062, the House of Lords also addressed the interpretation of ‘ethnic origins’ in racial discrimination legislation. Lord Fraser, with whom the other members of the House agreed, adopted and applied the reasoning of the New Zealand Court of Appeal in King-Ansell v Police. At 1068, he quoted the three passages that we have just reproduced, adding that the third of them ‘sums up in a way on which I could not hope to improve the views which I have been endeavouring to express’.

38 In Miller v Mieson (1991) EOC 92-341 at 78379, the Equal Opportunity Board of Victoria treated Mandla v Dowell Lee as ‘persuasive authority’ on the interpretation of the term ‘race’ in Victorian equal opportunity legislation.

39 Relying on these authorities, Ms Keys argued that the Tribunal should have held that the Applicants, along with other members of the Aboriginal community resident at Wallaga Lake, constituted a group possessing a common ethnic origin, and therefore a ‘race’, within ss 4 and 7 of the Act. It should therefore not have held to be ‘misconceived’ their claim of unlawful discrimination ‘on the ground of their Aboriginal race and their residence in an Aboriginal community’, as formulated in paragraph 4 of their Statement of Claim.

40 In further support of this line of argument, Ms Keys referred us to the Applicants’ allegation, in paragraph 5 of the Statement of Claim, that as a result of the unlawful discrimination they had suffered ‘loss of cultural relationship to and connection with the land at Wallaga Lake’ and ‘loss of family and community association at Wallga Lake Koori Village’. She referred us also to the following passages in the statement of Ms Kooncha Brown, one of the Applicants:-

I have not returned to Wallaga Lake Koori Village since [20 November 1995], except to attend my Grandmother’s funeral…

I have lost my association and spiritual connection with Wallaga Lake as my traditional “Home” land and the place about which I was taught traditional knowledge of sacred and secret sites within our traditional land…

I was charged with continuing the sharing of knowledge and culture within the indigenous community and of educating the wider community about our traditions. Because I no longer live in Wallaga Lake Koori Village, or even feel safe enough to return to my home, I have lost the opportunity to continue my learning and channelling secret and sacred knowledge to the younger generation (that is, passing on the culture)…

41 In response to this line of argument, Ms Nomchong, counsel for the Respondent, pointed out first that at the Tribunal hearing the Applicants had not put forward any contention that the residents of the Aboriginal community at Wallaga Lake constituted an ‘ethnic sub-group’ falling within the statutory definition of ‘race’. Equally, there had been no mention of any of the cases that we have just discussed. Instead, the submissions raised by Ms Keys, in so far as they could be clearly ascertained, were along the lines described by the Tribunal in its judgment at [28] (see [15] above). The closest that they came to the line of reasoning now advanced was to allege unlawful discrimination on the ground of Aboriginality coupled with residence in an Aboriginal community. The Tribunal had in fact indicated during the hearing that it was difficult to discern precisely how the alleged ground of discrimination was formulated.

42 Ms Nomchong argued also that the evidence tendered by the Applicants fell far short of establishing that residents of the Aboriginal community at Wallaga Lake satisfied the criteria for a common ethnic origin laid down in the judgments in King-Ansell v Police. Assertions in the Statement of Claim and in the witness statement of one of the Applicants were quite insufficient for this purpose. There was no expert evidence to support this claim and it was not a matter of which the Tribunal could take judicial notice.

43 In our opinion, some, though not all, of Ms Keys’ arguments have merit.

44 In the first place, we consider that, as Ms Keys maintained and Ms Nomchong did not expressly dispute, the line of authority stemming from King-Ansell v Police has the potential to support a contention, in appropriate circumstances, that the Aboriginal residents of an Aboriginal community constitute a ‘race’ as defined in s 4 of the Act. While, as the Tribunal stated at [23], ‘Aboriginality’ is a race’, it does not in any way follow that no subgroup of Aboriginal people, such as the Aboriginal residents of an Aboriginal community, could ever be shown to be a ‘race’. To hold otherwise is to ignore completely the tribal and other differences, which are well recognised, between different groups of Aboriginal people in Australia.

45 If the authorities which we have already outlined do not sufficiently establish this general proposition, it is, we feel, put beyond doubt by two extracts from the judgment of Deane J in Commonwealth v Tasmania (the Tasmanian Dam Case) (1983) 158 CLR 1. The High Court there was dealing there with the meaning of ‘race’ in s 51(xxvi) of the Commonwealth Constitution. But there is no reason to treat his Honour’s observations as irrelevant to the interpretation of ‘race’ in other legislative contexts in Australia, irrespective of whether that term is or is not defined to include ‘ethnic origin’.

46 At 273-274, Deane J said:

It is unnecessary, for the purposes of the present case, to consider the meaning to be given to the phrase “people of any race” in s. 51(xxvi). Plainly, the words have a wide and non-technical meaning: see e.g., King-Ansell v Police ; Mandla v Dowell Lee . The phrase is, in my view, apposite to refer to all Australian Aboriginals collectively… The phrase is also apposite to refer to any identifiable racial sub-group among Australian Aboriginals. By “Australian Aboriginal”, I mean, in accordance with what I understand to be the conventional meaning of that term, a person of Aboriginal descent, albeit mixed, who identifies himself as such and who is recognized by the Aboriginal community as an Aboriginal.

47 At 276, his Honour said (echoing a passage in the judgment of Brennan J at 244):-

The reference to “people of any race” includes all that goes to make up the personality and identity of the people as a race: spirit, belief, knowledge, tradition and cultural and spiritual heritage.

48 To this extent we accept the submissions made by Ms Keys. But as Ms Nomchong pointed out, submissions along these lines were not put to the Tribunal. Instead, it was asked to endorse the different proposition that discrimination on the ground of Aboriginality coupled with residence in an Aboriginal community was a species of discrimination rendered unlawful by the Act. In the appeal, Ms Keys did not advance any argument sufficient to persuade us that the Tribunal erred in rejecting this proposition. In our opinion, it was entirely correct in so doing.

49 Furthermore, we consider that the material put forward on the Applicants’ behalf to support their argument that the Aboriginal residents of the Aboriginal community at Wallaga Lake constituted an ethnic sub-group and therefore a ‘race’ within the statutory definition was, as Ms Nomchong submitted, clearly insufficient. We also agree with her that this was not a matter of which the Tribunal could take judicial notice.

50 In so holding, we do not doubt Ms Kooncha Brown’s account of her particular role within this community and of her distress at being forced to leave it, or that some or all of the Applicants may well have suffered loss of cultural relationship to, and connection with, the land at Wallaga Lake, and also loss of family and community association. But this evidence does not of itself establish that the Aboriginal residents of this particular community formed an identifiable group possessing (to quote the words of Richardson J in King-Ansell v Police) ‘a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past’. We suspect that, as Ms Nomchong submitted, expert evidence might be required to prove such a matter. But we do not have to rule on this issue.

51 For these reasons, we cannot uphold the Applicants’ argument that the Tribunal erred, either (a) through failing to treat the members of the Harrison/McLeod family, along with other residents of the Aboriginal community at Wallaga Lake, as constituting a distinct ‘race’, or (b) through refusing to endorse the general proposition that discrimination on the ground of Aboriginality coupled with residence in an Aboriginal community is a species of discrimination rendered unlawful by the Act. The approach actually adopted by the Tribunal – that is, to treat Aboriginality alone as the alleged ground of race discrimination and to examine the evidence tendered by the Applicants in order to determine whether it would or might support a case based on this ground – was in our view correct.

52 The suggested comparator. In her submissions on the appeal, Ms Keys argued that the comparator invoked by the Applicants at the Tribunal hearing was either (a) the police services that would, in the relevant circumstances, have been ‘provided to persons of a different race who did not reside in an Aboriginal community’, or (b) the police services that would have been provided to ‘the wider community’. She based this argument on a segment of paragraph 4 of the Statement of Claim (see [31] above) and on some passages in the transcript of her oral submissions to the Tribunal.

53 Ms Keys also indicated to us that the evidence on which she relied, both in the Tribunal and on appeal, to show what the nature and scale of police services answering either of these descriptions would be was the evidence regarding ‘Operation Cosmic’. This police operation commenced in March 1996, after the period during which, according to the Applicants, the services provided to them by NSW Police were manifestly inadequate. It comprised a series of measures including the arrest and charging of a number of members of the Harrison/McLeod family for violent assaults allegedly committed by them as retaliation for earlier attacks upon them by members of the Campbell family.

54 We agree with an observation by Ms Nomchong that these aspects of the Applicants’ case were not clearly articulated to the Tribunal. But we accept that the Applicants sufficiently suggested to the Tribunal that an appropriate comparator could be either (a) the police services that would, in the relevant circumstances, be ‘provided to persons of a different race who did not reside in an Aboriginal community’, or (b) the police services that would have been provided to ‘the wider community’.

55 This acceptance by us of a submission made by Ms Keys is not enough, however, to resolve a major problem confronting this part of her argument. This problem is that the Tribunal, for reasons set out in its judgment at [33 – 34] and [51] (see [19, 22] above), did not believe that the evidence regarding Operation Cosmic, or any other evidence tendered by the Applicants, sufficiently showed what might be the scale and nature of police services falling within either of the two limbs of the suggested comparator. As it said at [51], this evidence related instead to the way in which Aboriginal people not living in an Aboriginal community would or might have been treated. It went little or no further than to show that in conducting Operation Cosmic the police rendered services to one group of Aboriginal people – the Campbell family – that were more favourable than those previously rendered to another group of Aboriginal people – i.e., the Applicants and other members of the Harrison/McLeod family.

56 Given that, for reasons that we have just explained, the Tribunal treated Aboriginality as the only valid ground of race discrimination that the Applicants could invoke, it was bound to hold that evidence confined to this specific issue was insufficient for the Applicants’ purposes. Taking this evidence at its highest and making allowance – as Ms Keys submitted that we should – for the fact that some of the allegations in the Statement of Claim were expressed in general terms and would at a full hearing be particularised, we agree with the Tribunal’s conclusion.

The steps taken by NSW Police and the Ombudsman to deal with the Applicants’ complaints

57 As indicated in its judgment at [52], the Tribunal’s decision to dismiss the Applicant’s complaint was based in part on a finding that ‘NSW Police and the Ombudsman have dealt with the substance of most of the complaint’. We have outlined above at [9] the investigatory and remedial measures that these two authorities adopted during the period from December 1995 to January 1997

58 In the appeal, the only observation made by the Applicants on this aspect of the Tribunal’s judgment was that it should have taken account of a letter from them to the President of the Anti-Discrimination Board in a letter dated 21 October 2003. This letter significantly criticised the quality of the investigation by NSW Police.

59 If in deciding to dismiss the Applicants’ complaint the Tribunal had relied to any substantial degree on this particular ground, there would in our view be cause for concern. The redress sought by the Applicants in their Statement of Claim was an award of damages. The investigatory and remedial measures to which the Tribunal referred may have brought some comfort to them – even allowing for the criticisms expressed in their letter to the President – but could not be regarded as a substitute for this form of redress. Nothing in the Tribunal’s judgment suggests that it took this particular consideration into account.

60 We do not believe, however, that the Tribunal placed sufficient emphasis on this aspect of the case to warrant treating this omission as a ground for overturning its decision. That decision was, we believe, sufficiently supported by the major ground that we have already discussed and the third and final ground, with which we will now deal.

Prejudice resulting from delay by the Anti-Discrimination Board

61 As summarised by the Tribunal in its judgment at [52], this ground was that ‘NSW Police would be significantly prejudiced if required to respond to incidents that are now more than nine years old’. As spelt out more fully at [58], the prejudice comprised the difficulties and expense that would be suffered from identifying and locating witnesses, the unreliability of the testimony that some at least of them would provide and the destruction or loss of relevant documents.

62 Ms Keys sought to challenge this aspect of the Tribunal’s judgment by arguing that the decision of the President of the Anti-Discrimination Board, made on 20 March 2003, to accept the Applicants’ complaint even though it had been lodged out of time constituted res judicata, or raised an issue estoppel, precluding NSW Police from relying on the substantial lapse of time as a ground of opposing the claim. There is, in our view, no merit at all in this argument. It is enough merely to say that the President’s non-judicial decision relieving the Applicants of the adverse consequences of their failure to observe a statutory limitation period could not have any impact of this nature on the Tribunal’s decision regarding the prejudice sustained by a very substantial delay over a later period of time in bringing their claim to the point of trial.

63 Ms Keys also argued that NSW Police, by not challenging in the Supreme Court the President’s decision to accept the claim out of time, was bound by principles of promissory estoppel not to raise the issue of delay in opposing the claim. For similar reasons, this submission is without merit.

64 The third argument raised by Ms Keys in this context was that sufficient evidence would be available if this matter went to trial because (a) detailed recollection by witnesses would not be required and (b) many of the necessary documents had been prepared for the investigations conducted by NSW Police and by the Ombudsman. Our view on this matter is however that the Tribunal adequately took this consideration into account.

65 Finally, Ms Keys submitted that the Tribunal erred in not taking proper account of the prejudice occasioned to the Applicants by the delay. We would agree that the Tribunal did not mention this matter. But for reasons outlined in the next paragraph, we do not think that this omission assists the Applicants in their appeal.

66 It appears to us that, viewed in the light of well-known authorities governing the granting of leave to institute proceedings after the expiry of a statutory period of limitations, this is a case where the lapse of a very substantial period – now more than ten years – between the relevant events and the holding of any trial has created both presumptive and actual prejudice for both parties. There is a serious risk that a fair trial could not take place. Not only the Respondent’s witnesses but also those on whom the Applicants would rely are likely to have incomplete or inaccurate recollections. Documentary evidence on both sides is likely to be lacking. In the final paragraphs [64 – 67] of its judgment, the Tribunal in fact observed that throughout 2004 the Applicants appeared to be experiencing significant difficulties in accumulating the evidence that it needed to substantiate their claim.

67 For these reasons, we see no error in the way in which the Tribunal treated the prejudice occasioned by a substantial lapse of time as a matter to be taken into account, though not determinative, in deciding to dismiss the Applicants’ claim under s 111.

68 Lastly under this heading, we wish to express our grave concern that this element of prejudice should have been chiefly attributable to the long period of time – more than six years – between the Applicants’ complaint to the Anti-Discrimination Board and the Board’s referral of it to the Tribunal. It is hard to imagine that a delay of such length was fully justified. In the present case, the delay was not enough of itself to warrant dismissal of the complaint. But it is clear, both from this judgment and from that of the Tribunal, that in another case a similar delay might alone have this effect, thereby depriving the complainant of a legitimate expectation that his or her complaint will, if necessary, proceed to trial.

Leave to extend the appeal to the merits

69 So far in these reasons we have dealt with submissions on the Applicants’ behalf that the Tribunal erred in law. In our judgment, none of these submissions has been made out.

70 The Applicants, in their Notice of Appeal, also sought leave under s 113(2)(b) of the Administrative Decisions Tribunal Act 1997 for the appeal to extend to the merits. The grounds advanced were that the appeal raised questions of law about s 7(1)(a) of the Act, including whether residence in an Aboriginal community constituted ‘race’, and that full consideration of this question, which had not previously been determined judicially, would be provided by a review of the merits of the Tribunal’s decision.

71 The Court of Appeal’s recent decision in Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456, handed down after the hearing of this appeal, establishes that, contrary to the tenor of previous authority, leave to extend to the merits may be granted even though no error of law, or indeed no arguable error of law, has been identified in the decision under appeal.

72 We consider however that no sufficient grounds for granting leave have been put forward. We have in fact addressed the question formulated in the Notice of Appeal in our discussion of the alleged errors of law. It is, as the Notice states, a question of law, and we do not see how a review of the merits of the case would advance this discussion. If on a review of the merits the Applicants sought to tender further evidence in support of Ms Key’s argument that the residents of the Aboriginal community in 1995-96 constituted an subgroup of Aboriginal people possessing common ethnic origins and therefore a ‘race’, the difficulties already identified in conducting a fair trial of this matter after such a long delay since the relevant events would be further compounded. No other ground for granting leave is apparent to us.

Our orders

73 As requested in the written submissions provided by Ms Nomchong, our orders are that the appeal is dismissed and the Tribunal’s order is affirmed.