Mohamed v State of NSW (NSW Police Force )

[2009] NSWADT 51

CITATION:	Mohamed & ors v State of NSW (NSW Police Force ) [2009] NSWADT 51
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANTS Rehab Mohamed Sanaa Mohamed Mounir Mohamed RESPONDENT State of New South Wales (NSW Police Force)
FILE NUMBER:	081046
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	25 November 2008
DATE OF DECISION:	5 March 2009
BEFORE:	Britton A - Deputy President
CATCHWORDS:	Race Discrimination-Goods and Services -Dismissal of complaint – conduct does not disclose contravention of Anti-Discrimination Act
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Police Act 1990
CASES CITED:	Australian Postal Commission v Dauw (1985) 3 NSWLR 565 Bassili v Star City Pty Ltd [2008] NSWADT 62 Board of Fire Commissioners v Ardouin (1961) 109 CLR 105 Bull v Attorney-General (NSW) (1913) 17 CLR 370Commissioner of Corrective Services v Dezfouli [2008] NSWADTAP 85 Commissioner of Police v Estate of Russell [2001] NSWSC Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16 Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors [2001] NSWSC 745 Contrera-Ortiz v Commissioner, NSW Department of Corrective Services [2008] NSWADT 308 Cran v State of New South Wales (2004) 62 NSWLR 95 Dayton v Woolworths Limited [2005] NSWADT 271 Director-General, Department of Community Services and Anor [2003] NSWSC 1241 Ella and Ors v. State of New South Wales (NSW Police) [2005] NSWADT 145 Fittler v New South Wales Electoral Commission and anor (No.2) [2008] NSWADT 116 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 Han v NSW Department of Health [2006] NSWADT 113 Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13 Hillman v Bankstown District Sports Club Ltd (No 2) [2007] NSWADT 179 Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238 IW v City of Perth (1997) 191 CLR 1 Commissioner of Police v The Estate of Edward John Russell & Ors [2002] NSWCA 272 Karekar v TAFE Commission of New South Wales [2000] NSWADT 187 Lin v American International Assurance Company (Australia) Pty Ltd [2005] NSWADT 59 Ravel v Plastral Fidence Pty Ltd [1999] NSWADT 18 Razaghi v Director General, Department of Health & anor [2005] NSWADT 202 Razaghi v Director-General, NSW Department of Health & anor [2002] NSWADT 4 Salama v Qantas Airways Ltd [2002] NSWADT 119 Shaikh v Police and Community Youth Clubs NSW Ltd & ors [2001] NSWADT 221 Sullivan v Moody (2001) 207 CLR 562 Sydney University Postgraduate Representative Association (SUPRA) & ors v Minister for Transport Services & ors [2006] NSWADT 83 Tame v State of New South Wales (2002) 211 CLR 317 Tannock v State of New South Wales [1999] NSWADT 73 Waters v Public Transport Corporation (1991) 173 CLR 349
REPRESENTATION:	APPLICANT No appearance RESPONDENT M Hutchings, barrister
ORDERS:	1 Respondent’s dismissal application is refused 2 Matter listed for further case conference on 18 March 2009 at 9.30 am 3 Leave is granted to the parties to attend by phone providing the Registrar is notified at least 24 hours in advance and a landline number provided.

1 Rehab, Sanaa and Mounir Mohamed have lodged a complaint with the President of the Anti-Discrimination Board alleging unlawful discrimination on the ground of race (ethno-religious) in the area of services. Following a neighbourhood dispute the Mohameds sought the assistance of the NSW Police Force. On their account, the Police neither properly investigated their allegations nor took steps to protect their family from further attacks.

2 The respondent, the State of NSW (Commissioner of NSW Police), has applied for the summary dismissal of the Mohameds’ complaints. The Commissioner contends that some of the activities about which the Mohameds complain, do not constitute a ‘service’ for the purpose of the Anti-Discrimination Act 1977 and, accordingly the Tribunal does not have jurisdiction in respect of that part of the complaint. He argues that the balance of the complaint should be dismissed as the factual assumptions on which it is based are untrue.

3 Detailed written submissions were provided on behalf of the Commissioner. The Mohameds elected not to provide any written submissions.

4 The Commissioner’s application was determined ‘on the papers’.

Power to dismiss a complaint

5 Section 102 of the Anti-Discrimination Act provides that the Tribunal may, at any stage in proceedings, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1)(a)(i) or (ii) or (b).

6 The Commissioner did not identify the statutory provision relied on to support the dismissal application. It would appear that in respect of the contention that the matters complained about do not constitute a service s 92(1)(a)(i) (misconceived or lacking in substance) and s 92(1)(a)(ii) (the conduct alleged if proven, would not disclose the contravention of a provision of the Act), might be relevant. It is unclear what provision is relied upon in relation to the application to dismiss the balance of the complaint.

7 The power to dismiss a complaint summarily under s 102 of the Anti-Discrimination Act (formerly, s 111(1)) has been the subject of extensive consideration by this Tribunal. A cautious approach to the exercise of the power has been adopted, emphasising that it should be exercised with exceptional caution and only if the circumstances clearly warrant such action. (See Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16; Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73; Tannock v State of New South Wales [1999] NSWADT 73; Karekar v TAFE Commission of New South Wales [2000] NSWADT 187; Shaikh v Police and Community Youth Clubs NSW Ltd & ors [2001] NSWADT 221; Salama v Qantas Airways Ltd [2002] NSWADT 119; Razaghi v Director-General, NSW Department of Health & anor [2002] NSWADT 4; Harding v Vice Chancellor, University of NSW [2003] NSWADT 74; Lin v American International Assurance Company (Australia) Pty Ltd [2005] NSWADT 59; Razaghi v Director General, Department of Health & anor [2005] NSWADT 202; Han v NSW Department of Health [2006] NSWADT 113; Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13; Hillman v Bankstown District Sports Club Ltd (No 2) [2007] NSWADT 179; Bassili v Star City Pty Ltd [2008] NSWADT 62.)

Background to complaint

8 The initiating complaint was made by Rehab Mohamed, on behalf of herself and her parents, Sanaa and Mounir Mohamed.

9 The Mohameds allege that in August 2007 the family home was attacked by children. The following day Mrs Sanaa Mohamed approached the mother of the children, a neighbour, and was physically attacked and subjected to a torrent of racial abuse. Ms Rehab Mohamed became concerned for her sisters who were playing at another neighbour’s house and when she went onto the street to bring them home, the neighbour who had assaulted her mother, subjected her to a torrent of racial abuse and chased her with a knife. Her parents then rang the Police.

10 They claim that the Police officers were rude and dismissive of their allegations. Among other things the Mohameds claim that the officers refused to take a statement from an eyewitness. Ms R Mohamed claims that when she told the Police that the neighbour had chased her with a knife she was informed ‘nothing could be done’.

11 Furthermore, they contend that when they subsequently complained to the Local Area Command about the alleged Police inaction, their complaint was ignored.

Relevant statutory provisions

12 It is necessary to outline a number of statutory provisions relevant to the Commissioner’s strike-out application.

13 Section 19 of the Anti-Discrimination Act provides that it is unlawful for a person who provides (whether or not for payment) services to discriminate against another person on the ground of race:

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

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

14 The term ‘services’ is defined by s 4 of the Act to include:

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

15 The Commissioner accepts that the NSW Police Force is a public authority for the purpose of paragraph (e) of the definition of services. (See Commissioner of Police v Estate of Russell [2001] NSWSC 745, per Sully J.)

16 The NSW Police Force is established under the Police Act 1990. Section 6 of that Act provides:

6 Mission and functions of NSW Police Force

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

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

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

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

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

(3) In this section:

police services includes:

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

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

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

(d) any other service prescribed by the regulations.

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

(5) ….

17 The meaning of the term ‘services’ in the context of anti-discrimination legislation has been considered by the High Court in Waters v Public Transport Corporation (1991) 173 CLR 349 and IW v City of Perth (1997) 191 CLR 1; by the Court Of Appeal in Commissioner of Police v The Estate of Edward John Russell & Ors [2002] NSWCA 272; by the NSW Supreme Court in Director-General, Department of Community Services and Anor [2003] NSWSC 1241 and Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors [2001] NSWSC 745; by an Appeal Panel of this Tribunal in Commissioner of Corrective Services v Dezfouli [2008] NSWADTAP 85; and by this Tribunal, differently constituted, in Ella and Ors v. State of New South Wales (NSW Police) [2005] NSWADT 145; Sydney University Postgraduate Representative Association (SUPRA) & ors v Minister for Transport Services & ors [2006] NSWADT 83; Contrera-Ortiz v Commissioner, NSW Department of Corrective Services [2008] NSWADT 308; Fittler v New South Wales Electoral Commission and anor (No.2) [2008] NSWADT 116.

18 In IW, among other questions the High Court considered, was whether the refusal of planning approval was a refusal to provide services in the context of the Equal Opportunity Act 1984 (WA). It is unnecessary to analyse that decision at length. It is, however, helpful to note some of the ways the court defined ‘services’ and also to note that the legislative context itself is of critical significance in reaching an appropriate definition or construction of a relevant statutory phrase.

19 Brennan and McHugh JJ said (at page 11):

The term “services” has a wide meaning. The Macquarie Dictionary relevantly defines it to include “an act of helpful activity”; “the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance”; “the organised system of apparatus, appliances, employees, etc., for supplying some accommodation required by the public”; “the supplying or the supplier of water, gas, or the like to the public”; and “the duty or work of public servants”. But wide as the definition is, in our opinion it is not capable of including a refusal to exercise the statutory discretion provided for by the Town Planning and Development Act 1928 (WA) and Clause 40 of the City of Perth City Planning Scheme to approve the use of premises for use other than as a shop.

20 Gummow J said (at page 41):

The term “service” and its variants are of wide and varied meaning. One speaks of the duties or work of a public servant, being a person serving the state or the community in a particular capacity. Service may also be rendered to an individual by conduct tending to the welfare or advantage of that person.

21 Kirby J said (at pages 69-70):

The Macquarie Dictionary defines “service“ as meaning “an act of helpful activity”; “the supplying ... of any ... activities, etc., required or demanded“; “the providing ... of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance“; “the organised system of apparatus, appliances, employees, etc., for supplying some accommodation required by the public”; “the supplying ... of water, gas, or the like to the public”; and “the performance of any duties or work for another”. The Oxford English Dictionary is to like effect: “work done to meet some general need”; “the action of serving, helping or benefiting“; “conduct tending to the welfare or advantage of another”. The concept of “services” is therefore an extremely wide one. It is by no means confined to the provision of tangible things. Its meaning is to be derived from the context. In a complaint of discrimination in relation to the provision or refusal of “services”, this Court has already emphasised the importance of identifying the relevant “services” in sufficiently concrete terms to enable the decision-maker to determine whether or not there has been the unlawful refusal to provide the “services” as alleged. Yet characterising the “service” in question can itself involve the acceptance of a definition which will effectively determine the complaint of discrimination according to whether a wide or narrow focus is adopted. The word should be given its meaning in the context, and for the purposes, of the legislation in question.

22 As the above passages reveal the High Court did not endorse a single definition of the term ‘services’. Nonetheless there is agreement that a critical first step in determining whether a person has been refused a service or provided a service on discriminatory terms is the proper characterisation of the relevant service. McHugh J in Waters emphasised (at pages 404–5) the need to identify the subject service with ‘sufficient precision’:

Accordingly, the goods or services which must be identified are those goods or services which are relevant to the complainant or any person or persons whom the complainant represents. Before there can be a finding of discrimination by a person in relation to the provision of goods or services, therefore, the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination. If a person is alleged to have refused to perform services, e.g., the services in question must be identified in sufficiently concrete terms to enable the Board to determine whether or not there has been a refusal to perform those services. What is a sufficiently precise identification of the service in one case may be too general in another. If the discrimination alleged was the refusal to allow impaired persons to travel on trams to St Kilda, it would be meaningless to identify the service provided as “the public transport system”. If, however, the discrimination alleged was the refusal to allow impaired persons to travel on trams generally, “transportation of members of the public by trams” might identify the service with sufficient precision to enable the relevant issues to be resolved.

23 That view was endorsed by Brennan CJ and McHugh J in IW (at pages 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.

24 The cases listed at [17] of these reasons reveals that the characterisation of the service the subject of the complaint is not always a straightforward task.

Characterisation of subject services

25 Before proceeding to consider the Commissioner’s submissions it is necessary to identify the ‘services’ or to use a neutral term, ‘activities’ the Mohameds allege were refused.

26 The Mohameds are self-represented in these proceedings. In their initiating complaint to the Board they did not particularise the alleged service/s they contend were refused; nor were they required by statute to do so. From their complaint it would appear that it centres on three main ‘events’.

27 First, the investigation into the Mohamed’s allegations of assault, racial abuse and damage to property. It is alleged that the Police failed to conduct a full and proper investigation into those allegations. While not expressly stated it seems that the Mohameds also contend that the Police failed to provide protection services to members of their family and their family home.

28 Second, the attendance of members of the Mohamed family at Blacktown police station. The Mohameds allege among other things that members of the family were refused medical and translation services.

29 Third, the review of their complaint undertaken by the NSW Police.

30 Following a case conference held on 23 July 2008, the Tribunal prepared a summary of the complaint. Under the heading, ‘Legal /factual issues to be determined’ was written:

What were the relevant services, that is, the services the applicants complain were refused or provided on discriminatory terms? Eg services by way of prevention and detection of crime: s 6(3)(a) and (b) of the Police Act 1990; services in relation to the investigation of and prosecution of a complaint.

31 In a document filed by the Mohameds headed ‘Legal /factual issues’, they in effect adopted that characterisation of the subject services.

A service – the arrest, charge or prosecution of persons?

32 The Commissioner contends that ‘it is plain’ from the Mohameds’ complaint that one of the services about which they complain was the failure to ‘arrest, charge or prosecute’ the neighbours the subject of their complaint.

33 Having examined the initiating complaint and the material filed to date by the Mohameds, it is not plain to me that the ‘arrest, charge or prosecution’ of their neighbours is identified as a subject service. While the document headed, ‘Legal and Factual Issues’ refers to the ‘prosecution of a complaint’, I do not read that as a reference to alleged assailants but rather to the Mohameds’ subsequent complaint about alleged Police inaction.

34 In their complaint to the Board the Mohameds alleged that the Police failed to:

Respond to their allegations for over three weeks

Protect members of their family

Take photos of the alleged damage to their house they believe was caused by the neighbours

Take a statement from independent eyewitnesses to an alleged assault

Take a statement from Samahe Mohamed who claimed that she witnessed the attack on her sister, Rehab

Provide translation services to Mrs Mohamed.

35 It may be that the Mohameds believe that had their allegations been properly investigated the alleged assailants would have been charged and prosecuted. However as I read the initiating complaint they are not complaining about the refusal of the Police to arrest, charge or prosecute the alleged assailants. Rather the focus of their complaint would appear to be the alleged failure to properly investigate their complaint.

36 Accordingly it is not necessary to determine this part of the Commissioner’s application.

A service – the prevention and detection of crime?

37 It is asserted for the Commissioner that an action brought under the Anti-Discrimination Act is akin to a tort and as police officers are generally not subject to tortious liability in respect of the conduct of their duties they could not be liable for any purported contravention of the Anti-Discrimination Act.

38 In support, the Commissioner referred to the comments of Sully J in Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors. [2001] NSWSC 745. In that decision his Honour quoted with approval the view expressed by McHugh JA in Australian Postal Commission v Dauw (1985) 3 NSWLR 565, that an action under the Anti-Discrimination Act is an action in tort. While acknowledging that McHugh JA’s opinion was obiter, Sully J believed it to be ‘persuasive authority’:

35 It seems to me, therefore, that a police officer who commits a contravention of the Anti-Discrimination Act commits thereby an actionable civil wrong in the nature of a tort.

39 The Commissioner referred to the established line of authority in Australia and England that police officers do not owe a duty of care to those who may be adversely affected by decisions or actions taken either in the course of a police investigation or at the prosecutorial stage (Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238; Cran v State of New South Wales (2004) 62 NSWLR 95; Tame v State of New South Wales (2002) 211 CLR 317; Sullivan v Moody (2001) 207 CLR 562).

40 He argued that there are compelling reasons of logic and good sense that operate to deny that members of the NSW Police Force engaged in tasks concerning the prevention and detection of crime are engaged in services to individual members of the public. He contends that the public policy considerations that underpin the preclusion of the recognition of a duty of care by police officers towards individual members of the public (as opposed to a duty to the general public to enforce the law), apply equally to the characterisation of police work as ‘a service’. Those public policy considerations were articulated in the seminal case of Hill v Chief Constable of West Yorkshire. The Commissioner relies on the following extract from the judgement given by Lord Keith in Hill (at page 244):

… But in my opinion there is another reason why an action for damages in negligence should not lie against the police in circumstances such as those of the present case, and that is public policy. … Potential existence of such liability may in many instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity. I do not, however, consider that this can be said of police activities. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further, it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes. While some such actions might involve allegations of a simple and straightforward types of failure, for example that a police officer negligently tripped and fell while pursuing a burglar, others would be likely to enter deeply into the general nature of a police investigation, as indeed the present action would seek to do. The manner of conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, for example as to which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy the available resources. Many such decisions would not be regarded by the courts as appropriate to be called in question, yet elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time, trouble and expense might be expected to have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. Closed investigations would require to be reopened and retraversed, not with the object of bringing any criminal to justice but to ascertain whether or not they had been competently conducted. …

41 In short, the Commissioner contends that the public policy doctrine that underpins a police officer’s immunity from liability in an action in negligence is, or should be, extended to the Anti-Discrimination Act. I do not agree with that analysis for these reasons.

42 First, it is no longer settled as asserted by the Commissioner, that a contravention of the Anti-Discrimination Act is akin to a tort. Spigelman CJ in Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 questioned that view (at pages 245-246):

…I should indicate that I do not share the opinion … that a complaint leading to an order of payment of ‘damages…by way of compensation’ under s 113(1)(b)(i) constitutes a ‘tort’ within the meaning of s 8 of the Law Reform (Vicarious Liability) Act.

43 The Chief Justice gave detailed reasons for that opinion (at pages 246-247):

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]).

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.

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.”

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.”

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

44 The Chief Justice’s comments were endorsed by Davies A-JA. Stein JA thought the issue best left to another day. His view was also approved by the Appeal Panel in Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 (at [33]):

[W]e believe that the views of Spigelman CJ … should be followed. The AD Act creates statutory rights and obligations. Section 113(1)(b)(i) [now s 108(2)(a)] of that Act vests the Tribunal with a statutory power to make compensatory orders following a finding that a complaint alleging a contravention of one of those statutory rights has been substantiated.

45 The Appeal Panel noted (at [26]) that the characterisation of a contravention of anti-discrimination legalisation as a tort had also been questioned by French J, in Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 264.

46 Second, even if accepted that a contravention of the Anti-Discrimination Act constitutes a tort, the authorities referred to by the Commissioner, do not support the proposition that a police officer is immune from liability in respect of all tortious acts committed in the course of his/her duties. Lord Keith in Hill commented (at page 241):

There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence. Instances where liability for negligence has been established are Knightley v Johns [1982] 1 All ER 851, [1982] 1 WLR 349 and Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985, [1985] 1 WLR 1242. Further, a police officer may be guilty of a criminal offence if he wilfully fails to perform a duty which he is bound to perform by common law or by statute: see R v Dytham [1979] 3 All ER 641, [1979] QB 722, where a constable was convicted of wilful neglect of duty because, being present at the scene of a violent assault resulting in the death of the victim, he had taken no steps to intervene.

47 Third, the authorities relied on by the Commissioner considered whether police officers in the course of carrying out their functions of containing crime owe a duty of care to individual members of the public. Lord Keith identified the question of law in this way (at page 241):

The question of law which is opened up by the case is whether the individual members of a police force, in the course of carrying out their functions of controlling and keeping down the incidence of crime, owe a duty of care to individual members of the public who may suffer injury to person or property through the activities of criminals, such as to result in liability in damages, on the ground of negligence, to anyone who suffers such injury by reason of breach of that duty.

48 Section 19 is concerned with services – their refusal or provision on discriminatory terms. It is not necessary to establish that the alleged discriminator owed a duty of care to the complainant. The argument put for the Commissioner implies that the concepts of a ‘duty of care’ and the ‘provision of services’ are analogous. I do not agree.

49 Fourth, the judgement of Sully J in Russell does not suggest that the police officers, whom he found had been providing services to the late Mr Russell, were immune from liability under the Anti-Discrimination Act on public policy grounds. While Sully J did not address whether police officers in investigating an alleged crime are providing services to the alleged victim/s (as opposed to the community at large), there is nothing in his judgement to suggest that the ‘common law doctrine’ on which the Commissioner relies, has been imported into the Anti-Discrimination Act.

50 Although not argued in these terms, the effect of the submissions put for the Commissioner is that the Police Force is exempt from the provisions of the Anti-Discrimination Act insofar as its operations are concerned. Counsel may have sought to avoid making such a bold claim but that is the logical consequence of the immunity claimed on behalf of the Commissioner.

51 The Anti-Discrimination Act, of course, does not expressly exempt the Commissioner from its terms whether in relation to police operations or any other activity of the Police Force. It is beneficial and protective. This has at least two consequences for its interpretation. First, any exemptions claimed will be construed narrowly. In Board of Fire Commissioners v Ardouin (1961) 109 CLR 105 the High Court considered an express provision in the Fire Brigades Act, 1909-1956 (N.S.W.) which purported to relieve the Fire Brigade of liability for damage caused in the course of Fire Brigade operations provided that the actions of the Fire Brigade were bona fide. Kitto J said (at page 116):

Section 46 operates, the, to derogate, in a manner potentially most serious, from the rights of individuals; and a presumption therefore arises that the Legislature, in enacting it, has chosen its words with complete precision, not intending that such an immunity, granted in the general interest but at the cost of individuals, should be carried further than a jealous interpretation will allow.

52 In that case, there was an express statutory exemption. The Commissioner in this case does not have that advantage but relies on an implied exemption.

53 The second consequence is that, insofar as there is any ambiguity, the beneficial provision or remedial provision will be interpreted beneficially: Bull v Attorney-General (NSW) (1913) 17 CLR 370; IW. It would be counter to the purpose of the Act if, in the absence of express terms, the Police Commissioner was exempted from its provisions.

54 Whether police officers in discharging their duty and functions in respect of the detection and investigation of a complaint or alleged crime are providing services to an individual cannot be answered in the abstract. The question to be asked is whether in the performance of those duties the Police were providing a service to the complainant(s). When Police officers investigate a report that a person has been attacked and their property damaged they are in my view providing a service to that person. It may be that concurrently they are providing a service to the community at large and exercising a statutory function but does not prevent ‘the activity’ from also being characterised as the provision of a service to the complainant. Like many activities, the detection of and investigation into a report of a crime is capable of more than one characterisation.

55 For all these reasons I do not accept the Commissioner’s argument that in the circumstances of this case the ‘prevention and detection’ of a crime, or put another way the investigation into the alleged unlawful conduct, does not constitute a service for the purpose of the Anti-Discrimination Act.

Internal investigation of the Mohameds’ complaint

56 The Commissioner contends that the Mohamed’s complaint to the Police about their alleged inaction was the subject of a ‘genuine and substantial’ internal investigation and therefore that part of their initiating complaint should be dismissed. The Mohameds do not agree. They claim their complaint was effectively ignored.

57 The Commissioner did not nominate the provision of the Act relied on to support this application.

58 In exercising the power to dismiss a complaint summarily it would be inappropriate to weigh up the competing evidence about any factual matters in dispute. In keeping with the long established approach taken by this Tribunal in determining whether this part of the complaint should be dismissed, the Mohameds’ evidence must be taken at its highest (see Prakash v Bobb Borg Enterprises Pty Ltd at [13]-[14]; Ravel v Plastral Fidence Pty Ltd [1999] NSWADT 18).

59 It may ultimately be that the Tribunal accepts the Commissioner’s account of the investigation and review of the Mohameds’ complaint. That is a matter for the evidence. It would be premature at this stage of the proceedings to determine that issue and dismiss this part of the claim at this stage of the proceedings.

Police student issue

60 The Commissioner disputes a claim made by Ms R Mohamed about her status as a student. It is unclear what part of the Mohameds’ complaint is sought to be dismissed on account of this alleged misrepresentation and what statutory provision is relied on in support.

61 For the reasons as given, it would be inappropriate in the context of a summary dismissal application to determine this apparent factual dispute.

Summary

62 For these reasons the Commissioner’s application is dismissed.

Orders

1. The Respondent’s dismissal application is refused

2. Matter listed for further case conference on 18 March 2009 at 9.30am

3. Leave is granted to the parties to attend by phone providing the Registrar is notified at least 24 hours in advance and a landline number provided.