Paramasivam v State of New South Wales (No.3)
[2008] FMCA 647
•2 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PARAMASIVAM v STATE OF NEW SOUTH WALES (No.3) | [2008] FMCA 647 |
| HUMAN RIGHTS – Discrimination on the ground of race, colour, or national or ethnic origin – applicant arrested for trespass at University – neither arrests nor other police conduct influenced by applicant’s race – application dismissed. |
| Evidence Act 1995 (Cth), s.135 Federal Magistrates Court Rules 2001 (Cth), r.15.29(1) Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO Inclosed Lands Protection Act 1901 (NSW), s.4 Racial Discrimination Act 1975 (Cth), ss.9, 11, 13 |
| Commonwealth v McEvoy (1999) 94 FCR 341 Paramasivam v State of New South Wales (No.2) [2007] FMCA 1033 Paramasivam v University of New South Wales [2006] NSWSC 1189 Paramasivam v University of New South Wales [2007] FCA 875 Paramasivam v University of New South Wales [2007] FCAFC 176 Rainsford v State of Victoria [2007] FCA 1059 Rainsford v State of Victoria [2008] FCAFC 31 |
| Applicant: | GAJA LAKSHMI PARAMASIVAM |
| Respondent: | STATE OF NEW SOUTH WALES |
| File Number: | SYG 584 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 22-24 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondent: | Mr P Ginters |
| Solicitors for the Respondent: | Crown Solicitor |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 584 of 2007
| GAJA LAKSHMI PARAMASIVAM |
Applicant
And
| STATE OF NEW SOUTH WALES |
Respondent
REASONS FOR JUDGMENT
Mrs Paramasivam was born in Sri Lanka, and has Sri Lankan ethnicity, but she renounced her Sri Lankan nationality when she became an Australian citizen. She was employed as an accountant during 1998 and 1999 by the University of New South Wales, and believes that her capacity to assist its administration in subsequent years was not properly appreciated. In September 2003, she wished to pursue applications for further employment at the University, notwithstanding a history of disputes which had involved them in litigation. She attended at the University Chancellery Building, where she asked to meet the Vice-Chancellor. He was unavailable, but the University’s human resources Director discussed the situation with her. She refused to leave at the end of their discussion, even when requested by University security officers. They then called for assistance from the NSW Police Service. Police officers attended, took her into custody, and charged her with trespass under s.4 of the Inclosed Lands Protection Act 1901 (NSW). Similar events reoccurred on 10 November 2003, 22 October 2004 and 29 October 2004.
In her present application under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), she alleges that the conduct of the police officers in the course of her four arrests involved racial discrimination which was unlawful under ss.9(1) and (1A), 11 and 13 of the Racial Discrimination Act 1975 (Cth) (“the RDA”), and she seeks compensation and other remedies.
Section 9(1) of the RDA makes it unlawful “for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.”
Section 9(2) provides that the reference to a ‘human right’ etc “includes any right of a kind referred to in Article 5” of the International Convention on the Elimination of all Forms of Racial Discrimination (‘the Convention’). Mrs Paramasivam alleges that the police conduct impaired her equal recognition of the following rights listed in Article 5:
(a) The right to equal treatment before the tribunals and all other organs administering justice;
(b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by an individual, group or institution;
(c) Political rights, in particular the rights … to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service.
(d) Other civil rights, in particular: … (iii) the right to nationality; … (vii) the right to freedom of thought, conscience and religion; (viii) the right to freedom of opinion and expression; (ix) the right to freedom of peaceful assembly and association.
(e) Economic, social and cultural rights, in particular: (i) the rights to work, to free choice of employment, … to protection against unemployment, to equal pay for equal work, to just and favourable remuneration; … (v) the right to education and training.
Mrs Paramasivam alleges that police conduct also constituted indirect discrimination proscribed under s.9(1A), because she was “required” by the police officers “to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case”, being one which she “does not or cannot comply with”, and where it had the purpose or effect of nullifying the recognition of human rights on an equal footing “by persons of the same race, colour, descent or national or ethic origin” as hers.
She also alleges that there was unlawful discrimination under s.11 of the RDA, because the police refused her access to, and required her to leave or cease to use, a place or facilities “that members of the public are, or a section of the public is, entitled or allowed to enter or use”, “except on less favourable terms or conditions than those upon or subject to which” access would otherwise be allowed, and did so “by reason of (her) race, colour or national or ethnic origin”.
She also alleges that there was unlawful discrimination under s.13 of the RDA, because she was unlawfully refused or not supplied with services by the police officers, or was supplied services on less favourable terms or conditions, by reason of her race, colour or national or ethnic origin.
In an interlocutory judgment, I refused to dismiss her application summarily, and gave her an opportunity to put before the Court all her evidence to establish racial discrimination on the part of the police officers (see Paramasivam v State of New South Wales (No. 2) [2007] FMCA 1033). Her subsequently filed affidavit evidence was extensive, and was subject to objections by the respondent. These were identified in writing in a summary form, and Mrs Paramasivam responded to them similarly, withdrawing some parts of her affidavits. I indicated that I would rule upon the disputed objections when I came to write my judgment, and my rulings are set out at the end of this judgment.
As well as presenting her own evidence by affidavit, Mrs Paramasivam had the opportunity to cross-examine nine police officers on their affidavits. All these officers attended in person except two officers, whose evidence I allowed to be taken by telephone with the consent of Mrs Paramasivam. Other police officers gave evidence by affidavit, and were not required for cross-examination.
After considering all this evidence, I have concluded that there is no evidence to support any of Mrs Paramasivam’s contentions of unlawful discrimination. All of the police officers impressed me with their professional and competent responses to the four requests for assistance from the University authorities. I have found that their law enforcement actions, and their conduct incidental to the arrests and detaining of Mrs Paramasivam, were not attended by any discrimination on the ground of her race, colour or national or ethnic origin. I consider that she was treated no differently in any respect from any other person who might become liable to arrest under the Inclosed Lands Protection Act, regardless of their race, colour or national or ethnic origin.
I shall explain my conclusions specific to each of the provisions of the RDA which are relied upon by Mrs Paramasivam, after considering what happened in each of the four incidents. There was little factual controversy between the parties, and I consider that any differences were the result of uncertain memories. The police witnesses’ evidence was corroborated by their contemporaneous records. Generally, all witnesses, including Mrs Paramasivam, were meticulous in their attention to the truth, and I had no reservations as to the general credibility of any of them. The following narrative condenses the relevant events which I find to have occurred.
The first arrest: 15 September 2003
In the course of correspondence with the University in August and September 2003, Mrs Paramasivam informed the Vice-Chancellor and the Director of Human Resources, Mr Morris, that she intended to seek to see the Vice-Chancellor, notwithstanding that she had been warned against doing this. In the morning of 15 September 2003, she went to the reception area in the Chancellery, and was asked to wait in the foyer. She was wearing a sari, and her racial or ethnic origins were also apparent from her Sri Lankan appearance. She sat down, and remained in that area until she was removed by police. She spoke to Mr Morris, who confirmed that the employment she had applied for was not available, and she then declined to leave the building when he requested this several times. She also repeatedly refused to leave at the request of University security staff. They therefore called for police assistance.
Senior Constable Zavestanos and Constable Vaughan received a direction to attend. They were on patrol in the area, driving a caged truck. They noted Mrs Paramasivam sitting in the waiting area, and took information from university officials. She again did not leave when requested by those officials. When Senior Constable Zavestanos told her: “Raja, if you do not leave the building you will be arrested”, she said: “I’m not leaving, you will have to arrest me.” He therefore sought assistance from a more senior officer, and Sergeant McCusker, who was on patrol in a sedan, gave advice to him, and came to the Chancellery with another female officer, Constable Brewer.
Sergeant McCusker confirmed with University officials that Mrs Paramasivam was in an area of private offices, and that she had refused to leave when requested by them. She again refused to leave, and said: “you can carry me out”, and: “I’m not leaving, you will have to arrest me.” She was warned, and placed under arrest. Sergeant McCusker and Constable Brewer lifted her out of her chair by her arms, and escorted her down the stairs and out of the building. They did not need to carry her, but she “walked very heavily” and did not ‘walk properly’ when requested. One of the three female officers conducted a ‘pat down search’, and took custody of her handbag and personal property, before she was placed in the caged vehicle. She was then driven to Maroubra Police Station.
At the Police Station, Constable Vaughan completed a ‘custody management record’. Mrs Paramasivam is recorded as being ‘calm and cooperative with police”. It is signed by the station custody manager, Sergeant Robinson, who decided that she should be released without bail. She was given a court attendance notice.
Mrs Paramasivam confirms that she was asked questions to assess her mental state at the police station, and she complains that she felt insulted, humiliated and intimidated. However, I am satisfied that she was treated appropriately, and that the affronts to her dignity and feelings were only the inevitable result of her own voluntary conduct which brought about her arrest and eviction from the University.
Constable Zavestanos completed the entries into the police COPS computer data base concerning the incident, and from this he prepared a ‘Facts Sheet’ for a charge of remaining on inclosed land, not prescribed premises, without lawful excuse. In the data field in COPS inviting two entries for “Place of birth/Nationality”, he entered: “Sri Lanka – Sri Lanka”. This data was then picked up in the Facts Sheet, which gives her nationality as “Sri Lanka”. Neither Constable Zavestanos nor Mrs Paramasivam have a recollection of how this entry came about. It is speculative whether the recording of her nationality as Sri Lanka, and not Australian, was a misunderstanding of something she said, or was an incorrect assumption on his part. It is not disputed that, in fact, at that time she held Australian nationality by voluntary acquisition, and that she had formally renounced her Sri Lankan nationality.
In the subsequent court proceeding on 29 October 2003, the offence was found proven, but no conviction was recorded.
I am satisfied that the decision of Sergeant McCusker to place Mrs Paramasivam under arrest on this occasion was uninfluenced by Mrs Paramasivam’s race, colour, or national or ethnic origin. On the information available to Sergeant McCusker, Mrs Paramasivam was plainly liable to be charged under s.4(1) of the Inclosed Lands Protection Act, and I find that she was courting arrest after repeatedly refusing to leave the Vice-Chancellor’s office waiting area. In the circumstances, an arrest, rather than an ‘on the spot’ fine, or prosecution by way of summons, was a reasonable police response to her overt conduct.
Section 4(1) provides:
(1) Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable to a penalty not exceeding: (a) 10 penalty units in the case of prescribed premise, or (b) 5 penalty units in any other case.
“Inclosed lands” is defined in s.3 as “prescribed premises” or “any land, either public or private, inclosed or surrounded by any fence, wall or other erection, or partly by a fence, wall or other erection and partly by a canal or by some natural feature such as a river or cliff by which its boundaries may be known or recognised, including the whole or part of any building or structure and any land occupied or used in connection with the whole or part of any building or structure.” “Prescribed premises” are defined as “land occupied or used in connection with” a government or registered non-government school, a child care service, hospital or nursing home. The evidence before me is unclear whether such a facility is found anywhere on the premises of the University.
Mrs Paramasivam attempted to give a discriminatory colour to the exercise of police powers of arrest on this occasion and on the latter occasions, with two general arguments and some specific criticisms of their conduct.
Her first general argument implied that the police were complicit in racially discriminatory policies or actions on the part of the University officials, which had led her to take peaceful protest action at the Chancellery, and to refuse to comply with University requests that she leave its premises. However, there is no evidence of any communications between University officials and the police which did anything more than confirm her trespasses at the Chancellery on each occasion. Moreover, Mrs Paramasivam has never been able to establish any discriminatory conduct by the University, and her attempt to establish this was summarily dismissed (see: Paramasivam v University of New South Wales [2007] FCA 875, and Paramasivam v University of New South Wales [2007] FCAFC 176).
Her second general argument, which related to all of her contacts with the police, contended a pervasive racial prejudice in Australian society against persons with her race, colour, or national or ethnic origin. She explained her philosophical response to this, which leads her to demonstrate her ethnicity, in particular by wearing her sari, and to protest by passive disobedience in response to actions which she perceives to be influenced or caused by racial discrimination. However, she was unable to elicit from any of the police officers a skerrick of evidence that any of them held conscious or unconscious racial prejudices with might have influenced their actions. To the little extent that she attempted to explore this in cross-examination, the officers showed tolerant, non-discriminatory attitudes and an appropriate appreciation of the existence of Australian legislation and administrative policies supporting the Convention. I have found no substance in the evidence before me that any of the actions of the police in this case reflected a general institutional or cultural bias against persons with Mrs Paramasivam’s race, colour, or national or ethnic origin. Nor have I found any evidence that it was influenced by a general bias against persons lacking the race, colour, or national or ethnic origin of any group of Australians which might be perceived as being more dominant.
Mrs Paramasivam’s criticisms of police conduct in this incident identified, in particular, the circumstances in which she was searched by a female police officer, and was conveyed in a caged vehicle. However, I accept the police evidence that these were normal incidents of the recommended procedures for an arrest of this nature, and were unrelated to her actual or perceived race, colour, or national or ethnic origin. I reject her suggestions that their decisions to follow these procedures was influenced by the fact that she was wearing a sari, or that they treated her as if she were a suspected terrorist because of her apparent ethnicity. Nor would I draw inferences of racial discrimination on the part of the police officers from the various points made in paragraphs 1 to 30 of her affidavit sworn on 5 October 2007, and I consider that each of these points is lacking in any substance for obvious reasons.
Mrs Paramasivam has given great emphasis to the mistaken entry in the COPS data base of her nationality as ‘Sri Lanka’. This was repeated in the FACTS sheet for the charge arising from this incident, and also appears to have been automatically carried over into the police documentation for the subsequent 3 incidents. I think this explanation for the repetition is more likely, than that the subsequent arresting and custody officers continuously entered the wrong data.
Whatever the origins of the original error, and the failure to correct it until after the fourth incident (as I shall describe below), I am not satisfied that it was the result of, or was in any way influenced by, any bias against a person with Mrs Paramasivam’s race, colour, or national or ethnic origin. In itself, the incorrect ascribing of a nationality did not concern one of these matters, since “nationality” is a legal concept or personal attribute distinct from “national origin” (see Commonwealth v McEvoy (1999) 94 FCR 341 at [31] to [34]).
The second arrest: 10 November 2003
After the charge arising from her first arrest was disposed of, Mrs Paramasivam decided again to seek to approach the Vice-Chancellor, and she informed the University of her intention to attend on 10 November 2003. She received a letter from his ‘senior advisor’, Mr Milne, which said:
The Vice-Chancellor is not available to see you. You are asked not to insist on coming to the University in an attempt to see the Vice-Chancellor. If you disregard this advice and request, the University will have no choice but to seek to have you removed from the premises if necessary.
Mrs Paramasivam claims that she said in her written response, inter alia:
…I am more of an owner than you are of the UNSW. I have the lawful authority to act as a member of the public who own UNSW but you do not have the lawful authority to write to me on behalf of the Vice Chancellor to the UNSW to not come or to come. I expect you, as senior advisor to the Vice Chancellor to know all this & also to know how to manage an employment issue through the lawful process instead of converting it into a security issue without any violence on my part. I feel I am being devalued & defamed …”
However, she admitted in evidence that she had no doubt that the University would have her removed unless the Chancellor intervened. She again wore her sari. When she arrived at about 10am, she noticed that police were ‘waiting’ in a caged van outside the Chancellery. They were Constable Lawson, Constable Amanda Butler and Constable Brooke O’Connor, who had been directed to attend by Sergeant Farrell at Maroubra Police Station, after he received a request for assistance from the University.
In the reception area, Mrs Paramasivam was met by a University security officer, who identified himself, and asked her to wait. However, she said to him: “As an Australian, I have the lawful right to enter the Vice Chancellor’s office for lawful purpose”. She turned away, and walked up the staircase leading to the Vice Chancellor’s office. Outside his office, she was asked to sit by a receptionist. She was then told by Mr Milne: “it is not possible for you to see the Vice Chancellor. Please leave”, and he threatened to call the police. The security officer said the same thing to her.
The receptionist then called Constable O’Connor on her mobile telephone, and the police officers entered the Chancellery. Constable Lawson approached Mrs Paramasivam, and gave her directions to leave the University grounds, and warned that she might be arrested if she failed to comply with his direction. She did not do so, but maintained that no person was authorised to give this direction. She was then arrested for trespass. She refused to stand up, and Constable Butler took possession of some religious books which she carried. Constable Lawson and Constable Butler then led her by the arms out of the building and to the van. At the request of Constable Butler, she removed jewellery and one of the pins in her sari. She was then taken to the Maroubra Police Station in the van.
At the police station, she was introduced to the custody manager, who directed that she should be searched. This was performed by the two women officers in a cell, and another pin was removed from her sari. Constable O’Connor also took her finger prints, and she was photographed.
Constable Lawson received a three page hand written statement from Mrs Paramasivam, which stated her objection that she had been treated “like a common criminal”. The statement also said: “I will repeat my actions again & again because I believe in the truth.” It was witnessed by the women police officers. At the end of the statement, she wrote, in response to the question whether she had any complaints about the manner in which she had completed the statement: “I was treated with respect. Thank you.”
Constable Lawson also prepared a COPS entry for the incident. He inserted in the field for ‘racial appearance/complexion’: “Indian Black”, because this appeared to be the best option provided by the computer. He also prepared a FACTS sheet, which in its personal details again showed her nationality as Sri Lanka. He has no memory as to how this came about, and I find that it was probably carried over automatically from her personal details in the previous COPS entry. Mrs Paramasivam’s written statement had said “I am an Australian”, and it was also noted in her ‘antecedents’ described in the FACTS sheet that she was an Australian citizen.
The custody manager offered to allow Mrs Paramasivam bail, on condition that she was not to return to the University. However, she refused to sign the conditions, even after the police arranged for her to talk to her husband. She was therefore conveyed in a police van to Waverley Police Station, to be brought before a magistrate in the adjoining court house. The FACTS sheet charged her with “remain on prescribed premises without lawful excuse”, but it is unclear whether this was amended subsequently to “not prescribed premises” or whether other charges were substituted.
The subsequent course of the charges against Mrs Paramasivam is not clearly narrated in the material before me. They do not appear to have been finalised until September 2004, when they were dismissed on the ground that she had established a lawful excuse and honest and reasonable mistake of fact. Their history is briefly narrated by Sully J in Paramasivam v University of New South Wales [2006] NSWSC 1189 at [13]. Mrs Paramasivam’s present complaints of racial discrimination by the police officers do not encompass events after she was transported to Waverley court, and it is unnecessary for me to explore that history.
In relation to the actions of the police on 10 November 2003, Mrs Paramasivam makes the same complaints of racial discrimination as in relation to her first arrest. I have arrived at the same conclusions as in relation to that arrest, after considering all the relevant evidence. I have similarly not been persuaded that the police officer’s decisions to arrest her, and to transport her in a police van to Maroubra police station, were at all influenced by her race, colour, or national or ethnic origin.
While this was the first occasion that she was searched, finger printed and photographed at a police station, these indignities are reasonably attributable to the circumstances apparent to the police, being a repetition of her previous offence, and their decision that she should be held in custody as a result of her refusal of bail conditions. I am not persuaded that she was subjected to any different treatment in any respect, than would a person of any other background who appeared to be committed to the course of disobedience adopted by Mrs Paramasivam. I accept the evidence of the police officers that the caged vehicle was “the vehicle we had at the time”, and that they followed standard police procedure to convey persons in custody in such vehicles. I accept that only standard procedures were observed at the police station.
Constable Butler did comment on Mrs Paramasivam’s sari, but in an admiring and not offensive manner. This is confirmed in Mrs Paramasivam’s contemporaneous written statement, as is her response: “I’m making a statement like Gandhi.”
I consider that the continuation of the mistaken COPS entry for her nationality should be addressed in the same way as above. I consider that the entry for her ‘racial appearance/complexion’, which from this time appeared in her personal information in COPS, did not reflect any discriminatory treatment, but was a reasonable, and neutral, method of recording personal appearance for valid police identification purposes.
The third arrest: 22 October 2004
When Mrs Paramasivam was first taken before the court after her second arrest, she was persuaded by a Legal Aid solicitor to accept bail conditions restricting her from attending at the University while she defended the charge. She complied with her bail conditions while the charges were before the Local Court, although she unsuccessfully applied to have them removed. She did, however, maintain a stream of emails to people at the University.
Following the dismissal of the charges, the newly appointed Vice-Chancellor, Professor Wainwright, agreed to meet Mrs Paramasivam to discuss her concerns. They met on 1st and 21 October 2004. The Vice-Chancellor then wrote to her:
Further to our meeting of this morning with Neil Morris, Director of Human Resources, in attendance, I write to emphasise the points I made to you verbally.
Firstly, it is important that you understand that the University is unable to create a position for you. You are of course able to apply for any advertised position and there is no impediment to you expressing an interest in any such vacancy.
Secondly, I do not believe that there is any requirement to compensate you for anything in relation to your period of employment at the University.
I have considered what you presented to me in writing and verbally in our meetings of 1 October 2004 and again today. Whilst you indicated that you do not necessarily share the view that I take, you should understand that I will not be reconsidering or reversing my position. I therefore do not intend to meet with you again. It is also necessary to point out to you that you should not come onto campus to meet with me unless you are invited directly by me. As Vice-Chancellor of the University I must instruct you not to come to my office unless you are specifically invited by me to do so.
I note your view that you believe there are matters that remain unresolved, however, the University regards these matters as closed. As we discussed, your rights to pursue matters through external avenues remain.
On her part, Mrs Paramasivam sent an email to the Vice-Chancellor after their meeting, indicating that she intended to return to his office on 22 October 2004. She received his letter before she left home for that purpose on that day, and she understood his clear instruction in the penultimate paragraph. However, she emailed a response that she was coming, and suggested that the University should obtain a court restraining order (known as an ‘AVO’).
She reached the Chancellery in the mid afternoon, and sat in the front reception area. She was wearing a sari. An executive officer to the Vice Chancellor, Ms Harris, spoke to her, and confirmed that the Vice-Chancellor was not available and would not meet with her again. Ms Harris asked Mrs Paramasivam to leave the office, and called for a University security officer when she refused. Mrs Paramasivam also refused the requests of that officer to leave the office and University campus, and he called the Maroubra Police Station for assistance.
Senior Constable Doxakis and Constable Magnus were on patrol in a sedan, and were directed to attend. Mrs Paramasivam maintained to them: “I have a right to stay. I want to see the Chancellor” (more probably: Vice-Chancellor), even after being warned that she could be charged with trespass if she did not leave. Senior Constable Doxakis took information from Ms Harris, and received telephone advice from his Sergeant. He again asked her to leave, and said: “Please get up or I will carry you out”. She said: “No, I am staying here. I know my rights”. The two police officers then took her upper arms, but were forced to carry her out of the Chancellery, because she attempted to lie down and refused to walk. She continued to refuse to walk, so they carried her off the campus onto the footpath in the adjacent High Street. Senior Constable Doxakis there told her: “You understand you are not allowed to be on the campus. If you return today you will be arrested.” He turned away, but saw that Mrs Paramasivam had walked back through a gate into the fenced campus. He then arrested her, escorted her to the police car, and radioed for a female officer and a caged truck. They arrived about 5pm, and Mrs Paramasivam was searched by the female officer, placed in the truck, and taken to Maroubra Police Station.
Senior Constable Doxakis entered the incident into COPS, and prepared a FACTS sheet in relation to a charge of ‘enter inclosed land not prescribed premises without lawful excuse’. I accept his evidence that the computer automatically repeated the previously entered “Sri Lanka” as Mrs Paramasivam’s nationality at the top of the FACTS sheet. COPS also appears to have repeated the previously entered ‘racial appearance/complexion’ field. He asked Mrs Paramasivam whether she would like to be interviewed, but she said: “No. Not without my Sri Lankan representative present”. However, when Sergeant Grech tried to contact the consulate there was no response, since it was outside business hours.
Sergeant Grech was the station custody manager who had commenced his shift shortly after Mrs Paramasivam was brought in. He does not dispute Mrs Paramasivam’s claim that he said to her when she objected to being fingerprinted and photographed: “When you are in police custody you have to do what the police ask you to do, in other words if they tell you to jump, you jump.” He agreed that he might have pushed the cell door with his foot, but denied that he was aggressive or insulting towards Mrs Paramasivam. He completed a custody management record, including statements that she was “sitting quietly in dock. Nil problems”, that she declined his offer to send a constable out for a vegetarian meal, and that she was “an Australian citizen/permanent resident”. He decided to release her from custody at about 9.36pm, after giving her a court attendance notice.
My conclusions in relation to these events are the same as in relation to the two previous arrests. The decision to arrest Mrs Paramasivam is fully explained by the circumstances confronting the police officers, and was uninfluenced by her race, colour, or national or ethnic origin. The fact that she wore a sari was of no relevance to them. Her forcible removal was the result only of her deliberately uncooperative conduct. The call for a covered truck, and the procedures which were adopted in relation to her search, transportation and custody at the police station, were all normal incidents of a standard procedure.
I can find no support for her complaints of racial discrimination, in the fact that Senior Constable Doxakis did not take a statement from a passer-by in High Street who queried what was happening. Nor do I accept that any statement by Sergeant Grech at the police station was abusive, or was related to or influenced by her race, colour, or national or ethnic origin.
I find that the repetition of “Sri Lanka” as her nationality in the FACTS statement does not support her complaints under the RDA, for the reasons given above. In my opinion, none of the officers was influenced in their conduct by any perception as to her national origin, even if they incorrectly assumed that she was a Sri Lankan national as a result of her request for a representative from that consulate.
The fourth arrest: 29 October 2004
The following week, Mrs Paramasivam decided that she would again attend at the Chancellery, because the University had not obtained an AVO to restrain this. She went back to the Vice-Chancellor’s reception area in the late morning, wearing ‘a western suit’. She was again asked to leave by Ms Harris, and by a University security officer, and she again refused. They called for police assistance.
Leading Senior Constable Smeallie and Constable Francesca Swan, stationed at Mascot Police Station, were on patrol in a sedan vehicle, and were directed to attend. After speaking to Ms Harris, Senior Constable Smeallie talked to Mrs Paramasivam in the reception area and interviewed her in a ground floor committee room. She agreed that she had refused to leave when requested by the University officers, and she refused to leave when he gave that direction. He then arrested her. She signed the record of his interview in his note book, and agreed to walk to the police vehicle “because you have been nice”. She was escorted to the police vehicle, and taken to Maroubra Police Station.
At Maroubra Police Station, Sergeant Grech was custody manager at 2.45pm when Mrs Paramasivam was entered into custody. She was again searched, fingerprinted, and photographed. At her request, Sergeant Grech made contact with the Sri Lankan Consulate, but they were both told that the consulate would not assist her, because she was an Australian citizen. He offered her bail on condition that she would not contact any member of staff of the University by any means and not enter any land or building occupied by it. However, she refused these conditions, and stated that she would continue to contact staff and attend the University. She was therefore held in custody until the next morning, when she was taken before Waverley Local Court.
Leading Senior Constable Smeallie completed the COPS record and a FACTS sheet for this incident, charging the offences of entering and remaining on inclosed land, not prescribed premises, without lawful excuse. Both of these records automatically carried over the previously entered nationality of “Sri Lanka”, and Leading Senior Constable Smeallie has no recollection of asking her about this. Her ‘racial appearance/complexion’ was also carried over.
The COPS transaction records show that the nationality field was changed to “Australian” by an entry made at Waverley Court on 1 November 2004, but there is no evidence as to how this came about. After that entry, the FACTS sheet was automatically corrected. This evidence is contrary to Mrs Paramasivam’s claim that the change was made “reluctantly” and “with apparent wounded ego” on the part of Sergeant Grech, after he spoke to the consulate.
Mrs Paramasivam encountered many upsetting events in the course of the subsequent proceedings in the Local Court and District Court in relation to the charges arising from her third and fourth arrests. However, they do not give rise to, nor offer any probative evidence of, her complaints of racial discrimination by the NSW police officers which are now before me. It is therefore unnecessary for me to examine that history.
Mrs Paramasivam has given emphasis in her complaints of racial discrimination in the police conduct in the first three arrests, by contrasting it with what happened during the fourth arrest. In particular, she believes that Leading Senior Constable Smeallie behaved more flexibly in his procedures, in particular by conveying her to the police station in a sedan, without searching her. She attributes this to the fact that she was not wearing a sari, which she believes invites racial oppression.
However, in my opinion, there are other reasons for the differences, which have no relationship to what she was wearing nor to any other actual or imputed characteristic of her race, colour, or national or ethnic origin. The significant reason is that Mrs Paramasivam’s own conduct on 29 October 2004 was cooperative with the police, in a manner which clearly differed from her past behaviour in the presence of the arresting officers. I accept Leading Senior Constable Smeallie’s evidence that he did not call for a caged van because: “she had been cooperative and had not resisted the arrest in any way. I did not think she posed a threat to us”. He confirmed the policy which had been followed by the previous arresting officers: “generally persons placed under arrest are conveyed in a caged vehicle and it is only in exceptional circumstances that a person is conveyed in a sedan.” I am not persuaded that the dress worn by Mrs Paramasivam played any part in influencing the procedures he followed on that day. As I found above, I am also not persuaded that her wearing a sari influenced anything which happened differently on the earlier three occasions.
In relation to the other aspects of the police conduct in the course of the fourth arrest, I have reached the same conclusions which I have explained above in relation to the earlier arrests. I can find nothing which happened to be probative of Mrs Paramasivam’s complaints of discriminatory conduct by the police officers on the ground of her race, colour, or national or ethnic origin.
Conclusions on complaints
In relation to Mrs Paramasivam’s complaints under s.9(1) of the RDA, I have above held that the COPS and FACTS sheet entries in relation to her nationality did not involve a distinction etc “based on race, colour, or national or ethnic origin”. I have found that none of the arrests themselves, and nothing in the police conduct in relation to the arrests, involved such a distinction. All of the arrests, in my opinion, were the result only of Mrs Paramasivam’s own actions in courting arrest by refusing to leave University premises when reasonably so requested. The police in all respects followed police procedures uniformly applicable to persons arrested in similar circumstances, regardless of their race, colour, or national or ethnic origin.
The only possible exception might appear to be the entry into COPS of the field for ‘racial appearance/complexion’. However, I am not satisfied that this had “the purpose or effect of nullifying etc” the exercise by Mrs Paramasivam “on an equal footing” of any human right or fundamental freedom under Article 5 of the Convention. I accept that a racial descriptor was part of maintaining a police record for identifying persons charged with offences, and am not satisfied that the entry in relation to Mrs Paramasivam had a purpose or effect described in s.9(1). I am not satisfied that the content, the circumstances, or the effect, of the entry into COPS concerning her appearance affected her relevant human rights any differently than those of every other person who properly became subject to having their racial description and appearance entered into COPS.
In relation to the complaints under s.9(1A) of the RDA, Mrs Paramasivam has not properly formulated the unreasonable “term, condition or requirement” which she claims to have been subjected to, and which she does not or cannot not comply with, and which had the purpose or effect of nullifying the recognition of human rights on an equal footing by persons of her race, colour, or national or ethnic origin.
Assuming that the police requests which directed her to leave, or not to enter, the University could come within s.9(1A)(a), then in the circumstances I have described above I do not accept that they were “not reasonable”. I also do not accept that they had any of the purposes or effects described in s.9(1A)(c). It is unnecessary for me to decide whether her voluntary refusal to comply could satisfy the test of “does not or cannot comply” in s.9(1A)(b).
For reasons which should be apparent from my above findings about each arrest, I have arrived at the same conclusions in relation to every element in the police officers’ conduct towards Mrs Paramasivam in the course of her arrests and subsequent treatment.
In relation to the complaint of breach of s.11 of the RDA, I do not accept that any of the police officers refused to allow Mrs Paramasivam access to any part of the University or its facilities “on less favourable terms or conditions” than would otherwise be given to persons in the same situation, regardless of their race, colour, or national or ethnic origin. As I have found above, the arresting officers were all presented with circumstances in which she appeared to be conducting a protest demonstration against the University’s requests that she should leave, by courting arrest. In these circumstances, I consider that any resident of Australia, whatever their race, colour, or national or ethnic origin, was likely to have been required to leave, or not to enter, and was likely to be arrested when refusing such a direction given by a police officer.
In relation to the complaint of breach of s.13 of the RDA, current authorities probably bind me to hold that the police were not “supplying goods or services” when performing police functions relating to her arrest, detention, and prosecution (see Rainsford v State of Victoria [2007] FCA 1059 at [64]-[81], not disturbed on appeal: Rainsford v State of Victoria [2008] FCAFC 31 at [9]). Moreover, I have made findings above that none of the police actions when dealing with her were influenced by Mrs Paramasivam’s race, colour, or national or ethnic origin. She does not suggest that they were influenced by the race, colour, or national or ethnic origin of any of her relatives or associates. This complaint is not, therefore, established on the evidence before me.
I have therefore not been satisfied that Mrs Paramasivam has made out any of her complaints of unlawful discrimination by NSW police officers. She is therefore not entitled to any of the relief she seeks, and I must dismiss her application.
I shall hear further submissions in relation to costs orders.
Rulings on respondent’s objections
The following rulings address only those paragraphs of Mrs Paramasivam’s affidavits to which objections were taken and which were pressed by her. Subject to what I say below, the objections which are upheld, are upheld on the basis asserted in the respondent’s schedule. The respondent’s objections which I have not accepted, concern paragraphs which arguably provide admissible evidence relevant to establishing Mrs Paramasivam’s mental state relevant to her claim for compensation, or matters of history possibly relevant to understanding the events which I have addressed in this judgment.
I note that the respondent did not object to large parts of the affidavits which were defective in form, or were otherwise of dubious admissibility. I commend this approach in relation to the evidence of a self-represented litigant, and I have been similarly light-handed in my rulings against Mrs Paramasivam. There were, however, parts of her affidavits which were clearly only of an argumentative, unnecessary, or prejudicially irrelevant or otherwise inadmissible nature, and I consider that it was appropriate to exclude this material under Federal Magistrates Court Rule 15.29(1), or on the ground of relevance or discretion under s.135 of the Evidence Act.
Affidavit sworn and filed in the Federal Court on 4 December 2006. I uphold the respondent’s objections in relation to the whole or parts of the following paragraphs: 5, 10, 14 (second sentence only), 15, 21, 23, 24, 35 (on pages 9-10), 40, 42, 46, 44 (on page 21), 48 (on page 26), and 51 (on page 27).
Objection was also taken to “all annexures after annexure marked ‘Attachment B’”, which appears to relate to the documents attached to Mrs Paramasivam’s Form 167 filed in the Federal Court on 4 December 2007. I have received this bundle, on the basis that they were documents presented to the Human Rights and Equal Opportunity Commission before it made its notice of termination dated 28 November 2006. To the extent that they contain material irrelevant to the issues addressed by me above, I have not taken them into account.
Affidavit sworn and filed on 10 August 2007. I uphold the respondent’s objections in relation to the whole or parts of the following paragraphs: 1, 2, 5.5(69) to (77) inclusive, 5.5(79), and 5.5(87) to (89) inclusive.
Affidavit sworn and filed on 5 October 2007. I uphold the respondent’s objections in relation to the whole or parts of the following paragraphs: 31 to 40 inclusive, 47, 51, 60, 74, 75, 80 to 88 inclusive, 92, 103, 145, 164, 187, 208, and 209. Of the annexures to this affidavit, I admit only pages E1 and 2. Annexure D and pages E27-30 are admitted as relevant only to issues of costs.
Affidavit sworn 15 October and filed 16 October 2007. The parts objected to, and their annexures, are admitted as possibly relevant only to issues of compensation and relief.
Affidavit sworn and filed on 23 November 2007. The whole of this affidavit and its annexures are rejected. This material is irrelevant to issues of liability, and any relevance to questions of relief is outweighed by its embarrassing and prejudicial nature. It is therefore rejected under my discretion in s.135 of the Evidence Act.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 2 June 2008
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