Patrick v State of South Australia (No 2)
[2009] SAEOT 1
•21 January 2009
EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
PATRICK v STATE OF SOUTH AUSTRALIA (NO. 2)
[2009] SAEOT 1
Judgment of Her Honour Judge Trenorden, Member Ms A Bachmann and Member Ms H Jasinski
21 January 2009
HUMAN RIGHTS - DISCRIMINATION - GROUNDS OF DISCRIMINATION - OTHER MATTERS
Complaint alleging discrimination on grounds of race, religious belief and impairement, mental health.
HELD: Act does not proscribe discrimination on the ground of religious belief - Act does not proscribe discrimination on the ground of mental health or mental illness.
Allegation of discrimination on ground of transsexuality - arrested, charged and held in custody by Police - Whether "services" to which Act applies - Approaches to statutory interpretation.
HELD: Complainant not provided with services by the Police.
Equal Opportunity Act 1984; Equal Opportunity Act 1984 (WA); Interpretation Act 1984 (WA); Interpretation Act 1915 (SA); Police Act 1998, referred to.
IW v City of Perth (1997) 191 CLR 1; Farah v Commissioner for Police of the Metropolis [1998] QB 65, considered.
PATRICK v STATE OF SOUTH AUSTRALIA (NO. 2)
[2009] SAEOT 1THE TRIBUNAL DELIVERED THE FOLLOWING JUDGMENT:
This matter concerns a complaint made by the complainant Patrick to the Commissioner for Equal Opportunity (the Commissioner) on 11 April 2006 against the South Australian Police (SAPOL). The complaint was declined by the Commissioner on 20 March 2007.
Patrick requested that the Commissioner refer the complaint to this Tribunal pursuant to the provisions of the Equal Opportunity Act 1984, and that was done, the complaint being described by the Commissioner as follows:
That on or about 23rd and 24th March 2006, South Australian Police Department of PO Box 1539 Adelaide 5000 in the State of South Australia discriminated against the said Patrick, contrary to sections 29, 39 and 91 of the Equal Opportunity Act, 1984 (S.A.).
In April 2007 Patrick sought to add further particulars of complaint. Whether those further matters could be the subject of a hearing in this Tribunal was heard and determined as a preliminary issue by the Tribunal on 20 December 2007. The Tribunal decided that it was only able to address the matters that had been referred to it by the Commissioner for Equal Opportunity, namely those matters complained of that were alleged to have occurred on 23 and 24 March 2006.
Patrick describes herself as being transsexual or transgender, which for her are interchangeable terms. She was born a male person but at the time of the hearing and for some time prior, was and has been undergoing a gender reassignment program. She dresses according to what she considers appropriate at the time, but generally dresses as a female person. Thus, most times Patrick will dress and present as a female person but sometimes she will present as a male person, or dress in gender neutral clothing. It is our understanding that Patrick generally prefers to be recognized and referred to as a female person.
Patrick changed her name by deed poll on 21 February 2001 from “Patrick John Waldon” to “Patrick”. Her birth certificate shows her name as Patrick John Waldon, and describes her sex as male. It appears that SAPOL have referred to her by this name and also as Patrick Waldon, Patrick Walden and Patrick.
We accept that a person undergoing gender reassignment is likely to encounter difficulties in our society. We understand that such persons, regrettably, may encounter prejudice from other members of our society, in consequence of their appearance. We also accept that almost inevitably, after a person has changed his or her name, there will be instances when they are recognized or referred to by their former name. As it is the norm in our society for a person to have a first name and a surname, we acknowledge that some persons might have difficulty accepting that a person has only one name. We can see how some of these consequences could be very distressing for a person in Patrick’s situation.
It was asserted by the Commissioner that Patrick’s complaint was one of discrimination by SAPOL against Patrick contrary to sections 29, 39 and 91 of the Equal Opportunity Act. Patrick’s Particulars of Complaint, filed 13 April 2007, includes the following under the heading “STATEMENT OF COMPLAINT”:
Sexually discriminated
Racially discriminated
Discriminated due to disability (mental illness)
By this, we understand Patrick to have alleged that she has suffered discrimination contrary to s 29(3) of the Equal Opportunity Act, namely discrimination on the ground of sexuality in relation to services provided (s 39) by officers of SAPOL and in consequence of which, SAPOL is vicariously liable (s 91).
With respect to the allegation by Patrick that she was subject to racial discrimination by officers of SAPOL, we understand that she is alleging discrimination on the ground of race (s 51) in relation to services provided (s 61) by officers of the SAPOL and in consequence of which, SAPOL is vicariously liable (s 91).
When the hearing commenced on 7 August 2008, Patrick agreed that her complaint alleged discrimination in the provision of services by SAPOL on 23 and 24 March 2006 at Port Adelaide on the ground of sexuality, and in addition asserted that SAPOL had “also discriminated against my mental health and also on my religious beliefs, too”.
The Facts
In about March 2006 Patrick had been advised that there were outstanding warrants for her apprehension, following her failure to attend at Magistrates Courts pursuant to summons. Patrick presented herself to the Port Adelaide Police Station on 22 March 2006, to answer to the warrants. Nothing was found and she was advised, or chose of her own volition, to attend again the following day.
On 23 March 2006 Patrick again attended at the Port Adelaide Police Station, when two warrants were found; one in the name of Patrick Walden and the other in the name of Patrick. She expected to be taken before the Court that day. However, as release on bail by SAPOL was not permitted on one warrant, Patrick was placed under arrest and taken into the Port Adelaide cells area, to be charged. Patrick had not anticipated this course of events, and became distressed. She did not communicate with SAPOL officers, despite their attempts to communicate with her. After the charging process was completed, she was placed in an observation cell, where in a distressed state, Patrick began to bang her head against the wall. An ambulance was called and Patrick was taken to the Queen Elizabeth Hospital.
Following assessment, Patrick was not admitted to the Queen Elizabeth Hospital, but was returned to the Port Adelaide Police Station. Here she was initially placed again in an observation cell, but following continued distressed behaviour, Patrick was placed subsequently in a padded or isolation cell, where she remained overnight.
In the afternoon of 24 March 2006, Patrick was taken from the padded cell and ultimately handed from SAPOL custody into the custody of GSL for conveyance into the Magistrates Court.
Discrimination on the Grounds of Race; Religious Belief
Having regard to the evidence presented by Patrick, we have assumed that the alleged discrimination on the grounds of race, which at the hearing became discrimination on the grounds of religious belief, is a reference to the alleged incident where, according to Patrick, a police officer gave her a meal comprising a ham salad roll, which she was unable to eat because to do so would contrary to her tenets as a member of the Jewish faith.
For the purposes of the Equal Opportunity Act, “race”, unless the contrary intention appears, is to be read in the context of this complaint, as meaning the nationality, country of origin, colour or ancestry of Patrick. It does not include “faith” or “religion”. The Equal Opportunity Act does not prohibit discrimination on the ground of religious belief. It is not difficult to understand that a person not familiar with the detail of the Equal Opportunity Act might expect that it prohibited all forms of discrimination, but that is not the case.
It follows that we cannot consider further, any alleged discrimination on the ground of religious belief.
For the sake of completeness, in so far as it was alleged by Patrick that she had suffered discrimination on the grounds of her race, at the hands of SAPOL, we found no evidence to support the allegation. Indeed, Patrick did not assert that she was of any particular race; only that she was Jewish. This might have meant that Patrick was of Jewish ancestry or that she was an adherent of the Jewish faith or religion.
In any event, we accept the evidence of the police officers that they were not aware that Patrick was of the Jewish faith. Patrick’s contention was that they should have been aware because at the time of her arrest, she was wearing a jewellery chain with a Star of David suspended from it. However, while in some circumstances, that might have alerted someone to ask whether that meant the wearer was of Jewish ancestry or the Jewish faith, by itself it is not conclusive and undeniable evidence, that the wearer is either of Jewish ancestry or of the Jewish faith.
We are not satisfied that Patrick suffered discrimination on the ground of race.
Discrimination on the Ground of Impairment; Mental Health
With respect to the claim of discrimination on the grounds of her disability, the disability being mental illness, we understand that Patrick is alleging discrimination on the ground of impairment (s 66) in relation to services provided (s 76) by officers of SAPOL, and in consequence of which, SAPOL is vicariously liable (s 91).
For the purposes of the Equal Opportunity Act, “impairment”, unless the contrary intention appears, means intellectual impairment or physical impairment. “Intellectual impairment”, unless the contrary intention appears, means “permanent or temporary loss or imperfect development of mental faculties (except where attributable to mental illness) resulting in reduced intellectual capacity” (see s 5 (1)).
There was no evidence before us that Patrick suffers from intellectual impairment, as defined in the Equal Opportunity Act. On the contrary, Patrick presented at the hearing as a very intelligent, observant and articulate person, who was very focused on the treatment of her by officers of SAPOL. Unfortunately for her, Patrick also appears to become overwhelmed in situations that for her, are stressful. However, Patrick’s reactions to situations in which she finds herself and which for her are stressful, and sometimes generate panic attacks, do not amount to mental or intellectual impairment. In any event, there was no evidence to support this contention.
Patrick asserted discrimination on the ground of a disability being mental illness, which she described as “mental health” at the hearing. “Mental health” is clearly excluded from the definition of “intellectual impairment” in the Equal Opportunity Act. As with religious belief, the Equal Opportunity Act does not prohibit discrimination on the ground of mental health.
It follows that we cannot further consider, any allegation of discrimination on the ground of impairment or mental illness.
Discrimination on the Ground of Sexuality
The Equal Opportunity Act provides that it is unlawful for a person who offers or provides services to which the Act applies, to discriminate against another person on the ground of sexuality:
· by refusing or failing to perform the services; or
· in the terms or conditions on which or the manner in which the services are performed (s 39)
“Sexuality” includes transexuality: s 5(1). The services to which the Equal Opportunity Act applies are limited by the definition, but include:
…
(j) services provided by a government department, instrumentality or agency ....
(s 5 (1))
The services provided generally by SAPOL would fall within this category, as services provided by a government agency. However, the term “services” is not defined in the Equal Opportunity Act.
In IW v City of Perth (1997) 191 CLR 1, the High Court had to consider whether the exercise by a council (local government authority) of its discretion to refuse planning approval to an application, was a “service” in the context of the Equal Opportunity Act 1984 (WA). The majority concluded that it was not a service. The High Court, per Brennan CJ and McHugh J, articulated that it was necessary to identify with precision the nature of the service that has allegedly been refused (as in that case) and what services the alleged discriminator provides. In the course of their reasoning, the learned judges referred to the provisions of s 18 of the Interpretation Act 1984 (WA), which requires preference to be given to the construction of the provisions of an Act that would promote the purpose or object of the Act, whether or not the purpose or object is expressly stated in the Act. The equivalent in South Australian law is s 22 of the Acts Interpretation Act 1915 (SA). There is no stated object or objects in the Equal Opportunity Act (SA), but the long title of the Act appears to express the purpose and objects of the Act.
Here, as in the circumstances of IW v City of Perth, the provisions of the Equal Opportunity Act “should as far as possible be given a construction that would eliminate discrimination” on a ground addressed by the legislation. If discrimination on the basis of sexuality has occurred, the Tribunal should be slow to find that it is not within the ambit of the Equal Opportunity Act. However, in their joint judgment in IW v City of Perth, at page 12, Brennan CJ and McHugh J (who were in the majority) qualified their earlier statement, as follows:
The injunction contained in section 18 of the Interpretation Act is reinforced by the rule of construction that beneficial and remedial legislation, like the Act, is to be given a liberal construction. It is to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical". Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural. But subject to that a proviso, if the term "service", read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal, exercising jurisdiction under the Act, should hold that that activity is a "service" for the purpose of the Act.
We respectfully adopt that approach in relation to this matter. It appears to us from a plain reading of the legislation, that the effect of s 39 is to make it unlawful for a person who offers or provides services within the meaning of the Equal Opportunity Act, to discriminate on the ground of sexuality, against another person, that other person having sought to use or used, these services. A prospective complainant must have something to complain about; either the service or services were not performed for them, or the service or services were performed for them, but on terms or conditions or in a manner that was discriminatory.
Patrick was not legally represented, nor does she have legal training. It seems to us that underlying Patrick’s case is perhaps, an assertion that in arresting and holding a person in custody, SAPOL is providing a service to that person. In other words SAPOL, in carrying out the duty of holding an arrested person in custody pending a court appearance, are providing a service to the arrested person.
As identified in the English Court of Appeal judgment in Farah v Commissioner of Police of the Metropolis [1998] QB 65, police officers through the performance of their duties and the exercise of their powers, provide services to the public on behalf of the government. The nature of the services to be provided to the South Australian community by SAPOL is identified in s 5 of the Police Act 1998, as follows:
The purpose of S.A. Police is to reassure and protect the community in relation to crime and disorder by the provision of services to—
(a) uphold the law; and
(b) preserve the peace; and
(c) prevent crime; and
(d) assist the public in emergency situations; and
(e) co-ordinate and manage responses to emergencies; and
(f) regulate road use and prevent vehicle collisions.
The above is not a list of services to be provided by SAPOL. Rather it is a list of functions. Through the performance of these functions, SAPOL provides services to the South Australian community. While SAPOL provides services to the community, it cannot be said that SAPOL provides a service to each individual person who is arrested, charged and held in custody. “Service” is not to be confused with a duty that may arise out of the police function to uphold the law. Such a duty may arise when a person presents at a police station to answer a warrant of apprehension that contains an endorsement that bail is not to be granted. In carrying out their duty, SAPOL would be fulfilling one of their functions and thus providing a service to the South Australian community. It could not be said that SAPOL were providing a service to Patrick when they arrested, charged and held her in custody.
The Equal Opportunity Act establishes that it is unlawful to discriminate against a person on the ground of sexuality in the manner in which the services provided, are performed. Thus, in the broadest sense, the Act might be construed as establishing that it is unlawful for SAPOL to discriminate against a person while performing services including the function of upholding the law. Perhaps then, the basis of Patrick’s case is that while SAPOL were performing the community service of upholding the law, they unlawfully discriminated against Patrick. In this case, SAPOL were carrying out the lawful order or direction of a court, by arresting Patrick, charging and detaining her in custody until she could be taken before a court to answer the charges against her. Did SAPOL discriminate against Patrick by the manner in which they carried out their function in performance of their community services, in relation to Patrick? The question then would not be whether SAPOL were acting in a discriminatory fashion while performing a service for Patrick, but whether they discriminated against Patrick while performing services for the community.
However, the task before us is one of statutory construction. That the Equal Opportunity Act is concerned with the provision of services to the person who complains of discrimination, is evident from a plain reading of the legislation. Section 93 provides that an essential ingredient of a complaint alleging that a person has acted in contravention of the Equal Opportunity Act is that the complainant is aggrieved by the act of contravention. What is the act of contravention? In this case it must be that SAPOL either refused or failed to provide services, or in performing services for Patrick, discriminated against Patrick on the grounds of her sexuality, in the manner in which it performed those services. The services must have been services for Patrick. Any other construction would be unreasonable or unnatural. Patrick could not be a person aggrieved (and therefore entitled to make a complaint) unless she was refused or not provided with services, or the services provided to her were provided in a discriminatory manner (or on discriminatory terms or conditions), in line with the meaning of “discriminate” in s 29 of the Equal Opportunity Act. The services in respect of which the manner of performance is the subject of complaint, must have been provided to the person complaining, to attract the remedies under the Equal Opportunity Act.
We conclude that SAPOL were not offering or providing a “service” to Patrick within the meaning of the Equal Opportunity Act, at the relevant time. It follows that Patrick’s complaint against SAPOL cannot succeed.
Even if it could be said that SAPOL were offering or providing Patrick with services within the meaning of the Equal Opportunity Act, there was no evidence before us that SAPOL discriminated against Patrick on the basis of her sexuality. A number of allegations were made by Patrick. We have had the benefit of hearing evidence from Patrick and the police officers who were on duty at the relevant times, as well as viewing videotapes made as Patrick was undergoing the charging process and during Patrick’s time in the padded or isolation cell. We are satisfied that there is no basis for Patrick’s complaint that she was treated by SAPOL less favourably than SAPOL would have treated a person who is not a transsexual, in identical or similar circumstances. Patrick did not suffer discrimination on the grounds of sexuality, in the course of her arrest, charging or being held in custody by SAPOL on 23 or 24 March 2006.
Conclusion
We are not satisfied that Patrick suffered discrimination by SAPOL, on the grounds of race, impairment or sexuality.
The Complaint against SAPOL has not been made out. The Complaint will be dismissed.
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