Rae v State of New South Wales (NSW Ombudsman)

[2009] NSWADT 195

CITATION:	Rae v State of New South Wales (NSW Ombudsman) [2009] NSWADT 195
DIVISION:	Equal Opportunity Division
PARTIES:	Applicant: Darryl Rae Respondent: State of New South Wales (NSW Ombudsman)
FILE NUMBER:	081089
HEARING DATES:	30 March 2009
SUBMISSIONS CLOSED:	30 March 2009
DATE OF DECISION:	28 July 2009
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Summary dismissal, whether Ombudsman providing ‘services’ to complainants making complaints under Part 8A of Police Act 1990
LEGISLATION CITED:	Anti-Discrimination Act 1977 Ombudsman Act 1974 Police Act 1990
CASES CITED:	Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 Langley v Niland & Anor [1981] 2 NSWLR at 104 Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT 4 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 Margan v University of Technology, Sydney [2003] NSWADTAP 65 IW v City of Perth (1997) 191 CLR 1
REPRESENTATION:	Applicant Representative: In person Respondent Representative: Ms K Morgan, counsel
ORDERS:	The respondent’s application for the complaint to be dismissed is refused.

REASONS FOR DECISION

Introduction

1 Mr Rae is an indigenous man who complained to the Ombudsman about the conduct of police. He says that in dealing with that complaint, the Ombudsman discriminated against him on the ground of his race in contravention of s 19 of the Anti-Discrimination Act 1977 (AD Act). The Ombudsman has applied to the Tribunal for the complaint to be dismissed on two grounds. The first is that the President of the Anti-Discrimination Board should have declined the complaint and his failure to do so means that the Tribunal has no jurisdiction to hear it. The alternative ground for dismissal is that the complaint is either lacking in substance or does not disclose a contravention of the AD Act. Both grounds are based on a submission by the Ombudsman that neither he nor his office is providing “services” to Mr Rae when it is overseeing or reviewing complaints against police under Part 8A of the Police Act 1990. Unless the Ombudsman is providing services to Mr Rae, none of the alleged conduct can be unlawful. Section 19 of the AD Act provides that:

It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:

(a) by refusing to provide the person with those goods or services, or
(b) in the terms on which the other person is provided with those goods or services.

2 Part 8A sets out the roles and responsibilities of the Commissioner of Police, the Police Integrity Commission and the Ombudsman in relation to complaints about the conduct of police officers. Although Mr Rae submitted that his complaint to the Ombudsman was made under the Ombudsman Act 1974 and not the Police Act, the Ombudsman Act prevents a person from making a complaint about the conduct of police under that Act: Ombudsman Act 1974, s 12 and Schedule 1. While the Ombudsman may make a complaint against a police officer the subject of an investigation under the Ombudsman Act, that did not happen in this case: Police Act, s 156.

3 The issue to be determined is whether Mr Rae’s complaint should be dismissed on either of the grounds put forward by the Ombudsman.

Background

4 Mr Rae made his complaint to the President of the Anti-Discrimination Board on 7 February 2008. Neither party provided the President with copies of any of the relevant correspondence, nor did they provide any documentary evidence to the Tribunal. The failure of the Ombudsman to do so may be explained by the fact that apart from the complaint itself, a document brought into existence for the purpose of Part 8A of the Police Act is not admissible in evidence in any proceedings other than proceedings relating to the conduct of police officers or that involve review of administrative action: Police Act, s 170. The lack of documentary evidence leaves the Tribunal with the parties’ accounts of what happened. Those accounts vary significantly in some respects.

5 Mr Rae says that on 3 March 2007 he was subjected to racial abuse and assault by two police officers, Superintendent Kenny and Inspector Carey, outside the Tweed Heads Police Station. He says that a member of the public, Mr Francis, was a witness to this incident. The Ombudsman has not commented on the substance of Mr Rae’s allegations.

6 On 13 July 2007 the Ombudsman says he received a copy of a letter that Mr Rae had sent to the NSW Police Force containing particulars of the incident. Mr Rae says that he complained directly to the Ombudsman about this incident and did not write to the NSW Police Force. If I needed to make a finding about this issue I would find in favour of Mr Rae given that when hearing an application for summary dismissal, the applicant’s case is taken at its highest: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]. However, I do not need to make a finding because I am satisfied that whether or not Mr Rae complained directly to the Ombudsman, his complaint can only have been made pursuant to 8A of the Police Act. The Ombudsman’s submission was that when exercising statutory obligations pursuant that Part, he is not providing a service within the meaning of that term in the AD Act.

7 Mr Quirke from the Ombudsman’s Office handled Mr Rae’s complaint. Mr Rae says that there were some phone calls between himself and Mr Quirke in which Mr Rae told him about Mr Frances. According to Mr Rae, Mr Quirke told him that he had phoned Mr Francis. Mr Rae says he then phoned Mr Frances who denied that Mr Quirke had rung him. Mr Rae then accused Mr Quirke of lying. Mr Rae alleges that Mr Quirke then said he had not contacted Mr Frances because he was “one of Rae’s Abo mates.” Mr Rae says that Mr Frances is not indigenous and that Mr Quirke should have contacted him to obtain independent evidence about what happened on 3 March 2007. Mr Rae complained to the Ombudsman about Mr Quirke’s alleged conduct. These allegations form the basis of Mr Rae’s complaint of race discrimination.

8 Following an investigation of both Mr Quirke’s conduct and the handling by the NSW Police Force of Mr Rae’s complaints against police, no action was taken. The reason for taking no action was the Ombudsman’s view that the outcome of the police investigation of Mr Rae’s complaints was reasonable and Mr Quirke had properly overseen that investigation.

First ground for dismissal

9 Except for the powers vested in the Minister by s 95(2), proceedings in relation to complaints under the AD Act cannot be commenced directly in the Tribunal. An aggrieved person must first lodge a complaint with the President of the Anti-Discrimination Board. Section 89B empowers the President to accept a complaint or decline it on various grounds including that “no part of the conduct complained of could amount to a contravention” of the AD Act. The President accepted the complaint. The Ombudsman disagreed with that decision. The President referred the complaint to the Tribunal under s 93C. The referral of a complaint under that provision is taken to be an application for an original decision: AD Act, s 95(3).

10 It is well established that the Tribunal can determine the scope of its own jurisdiction: Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 71. The Ombudsman’s submission was that the Tribunal does not have jurisdiction because the President erred when he decided to accept the complaint for investigation. The Tribunal’s jurisdiction depends on the President of the Board referring a complaint to it pursuant to section 90B, 93A, 93B or 93C. That is clear from s 95(3) of the AD Act:

For the purposes of the Administrative Decisions Tribunal Act 1997, the referral of a complaint to the Tribunal is taken to be an application for an original decision within the meaning of that Act.

11 As the Tribunal’s jurisdiction is enlivened by the referral of a complaint by the President, the Tribunal does not lack jurisdiction even if the President accepts a complaint erroneously. This ground for dismissal has not been made out.

Second ground for dismissal

12 Introduction. The Tribunal has power to dismiss a complaint if “the complaint or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance” or if “the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision” of the AD Act: AD Act, s 92 and s 102. The Ombudsman applied for the complaint to be dismissed on either or both of these grounds. As we have said, the basis for that application was that when exercising his statutory obligations pursuant to Part 8A of the Police Act, the Ombudsman is not providing Mr Rae with a “service” within the meaning of that word in the AD Act. In our view this submission, if successful, would justify the complaint being dismissed on the ground that it does not disclose a contravention of the AD Act. It would not justify the complaint being dismissed because it lacks substance. A complaint is “misconceived” or “lacking in substance” if it can be demonstrated that there exists no factual basis for the allegations, or that the allegations lack merit: Langley v Niland & Anor [1981] 2 NSWLR at 104 at 107; Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT 4. The Ombudsman’s submissions were not based on the factual basis of Mr Rae’s allegations but rather on the nature of the activity in which he is engaged pursuant to Part 8A.

. The Tribunal should exercise its discretion to dismiss a complaint summarily with exceptional caution and only if the circumstances clearly warrant such action: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 at 129-30; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at [157] to [161]. In Margan v University of Technology, Sydney [2003] NSWADTAP 65 at [10], the Appeal Panel focused on the power of the Tribunal to dismiss a complaint which failed to disclose a contravention of the AD Act:

The failure of the complaint to disclose a contravention of the Act is analogous to the inherent and/or statutory power of courts to dismiss proceedings when the pleadings fail to show a reasonable cause of action. For example, Part 13, rule 5 of the Supreme Court Rules 1970 allows the Court to stay or dismiss proceedings where no reasonable cause of action is disclosed. The rule gives the Court a discretionary power to dismiss the plaintiff's case when it is so weak that to permit the proceedings to go to trial would be futile: Peter Kent Developments Pty Ltd v Australia & New Zealand Banking Group Ltd (SC (NSW), Hunt J, 6 May 1980, unreported). Ritchie's Supreme Court Procedure NSW (Peter Taylor SC ed, Butterworths 1984) notes at 2325 that "The test to be applied has variously been described as whether the matter is `so obviously untenable that it cannot possibly succeed', `manifestly groundless', `so manifestly faulty that it does not admit of argument', one which `the court is satisfied cannot succeed', one where under no possibility can there be a good cause of action'", or one which `would involve useless expense' ( General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129; Pannizutti v Trask (1987) 10 NSWLR 531 at 536; Rajski v Powell (1987) 11 NSWLR 522 at 524; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 942.

14 Part 8A of the Police Act

. Part 8A sets out the roles and responsibilities of the Commissioner of Police, the Ombudsman and the Police Integrity Commission in relation to complaints about the conduct of police officers. A complaint may be made to any of these public authorities: Police Act, s 127. Once a complaint has been received, Part 8A sets out the kinds of complaint that are to be investigated by that authority and the kinds of complaints that are to be referred to another authority. For example, the Ombudsman must refer any complaint he receives to the Commissioner of Police unless he is of the opinion that it is not in the public interest to do so: Police Act, 132. Consequently, the Commissioner of Police investigates the majority of complaints. When the Commissioner receives a complaint, he must notify the Ombudsman of his decision to either investigate or not to investigate the complaint: Police Act, s 139.

15 The Ombudsman may also monitor investigations carried out by the Commissioner: Police Act, s 146. Monitoring may include Ombudsman officers attending interviews between complainants and police investigators. The Commissioner must send a report of any investigation to the Ombudsman: Police Act, s 150. In addition, the Ombudsman may request the Commissioner to provide information in relation to a complaint or the investigation of a complaint: s 151 and s 152. The Ombudsman may also request that the Commissioner conduct further investigations: Police Act, s 153. Under s 154, the Ombudsman may request the Commissioner to review any decision concerning any action to be taken as a result of the investigation.

16 Ombudsman’s submissions. The Ombudsman submitted that the monitoring and review functions under Part 8A require him to act in the public interest and not in the interests of individual complainants. He said that the oversight of complaints against police is independent of both the NSW Police Force and complainants and is performed “without reference to the private interests of a complainant”. As Mr Rae’s complaint related to how an officer in the Ombudsman’s Office exercised the oversight function, the Ombudsman was not providing Mr Rae with a service as defined in the AD Act. The Ombudsman has also applied for that part of Mr Rae’s complaint to be dismissed because he submits that it is intrinsically connected to the performance of the oversight function and is not the provision of a service to Mr Rae.

17 Mr Rae’s submissions. Mr Rae’s main submission was that his complaint to the Ombudsman was not made pursuant to Part 8A. We have rejected that argument at [2] above.

Services are defined in the AD Act to include “services provided by a council or public authority”: AD Act, s 4. The Ombudsman’s office is a public authority. High Court decisions have said that beneficial and remedial legislation like the AD Act should be given a liberal construction: IW v City of Perth (1997) 191 CLR 1 at 11-12 per Brennan CJ and McHugh J. The Ombudsman relied on the High Court’s decision in IW v City of Perth (1996) 191 CLR 1. In that case the Council had refused town planning approval for premises to be used as a drop in centre for people with HIV/AIDS. A complaint was made under the Equal Opportunity Act 1994 (WA), against the Council and 15 of its members alleging discrimination on the ground of impairment in relation to the provision of services. A majority of the High Court (Dawson, Gaudron, Gummow, Toohey and Kirby JJ) decided that the Council had provided services when determining whether to grant town planning approvals. Gummow J said at 44 that:

There is no reason in logic or good sense to deny the proposition that the Council may be engaged in the provision of services, not only to the community as a whole, but also to individual applicants who invoke the exercise of the powers of the Council under the town planning law. There is no dichotomy here between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions.

19 The Ombudsman relied on the following passages from the joint judgement of Brennan CJ and McHugh J at 15 who dissented on this point:

Thus, when a council is called on as a deliberative body to exercise a statutory power or to execute a statutory duty, it may be acting directly as an arm of government rather than as a provider of services and its actions will be outside the scope of the Act. This is particularly so when councillors are acting as representatives of their constituencies in making by-laws or resolutions that will have the force of law throughout the municipality or borough. Such "legislative" acts have to be contrasted with the acts involved in making operational decisions as to whether a particular service should be provided to certain individuals or to a section of the community.

Similarly, when a council is required to act in a quasi-judicial role in exercising a statutory power or duty, it may be inappropriate to characterise the process as the provision of a service for the purpose of the Act even in cases where the product of the process is the provision of a benefit to an individual. This is likely to be the case where the council, before making a decision, is required to consider matters that affect the public interest. In such a case, the Council may be providing a "service" in a very general sense because its ratepayers ultimately benefit from the process. But that may not be sufficient to bring the process within the scope of PtIVA of the Act.

20 According to the Ombudsman, this reasoning is applicable to the performance of his functions under Part 8A of the Police Act. Given that Brennan CJ and McHugh J were in dissent on this point, his submission is not persuasive.

21 Conclusion. The NSW Ombudsman is a public authority with various statutory functions designed to ensure that government agencies, such as the Police Force, are fulfilling their responsibilities to the public. One of his statutory functions is to receive complaints from members of the public about the conduct of a government agency, including the conduct of individual police officers. Once such a complaint has been received, it is my view that the Ombudsman is providing a service to that person (within the meaning of that term in the AD Act) when responding to that complaint. The fact that the Ombudsman is an independent and impartial watchdog and has monitoring and review powers over police complaints, does not change the character of the relationship between him and the complainant. While that relationship is not the same as the relationship between a Council and a member of the public applying for town planning approval, it is analogous. In both cases, the authority is providing services both to the community as a whole and to individuals who invoke their powers.

22 Keeping in mind that a complaint should only be summarily dismissed if the circumstances clearly warrant such action, Mr Rae’s complaint should not be dismissed on the ground that the Ombudsman is not providing him with a service when responding to his complaint. I am also satisfied that if a person complains about the manner in which the complaint has been handled, the Ombudsman is also providing a service to that person when responding to that complaint. It follows that Mr Rae’s complaint should not be summarily dismissed on the ground that it does not disclose a contravention of the AD Act.

The respondent’s application for the complaint to be dismissed is refused.