Rapisarda v Commissioner of Police; Housego v Commissioner of Police; Sheehy v Commissioner of Police; McDonald v Commissioner of Police

[2019] NSWCATAD 242

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Rapisarda v Commissioner of Police; Housego v Commissioner of Police; Sheehy v Commissioner of Police; McDonald v Commissioner of Police [2019] NSWCATAD 242

Hearing dates:

10-13 October, 16 October, 21 November 2017,21,22 May, 3 August 2018

Date of orders:

29 November 2019

Decision date:

29 November 2019

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Robertson, Senior Member
Dr M Murray, General Member

Decision:

The proceedings are listed at 2pm on 10 December 2019 for the making of directions for the further conduct of the matters.

Catchwords:

HUMAN RIGHTS – Discrimination - Grounds – Sexual-orientation discrimination – Whether complaint of suspected drug use was made against applicant police officers on the ground of their homosexuality – Identification of relevant comparator – Whether officers were subjected to a detriment – Anti-Discrimination Act 1977 s 49ZG, s 49ZH

 

HUMAN RIGHTS – Legislation – Anti-Discrimination Act 1977 (NSW) – Vicarious liability – Whether Police officers “employees” for the purposes of the Act – Whether Commissioner of Police liable for discriminatory acts of Police officer – Anti-Discrimination Act 1977 s 4B, s 53

 

HUMAN RIGHTS – Legislation – Anti-Discrimination Act 1977 (NSW) – Defences – Whether Police officer under statutory obligation to lodge discriminatory complaint – Anti-Discrimination Act 1977 s 54

HUMAN RIGHTS – Discrimination – Victimisation – Whether making of complaint against Police officer and making adverse comments on application for promotion after Police officer had raised possibility that he had been the subject of discrimination constituted victimisation – Anti-Discrimination Act 1977 s 50

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)
Anti-Discrimination Amendment Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Industrial Relations Act 1996 (NSW)
Interpretation Act 1987 (NSW)
Police Act 1990 (NSW)
Police Regulation 2008 (NSW)
Statute Law (Miscellaneous Provisions) Act (No.2) 2015 (NSW)
Surveillance Devices Act 2007 (NSW)
Work Health and Safety Act 2011 (NSW)

Cases Cited:

Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47
Batchelor & Co Pty Ltd v Websdale (1963) 63 SR (NSW) 49
Beckett v State of NSW (No. 3) [2013] NSWSC 791
Bradshaw v McEwan (1951) 217 ALR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Commissioner of Police v Eaton (2013) 252 CLR 1
Commissioner of Police v Russell (2002) 55 NSWLR 232
Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379
Department of Health v Arumugan [1988] VR 319
Dilworth v Commissioner of Stamps [1899] AC 99
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Dutt v Central Coast Area Health Service [2003] NSWADTAP 3
Employment Services Australia v Poniatowska [2010] FCAFC 92
Jones v Dunkel (1959) 101 CLR 298
KLK Investments Pty Ltd v Riley (1993) 10 WAR 523
Lavery v Commissioner of Fire Brigades [2003] NSWADT 93
Little v The Commonwealth (1947) 75 CLR 94
Purvis v New South Wales (2003) 217 CLR 92
NSW Breeding and Racing Stables Pty Ltd v V & X [2005] NSWCA 114
Shellharbour Golf Club v Wheeler [1999] 46 NSWLR 253
State of New South Wales v Briggs [2016] NSWCA 344; 264 IR 309
State of Victoria v McKenna [1999] VSC 310; 140 IR 256
Trobridge v Hardy (1955) 94 CLR 147
Victims Compensation Fund v Brown (2002) 54 NSWLR 668
Waters v Public Transport Corporation (1991) 173 CLR 349
Webster v Lampard (1993) 177 CLR 598
Y Z Finance Co Pty Ltd v Cummings (1964) 109 CLR 395
Zisopoulos v Commissioner of Police [2018] NSWIRComm 1011

Texts Cited:

Pearce, DC and Geddes, RS, Statutory Interpretation in Australia, 8th ed (2014)

Category:

Principal judgment

Parties:

2017/00100954:
Steven Rapisarda (Applicant)
Commissioner of Police, NSW :Police Force (Respondent)

 

2017/00100988:
Shane Housego (Applicant)
Commissioner of Police, NSW :Police Force (Respondent)

 

2017/00101011:
Christopher Sheehy
Commissioner of Police, NSW :Police Force (Respondent)

  2017/00101021:
Christian McDonald (Applicant)
Commissioner of Police, NSW :Police Force (Respondent)

Representation:

Counsel:
B Eurell (Applicants)
J Fernon SC, M Seck (Respondents)

  Solicitors:
Dowson Turco Lawyers (Applicants)
K&L Gates (Respondents)

File Number(s):

2017/00100954; 2017/00100988; 2017/00101011, 2017/00101021

Publication restriction:

Nil

REASONS FOR DECISION   

1. The applicants each bring proceedings against the respondent Commissioner of Police alleging discrimination on the ground of homosexuality contrary to s 49ZH of the Anti-Discrimination Act 1977 (NSW) (ADA) and also, in the case of Christopher Sheehy, victimisation contrary to s 50 of the ADA.

2. The four separate applications were heard together, with evidence in each being evidence in the others. The hearing extended over nine days with oral evidence completed over six days in October and November 2017.

3. Each of the applicants gave evidence at the hearing. The respondent led evidence from a number of police officers and an unsworn administrative officer employed by the respondent. Those witnesses were, in the order in which they gave their oral evidence: Inspector Craige Hansen, Professional Standards Manager for the Central Metropolitan Region; Detective Superintendent Kerrie Lewis, Director, PSC Investigations and Field Services within the Professional Standards Command; Detective Sergeant Anthony Volpe, a detective sergeant within the Criminal Investigations team at St George Local Area Command; Detective Inspector Glen Browne, an officer attached to the Professional Standards Command, reporting to Detective Superintendent Lewis; Inspector Rebbecca Becroft, a senior officer and manager within the Police Prosecutions Command; Carol Donovan, an unsworn administrative officer employed as the Team Leader of the Drug and Alcohol Testing Unit within the Professional Standards Command; and Detective Senior Constable Martin Kiernan, an investigator attached to the Professional Standards Command, reporting to Detective Inspector Browne. The respondent also called evidence from Martin Watts, a solicitor employed by the solicitors for the respondent, to explain some schedules relating to shift rosters.

Background

4. In May 2015 each of the applicants was a Police Officer in the NSW Police Force.

5. Steven Rapisarda, Shane Housego and Christian McDonald were each Senior Constables. In 2015 Christopher Sheehy held the rank of Constable, although by August 2017 when he affirmed his affidavit for these proceedings he had been promoted to Senior Constable.

6. We have in these reasons referred to serving officers by their rank at the time of the events in question.

7. Each of Senior Constable Rapisarda, Constable Sheedy and Senior Constable McDonald were in May 2015 serving at the Newtown Local Area Command of the NSW Police Force. Senior Constable Housego was in 2015 a Senior Constable in the Central Metropolitan Region User Charges Unit.

8. Each of the applicants openly identified as homosexual. Senior Constables Rapisarda and Housego were in a domestic relationship.

9. Sergeant George Zisopoulos was the only other male Police Officer working at Newtown Local Area Command in 2015 who openly identified as homosexual. There was one female Police Officer at Newtown Local Area Command who openly identified as homosexual.

10. In 2015 Superintendent Simon Hardman was the Commander of Newtown Local Area Command.

11. On 16 April 2015 the NSW Police Drug and Alcohol Testing Unit attended Newtown to conduct random drug screening. On that occasion Constable Sheehy tested negative.

12. Sergeant Zisopoulos returned a non-negative result. Superintendent Hardman directed Sergeant Zisopoulos to provide a sample of his hair. Further testing of Sergeant Zisopoulos’ urine sample, the results of which were received on 24 April 2015, returned a negative result for prohibited drugs.

13. On 16 May 2015 the tests on Sergeant Zisopoulos’ hair sample were received and returned a positive result for the presence of prohibited drugs.

14. On or about 20 May 2015 Superintendent Hardman signed a document which became Exhibit 2 in these proceedings. Because of the significance of that document to the applicants’ case it is appropriate to set it out in full:

16 April 2015

Routine Random Drug Testing occurs at Newtown LAC.

Two x non-negative results to urine samples.

Sgt George Zisopoulos is subjected to a hair sample also.

After testing, he goes off sick.

17 April 2015

George continues his sick leave

20 & 21 April 2015

George emails himself documents re drug testing/hair samples that he has sourced from PANSW (a research paper) and from PSC (a powerpoint presentation).

21 April 2015

George confronts me and professes his innocence.

24 April 2015

Carol Donovan (PSC Drug Testing) emails all concerned that George’s “…urine specimen confirmed positive for morphine, codeine and phentermine which is consistent with the medication you stated you were taking at the time of testing.” “The hair sample…results are still outstanding.”

27 April 2015 (estimated)

Sometime around this date, it is noticed that George has shaved his head and arms. It is not known what other body parts have been shaved likewise. NB The PSC powerpoint – which appears to be a teaching aid – at slide 5 ‘The Hair Sample’, states “…the sample should be collected from the…scalp, however, if head hair is not available, alternative collection sites can be considered, including the chest, underarm, forearm or beard.”

06 May 2015

Sometime around this date (in the week or ten days following George’s shave down), it is noticed that Christian McDonald and Steven Rapisarda are also sporting extremely short hair cuts (clippered with a 2-3mm guide). Underarm, forearm and chest hair is not reported on.

Suspicion now develops that this is a deliberate action to avoid drug detection.

Further suspicion relies upon the long established close friendships between George Zisopoulos, Steven Rapisarda & his partner Shane Housego (a former NT police employee), and Christian McDonald. To a lesser extent, Christopher Sheehy and Sian Morgan complete the close knit friendship group of homosexual like-minded NT Police.

In particular, George, Steven and Christian are renowned for their behaviour when out socially together. They routinely frequent the Stonewall Hotel (Oxford Street), The Ivy (George Street) and the Beresford Hotel (Bourke Street). Surry Hills Licensing Police advise that the Stonewall is a gay venue, catering specifically to its community with events and shows. It is very well known for drug supply and drug use. The other two venues are part of Justin Hemmes’ Merrivale Group and cater for the ‘high end’ clientele, with drug supply and use rife in both venues. Surry Hills PCT has been very successful of late by targeting the Beresford Hotel, detecting ‘cocaine’ use frequently. Likewise, The Ivy is very well known for ‘Cocaine’, ‘MDMA’ and ‘Ice’.

George, Christian and Christopher are also notorious for their promiscuity. Drug use is thought to be fundamental in such indiscriminate sexual encounters.

14 May 2015

Preliminary advice is received that George’s hair sample has tested positive to illegal substances.

15 May 2015

Carol Donovan (PSC Drug Testing) provides the analysis results. In layman’s terms, it appears George has tested positive to illegal stimulants ‘Ecstasy’ and ‘Speed’ – as well as GP prescribed sedatives Valium, sleeping tablets, anti-depressant/anti-anxiety medication, sleeping pills and pain killers.

The GP prescribed medications have never been disclosed by George – contrary to the Drug and Alcohol Policy.

Experts advise that some of those sedatives are commonly used by recreational drug users, in combination with the stimulants, to prolong the ‘high’ of the stimulants (ie speed provides a 3hr high when used alone, however, when combined with a sedative, a 6hr high – albeit not as high – will be achieved).

19 May 2015

In exploring this potential conspiracy to avoid drug detection by removing their body hair, I have sourced George’s Police email transactions for the period of 01 April to 18 May inclusive from PSC; to see if any evidence exists there.

George’s 945 emails have been reviewed fully and NO direct evidence has been discovered to support the theory. 13 of the emails relate to this current matter, however, none of them are a direct exchange between these friends on the topic.

Some emails relate to George’s close friendship with Steven as they made plans to attend a dance party at the Ivy together on Good Friday, and attend the GLLO Conference in Goulburn together also.

Interestingly, both emails and internet browsing history reveal that once he had researched drug testing and hair samples, George turned his attention to job sites and possible means of alternate employment. His behaviour here is contrary to professing his innocence to me (all of which occurs at the same time).

20 May 2015

Information is received that the friendship group interacts regularly on social media sites, where they each openly display their liking for the venues previously mentioned.

Analysis of rosters indicates that George has a high frequency of requested rest days (when compared with other officers) which are usually in blocks of between 3 and 6 days.

For example: George attended the Ivy dance party on 3 April 2015. George had requested the 3-5 April as days off. It is surmised, the days off after a ‘big night out’ are sufficient to allow drug use to leave the blood, saliva and urine – thus avoiding routine drug testing detection. This is a common phenomenon among recreational drug users.

The 2015 Mardi Gras commenced on Sun 22 February. George requested 20-24 February as 5 days off. Christian requested 21 & 22 February off. Steven was on rostered days off following a block of shifts.

The majority of the Mardi Gras ‘big’ events were held between Sat 28 February and Sunday 08 March. George and Steven both took two weeks annual leave to commence, effectively, on Sat 28 February – with George returning to work on the 17th and Steven on the 19th. Christian commenced LWOP from the same point – the weekend of the 28th.

In addition, the Command has a roster request book, whereby staff can request specific days off if required. Often, individuals advise the reasoning behind their requests in that same space (eg sat/sun rest – wedding). George marks more days off than most but never offers a reason.

As an example, in April, he requested the following:

•   Fri 2/4 to Sun 5/4 off – 3 days

•   Fri 10/4 to Wed 15/4 – 6 days

•   Sat 18/4 to Sun 19/4 – 2 days

Similarly, on Fri 06 February Steven marked the request book for ‘no pm shift’, then took Sat 07 and Sun 08 off, before returning to work on Mon 09. This was contrary to the block rostering his team was on.

Steven has also had two absences whereby he swapped a shift at the eleventh hour and worked it later in the roster rather than take any form of leave to get the day off. One on the Sunday 01/02 day shift and the other on the Wed 29/4 day shift – to then run into a requested 4 days off from Thu 30/4 to Sun 03/05 inclusive.

Sick Leave analysis reveals the following:

2015	Average Sworn hh.mm	George	Steven	Christian
January	2:09	12:00	12:00	12:00
February	4:49	12:00	12:00
March	3:34	15:30	LWOP
April	3:34	12:00	LWOP
May	Projected 3:34	24:00	12:00
TOTAL	17:40	51:30	36	36

In conclusion, in my opinion, none of these things (apart from George’s test results) amount to direct evidence of drug use by the group more broadly or a conspiracy to avoid detection through the removal of body hair. At best, it is guilt by association and/or supposition based upon the anecdotal reputation of the groups’ loose morals and reckless behaviours. Their shaving down/sick leave/blocking days off could be easily explained in isolation as legitimate.

I cannot justify seeking targeted drug testing of anyone in the group.

That said, their regular attendance at licensed premises that have significant intelligence holdings for drug trade is of concern and, even in the absence of evidence, I retain a genuine concern the group is actively involved in recreational/illegal drug use.

15. The structure of the Central Metropolitan Region of the NSW Police Force (which includes Newtown Local Area Command) and the procedures applicable in 2015 for the conduct of investigations into police officer behaviour were described by Inspector Hansen.

16. The Central Metropolitan Region is one of six regions within the NSW Police Force. It is comprised of 14 Local Area Commands and a number of operational units, including the User Charges Unit.

17. Each Local Area Command has a commander at the rank of Superintendent. In addition, each Local Area Command has a Professional Standards Duty Officer who is “broadly responsible for the management of complaints about police officer conduct within their Local Area Command”.

18. Inspector Hansen noted that the conduct of investigations into police officer behaviour is the subject of detailed regulation under Part 8A of the Police Act 1990. Inspector Hansen described the legislative and administrative regime for the investigation of complaints about the conduct of police officers as follows:

Complaints in the NSW Police Force

…

16.   Prior to 1st July, 2017 …, there were three statutory bodies with the power to investigate such complaints under the Police Act 1990, namely:

(a)   the Commissioner of Police (NSW Police Force);

(b)   the NSW Ombudsman; and

(c)   the Police Integrity Commission (PIC).

17.   Generally speaking, if a complaint was made to the Commissioner of Police (or their delegate), it would be investigated by the NSW Police Force, and equally, if a complaint was made to the NSW Ombudsman, it would either be investigated by their office, or referred to the NSW Police Force for investigation. In particular circumstances, depending on the nature and gravity of the complaint, an investigation could (historically) have been undertaken by the PIC.

18.   If the Commissioner of Police is given the responsibility to triage, assess and potentially investigate a complaint, these steps were the subject of oversight by the NSW Ombudsman. Prior to 1st July, 2017, the NSW Ombudsman held detailed statutory powers to oversight complaint handling and, to intervene in a complaint being handled by the Commissioner of Police. In particular, the NSW Ombudsman had the statutory power to:

(a)   disagree with a decision by the Commissioner of Police to not investigate a complaint about police officer misconduct, and force the Commissioner of Police to conduct an investigation;

(b)   seek more information from a complainant or third parties about a complaint of misconduct against a police officer;

(c)   monitor the progress of the NSW Police Force's investigation, including observing interviews of police officers and accessing the NSW Police Force's complaint files;

(d)   directing a matter to be re-investigated if they were not satisfied that the complaint had been properly investigated; and

(e)   directing the Commissioner of Police to re-consider the action to be taken as a consequence of an investigation, if the NSW Ombudsman was not satisfied with the Commissioner of Police's decision as to any action to be taken as a consequence of the investigation.

19. The statutory provisions in Part 8A of the Police Act 1990 are supplemented by NSW Police Force policies such as the NSW Police Force Complaint Handling Guidelines, which provide a policy framework for handling internal complaint matters in a manner that is consistent with the statutory regime.

19. The NSW Police Force Complaint Handling Guidelines were annexed to Inspector Hansen’s affidavit.

20. Inspector Hansen stated that there is an expectation and obligation on all sworn police officers to come forward with any suspicions they may have about police officer misconduct. Inspector Hansen stated that that expectation is “enshrined in Point 10 of the NSW Police Force Code of Conduct and Ethics” which was also annexed to Inspector Hansen’s affidavit. Point 10 of the Code of Conduct provides:

“10   An employee of the NSW Police Force must report the misconduct of other NSW Police Force employees.

All NSW Police Force employees must report misconduct. This includes criminal offences, corrupt or unethical conduct, serious mismanagement and substantial waste of public resources. Further, employees are encouraged to challenge inappropriate behaviour.”

21. Inspector Hansen also referred to the provisions of clause 49 of the Police Regulation 2008, which required a police officer who sincerely believed that another officer had committed misconduct to report the conduct (or alleged conduct) to a more senior officer, and stated that, if an officer contravened this obligation, they would themselves face disciplinary action.

22. Inspector Hansen described the process for handling complaints as follows:

“NSW Police Force process for handling complaints

26.   Complaints about the conduct of police officers attached to LACs [Local Area Commands] within the CMR [Central Metropolitan Region] will, generally speaking, be handled by the LAC itself. Broadly speaking, the process is as follows:

(a)   a person (be it a member of the NSW Police Force or a member of the public) makes a complaint about the conduct of a police officer in writing to any employee of the NSW Police Force;

(b)   the complaint is referred to the Professional Standards Duty Officer at the LAC to which the police officer the subject of the complaint is attached. If multiple officers from multiple LACs are involved, it may be referred to the Region office;

(c) the Professional Standards Duty Officer will 'triage' the complaint. This involves reviewing the complaint and making an assessment under section 132 of the Police Act 1990 [in 2015 the relevant provision was s 139] as to whether or not the complaint does, or does not, need to be investigated;

(d)   the Professional Standards Duty Officer refers the complaint, and their recommendation as to whether or not the complaint should be investigated, to the LAC's Complaint Management Team (CMT). The CMT is a group of senior officers within the LAC that meet for the purposes of handling complaints pertaining to officers within their LAC;

(e)   the CMT will make a decision as to whether or not the complaint should be investigated. If:

(i)   a decision is made that the complaint will not be investigated;

(A)   the complainant and the Law Enforcement Conduct Commission (LECC) [in 2015 the NSW Ombudsman] must be notified; and

(B)   if the LECC [in 2015 the NSW Ombudsman] disagrees with the decision to not investigate, they will notify the Commissioner of Police, who must then cause the complaint to be investigated, or

(ii)   a decision is made that the complaint will be investigated, in which case, it will be allocated to a sworn police officer within the LAC to conduct the investigation. In cases where the LAC does not have the resources to investigate the complaint, or there is an actual or perceived risk of a conflict arising if the complaint is investigated within the LAC, then the LAC may refer the investigation to Region Professional Standards Manager for consideration of other alternatives. The other alternatives may include the investigation being conducted by another Command or Specialist Unit.

(f)   the complaint is the subject of investigation, and as a result, findings are made as to whether or not allegations made against the subject officer are sustained or not sustained. The investigating officer submits their investigation report and findings to the Professional Standards Duty Officer where it is reviewed prior to submission to the 'delegate' for ratification of the investigation and outcomes. The 'delegate' is the Commander (Superintendent) of the LAC;

(g)   the outcome of the investigation is presented to the CMT, who will then either accept or reject the certified findings of the investigation report. If the findings are rejected, the investigation is re-submitted to the investigator to address any deficiencies. If the findings are accepted, the complaint file and findings are then provided to the subject officer's Commander for final sign-off and any decision on reviewable or non-reviewable action to be taken against the subject officer (in cases where 'sustained' findings of misconduct are made).

27.   As the Professional Standards Manager (PSM) at CMR, there are various times when complaints will be referred to my office. These include:

…

(b)   where the CMT at a LAC refers the complaint to the CMR, which they may do in the interest of probity or to avoid an actual or perceived conflict of interest;

...

(d)   where the complaint relates to the Commander of the LAC, or another senior officer who may be part of the CMT at their LAC; or

(e)   where the complainant is the Commander of the LAC, as they are obliged under the statutory provisions I have referred to earlier in my affidavit to report misconduct to a more senior officer, and as Superintendents of Police, a senior officer is an officer at the rank of Assistant Commissioner or above.

28.   Where a complaint is referred to the CMR, it will ultimately be briefed to me as the Professional Standards Manager. I will then put the complaint on the agenda for the CMT at CMR to consider. The CMT at CMR is generally comprised of me, Assistant Commissioner Walton and my Executive Officer. The CMT at CMR will then endorse one of the following recommendations:

(a)   refer the complaint for investigation by a different LAC within the CMR. This could occur for many reasons, but for example, it may be so referred to assist a LAC in managing a conflict of interest;

(b)   CMR will agree to conduct the investigation internally within the CMR office. This will only occur on rare occasions, as my office has limited resources available to conduct investigations;

(c)   CMR will refer the complaint for consideration of investigation by the NSW Police Force Professional Standards Command (PSC).

29. PSC is a specialist Command whose sole focus is to uphold the professional standards of members of the NSW Police Force, including conducting independent investigations into misconduct by sworn and unsworn officers. All LACs and the CMR can issue a 'Request for Assistance' to PSC, asking them to conduct a Part 8A investigation of an allegation where this would assist the LAC or CMR in managing a conflict, or where the investigation will require resources that are not available at the LAC or CMR.”

23. Similar evidence was given by Detective Superintendent Kerrie Lewis. DS Lewis suggested that it was the triage form and not the complaint itself that would be submitted to the Complaint Management Team for consideration as to whether the complaint should be investigated.

24. The document signed by Superintendent Hardman (Exhibit 2) was forwarded by Superintendent Hardman, Inspector Michael Dykes and Inspector Damien Goodfellow to Central Metropolitan Region. Those three officers constituted the “complaint management team” at Newtown Local Area Command.

25. At Central Metropolitan Region the document was referred to Detective Superintendent Lewis who was the officer at Central Command’s complaint management team with the delegated authority to accept the “request for assistance” and investigate the complaint or to decline it and remit it to Newtown.

26. The complaint was brought before the complaint management team on 28 May 2015. Detective Superintendent Lewis gave evidence that at that meeting, the allegations made in the complaint were taken at face value (that is not subject to any enquiries to establish the veracity of the allegations) and the complaint management team made a recommendation, which she endorsed, that the complaint be investigated.

27. A complaint file was then prepared and the matter was allocated to Detective Senior Constable Martin Kiernan for investigation under the supervision of Detective Inspector Glen Browne.

28. Detective Senior Constable Kiernan was an investigator attached to the Professional Standards Command. The Professional Standards Command gave the investigation of the complaint concerning the applicants, together with a complaint relating to Sergeant Zisopoulos, the name “Strike Force Andro”.

29. DSC Kiernan gave evidence that every investigation conducted by the Professional Standards Command Complaints Management Team is given a Strike Force name.

30. DSC Kiernan obtained some advice from the Drug and Alcohol Unit of the Professional Standards Command, who are responsible for co-ordinating random and targeted drug testing of Police Officers in New South Wales, about the type of drug testing they could undertake.

31. DSC Kiernan took no further action until mid-September 2015. He explained that delay on the basis that the only line of enquiry worth pursuing was drug testing and by reason of the suggestion that Senior Constables Rapisarda and McDonald had cut their hair short, he wished to leave time for their hair to re-grow in order that hair samples could be taken if that proved appropriate.

32. In September 2015 DSC Kiernan obtained the upcoming rosters for Newtown Local Area Command and the Central Metropolitan Region User Charges Unit.

33. DSC Kiernan approached Ms Carol Donovan at the Drug and Alcohol Unit and asked if random drug testing could be conducted at the relevant locations on one of a range of dates which DSC Kiernan had identified as being dates on which each of the applicants was rostered to perform duties at their respective Commands. Ms Donovan provided information concerning testing which had been undertaken, from which DSC Kiernan ascertained that Senior Constable McDonald had been tested at Newtown Police Station in August 2015 and returned a negative result. DSC Kiernan asked Ms Donovan to arrange testing at Newtown Police Station on 5 October 2015, when DSC Kiernan had identified that Senior Constable Rapisarda and Constable Sheehy were rostered on duty.

34. On 5 October 2015 random drug testing was undertaken at Newtown Police Station and both Senior Constable Rapisarda and Constable Sheehy were tested. Both returned negative results.

35. On 8 October 2015 DSC Kiernan asked Ms Donovan to arrange for random testing to occur at Central Metropolitan Region User Charges Unit. Senior Constable Housego was tested and returned a negative result.

36. DSC Kiernan took the view that this testing was sufficient to finalise his investigation and informed Detective Inspector Browne of that conclusion. Detective Inspector Browne agreed. Detective Inspector Browne informed DSC Kiernan that as a matter of procedural fairness he should advise the subject officers of the investigation.

37. DSC Kiernan contacted Senior Constable Rapisarda on 16 November 2015 and informed him of the investigation and that it was proposed that the allegation made against him would not be sustained.

38. On 17 November 2015 DSC Kiernan separately called Senior Constable Housego and Constable Sheehy to inform them of the allegation against them and the proposed not sustained finding in respect of the allegation.

39. On 3 December 2015 DSC Kiernan called Senior Constable McDonald and informed him of the allegation that had been made and the proposed not sustained finding.

40. DSC Kiernan finalised his investigation reports on 30 December 2015 and recorded a finding that the allegations against each of the applicants had not been sustained. The investigation reports were duly endorsed by Detective Inspector Browne, Detective Superintendent Lewis and the Professional Standards Command Complaints Management Team.

41. On 18 November 2015 Constable Sheehy had a meeting with Superintendent Hardman at which Constable Sheehy raised the fact that he had become aware a complaint had been made against him. Constable Sheehy gave evidence that he was told by Superintendent Hardman that it was an anonymous complaint. Constable Sheehy said to Superintendent Hardman “I would hate to think this is because I am gay and have been seen in the same light as George. I hardly drink and I don’t take drugs.”

42. In December 2015 the applicants spoke to one another and identified that they had each been subject to the investigation. The applicants sought access to the investigation file but it was not provided.

43. After the commencement of these proceedings and after applications were made by the applicants under the Government Information (Public Access) Act 2009 (NSW), the applicants received a copy of Exhibit 2 with Detective Superintendent Hardman’s signature redacted. It was only on the second day of the hearing that the identity of Superintendent Hardman as the author of Exhibit 2 was disclosed to the applicants (although it may be surmised that the applicants had already anticipated that Superintendent Hardman was the author of the document).

44. In November and December 2015 each of the applicants took sick leave and submitted Workcover certificates.

45. On 13 January 2016 Constable Sheehy prepared and signed a statement for use in relation to a workers compensation claim in which he set out the conversation he had had with Superintendent Hardman on 18 November 2015.

46. On 14 January 2016 Superintendent Hardman submitted a complaint to Professional Standards Command alleging breach of the Surveillance Devices Act 2007 (NSW) by Constable Sheehy. Superintendent Hardman asserted that, in the course of the investigation of Constable Sheehy’s workers compensation claim, an investigator, Ms Lynskey, had spoken to Superintendent Hardman concerning the investigation and had asked “Is it legal for Police officers to record each others’ conversations?” Superintendent Hardman recorded that Ms Lynskey had explained that:

“While interviewing Christopher Sheehy, that morning, he had provided very accurate quotes by making reference to tape recorded conversations that he had stored in his mobile telephone handset. He did so when speaking of Inspector Macey and an incident of up to 18 months (or more) ago. He also did so when speaking of me [Superintendent Hardman] and a meeting we had in November 2015.”

47. In the complaint of 14 January 2016 (which became Exhibit 3) Superintendent Hardman made the allegation that Constable Sheehy had used his telephone to record private conversations with Superintendent Hardman on 18 November 2015 and that Constable Sheehy had referred to that recording when providing a statement to Ms Lynskey on 13 January 2016.

48. The investigation of that complaint was accepted by the Complaints Management Team and the investigation was allocated to Detective Sergeant Anthony Volpe, an officer attached to St George Local Area Command.

49. On 16 February 2016 DS Volpe contacted Ms Lynskey and on 17 February 2017 conducted a formal interview with Ms Lynskey as part of his investigation. As recorded in DS Volpe’s Investigator’s Report:

“Ms Lynskey stated categorically that at no time was an audio recording played back in her presence. For certain comments the interviewee [Constable Sheehy] looked at his phone and appeared to read directly from it, but at no stage did she hear any audio being emitted from it.”

DS Volpe found the complaint not sustained.

50. Constable Sheehy was informed of that outcome on 2 April 2016.

51. In January 2016 the applicants consulted a solicitor, Mr Stewart of Dowson Turco, Lawyers. Thereafter, in correspondence with Mr Reid of the Office of General Counsel, NSW Police, Dowson Turco raised the suggestion that there may have been breaches of the Anti-Discrimination Act 1977 (NSW).

52. In particular, in a letter dated 29 April 2016 enclosing applications by the applicants for the disclosure of information pursuant to the Government Information (Public Access) Act 2009 (NSW), Mr Stewart referred to previous correspondence and stated:

“In that correspondence we have raised our clients’ various concerns about possible maladministration by Superintendent Simon Hardman while in the position of Commander at Newtown Local Area Command. Those concerns appear particularised, inter alia, as breaches of the Work Health and Safety Act 2011 and Anti-Discrimination Act 1977.

Those potential breaches concern the improper use of public resources to systematically target our clients because of their sexual orientation.”

53. Mr Stewart further stated:

“In the interests of abundant clarity our clients are concerned that public resources were inappropriately, and perhaps even unlawfully, expended in pursuit of a falsehood which stems from a discriminatory allegation made by Superintendent Hardman.”

54. Mr Stewart asked that Mr Reid provide “the list of actions that have been taken to investigate the serious concerns brought to your attention”.

55. The Office of General Counsel took the view that the letter of 29 April constituted a complaint in writing of alleged misconduct against Superintendent Hardman and referred the letter to Inspector Craige Hansen, the Professional Standards Manager for the Central Metropolitan Region. Inspector Hansen undertook a process of triaging the complaint and concluded that an investigation of the complaint was not required or warranted. The Complaints Management Team responsible for the complaint comprised Inspector Hansen, then Assistant Commissioner Fuller and an Executive Officer. Inspector Hansen gave evidence that he prepared a draft letter advising that the complaint had been triaged but declined for investigation and that letter was signed by Assistant Commissioner Fuller on 24 May 2016.

56. That letter set out extracts from Mr Stewart’s letter of 29 April 2016 and concluded:

“With regard to your complaint issues against Superintendent Hardman:

Discrimination of L/S/Con Rapisarda as a result of his sexual orientation;

Discrimination of Con Sheehy as a result of his sexual orientation; Discrimination of S/Con Housego as a result of his sexual orientation; Discrimination of “former” S/Con McDonald as a result of his sexual orientation;

Possible maladministration, including the improper use of public resources.

All of these matters have been declined pursuant to section 141(1)(a). I am satisfied that the complaint investigations P1501954 and P1600351 were appropriate in the circumstances and each have been subject to various review upon finalisation.

I understand that you have also been instructed to pursue other avenues, such as Government Information (Public Access) Act (GIPAA) applications.

57. As in force in 2016, section 141(1)(a) of the Police Act 1990 (NSW) provided that:

“In deciding whether a complaint should be, or does not need to be, investigated, the Commissioner or Ombudsman may have regard to such matters as he or she thinks fit, including whether, in his or her opinion:

1. Action has been, is being or will be taken to remedy the subject matter of the complaint without the need for an investigation.”

58. On 22 February 2016 Constable Sheehy applied to be considered for the prosecutions command in the NSW Police Force. This involved an application to undertake the prosecutor’s education programme. Senior Constable Sheehy gave evidence that on 3 May 2016 he attended a panel interview for consideration for entry into the programme. He was not successful.

59. At this time Constable Sheehy was working at Eastern Beaches Local Area Command having just returned to work from sick leave. On Constable Sheehy’s application, Acting Sergeant Northam, his team leader, recorded “Application supported. Appears to be a suitable candidate.” Under that comment Superintendent Hardman wrote: “Sheehy started at Eastern Beaches on 15.02. One week later this comment is offered by an A/Sgt?!”

60. The form provided for Superintendent Hardman to provide his own comments as Constable Sheehy’s commander. Superintendent Hardman stated:

“Const Sheehy has 3 yrs 10 mths service, all at Newtown, predominantly in GD’s [general duties] with some PCT rotation [Pro-active Crime Team]. At best, I would describe him as an ‘average’ performer. Recent sick leave, for a psychological illness, and his current return to work program demonstrates a considerable lack of resilience. In current circumstances, I do not support this application and I do not recommend him to you.”

61. Constable Sheehy asserts that his lack of success in this application was a consequence of the two complaints against him and Superintendent Hardman’s adverse comments. This was alleged to constitute victimisation of Constable Sheehy by Superintendent Hardman by reason of the fact that Constable Sheehy had raised the possibility that complaints had been made against him because he was homosexual.

The Applicants’ complaints

62. On 22 September 2016 Mr Stewart on behalf of each of the applicants lodged a complaint of homosexual discrimination under section 49ZH(2)(c) of the ADA with the President of the NSW Anti-Discrimination Board. Mr Stewart attached to the complaint a factual statement of each of the applicants. The factual statements are generally consistent with their affidavits filed in these proceedings.

63. On 28 March 2017 the President referred the complaint to the Tribunal for public hearing under section 93C of the ADA on the basis that she had “endeavoured to resolve the complaint by conciliation but conciliation has not been successful”.

64. In accordance with directions of the Tribunal, the applicants filed Points of Claim on 24 May 2017 and the respondent filed Points of Defence on 25 September 2017. The respondent by leave filed Amended Points of Defence at the hearing.

The Points of Claim

65. By the Points of Claim the applicants raise three discrete allegations of discrimination. The first complaint is:

9.   The Applicants claim they were targeted for investigation, including drug testing and other measures known as Operation “Andro” because they are homosexual men (the drug investigation).

10. The Applicants claim that the Respondent discriminated against them within the meaning of discrimination on the ground of homosexuality set out in s.49ZG of the Anti-Discrimination Act 1977 (NSW) (the Act).

11. The Applicants claim that the Respondent’s drug investigation contravened s.49ZH of the Act because, on the ground of homosexuality the Respondent:

(a)   failed to afford them a safe workplace;

(b)   concocted criminal allegations against them;

(c)   fabricated evidence against them;

(d)   targeted them for investigation;

(e)   exposed them to ridicule, abuse, bullying and harassment;

(f)   injured the Applicants’ access to opportunities for promotion, transfer or training, or to any other benefits associated with employment; and

(g)   otherwise subjected the Applicants to a detriment.

66. The second complaint alleged that Constable Sheehy was victimised in contravention of s 50 of the ADA because of his request for information about the drug investigation, including requests for information about the grounds for the investigation.

67. In paragraph 13 of the Points of Claim, Constable Sheehy alleged that:

Sheehy claims that the victimisation was in the form of complaints being generated against him while he was on leave and as a consequence of Sheehy alleging discrimination or as a consequence of the Respondent suspecting that Sheehy intended to make a formal complaint of discrimination including starting legal proceedings against the Respondent. Sheehy claims the Respondent contravened s 50 of the Act in this regard.

68. The third discrimination claim by all the applicants is that the respondent’s conduct in refusing to investigate their original complaint that they had been the subject of discrimination, constituted by the letters Mr Stewart sent to the respondent in the period leading up to 23 May 2016 and by the letter of 23 May 2016, was discrimination on the ground of homosexuality contrary to s 49ZG of the ADA and was a contravention of s 49ZH of the ADA because “on the ground of homosexuality the respondent discriminated in relation to the terms and conditions of the employment it afforded the applicants and subjected the applicants to a detriment”.

Clarification of the First Complaint

69. It is convenient at this point to address one issue concerning the nature of the first complaint that arose in the course of oral submissions.

70. In particulars provided in respect of the first discrimination complaint the applicants stated that Superintendent Hardman had made homophobic remarks and comments in the lead up and following the drug testing and investigation.

71. In their evidence before the Tribunal each of the applicants gave evidence of conduct by other officers that they suggested demonstrated that there was a homophobic culture at Newtown Local Area Command under Superintendent Hardman.

72. Senior Constable Rapisarda stated that he overheard officers talking about victims and offenders, referring to them as “gay cunts”, “faggot”, “lezzo”. He described an incident in 2013 when a male victim came to the station to report being assaulted and who was effeminate and was crying. Senior Constable Rapisarda described other officers mimicking the victim’s voice and laughing.

73. Senior Constable Rapisarda also gave evidence that Inspector Dykes said things to him in front of other Police officers such as “hurry up Rapisarda, get your skirt on” and “you big girl”. Senior Constable Rapisarda suggested Inspector Dykes would speak to him in an effeminate tone “mimicking an homosexual stereotype”.

74. Senior Constable Rapisarda described another occasion in 2014 in which Inspector Dykes said to him in relation to the execution of a search warrant “The bloke is one of your kind. They’ve got him for a whole lot of child porn.” When asked by Senior Constable Rapisarda “What do you mean one of my kind?” Senior Constable Rapisarda alleged Inspector Dykes responded “You know, he’s gay”.

75. Constable Sheehy gave evidence that the common terminology and phrases used around the station included “faggot”, “poofter”, “gay cunt”, “gay as AIDS”, “homo”, “hommus” and “eat a dick”. Constable Sheehy also stated that he heard Police colleagues and officers and senior management “make derogatory and insensitive remarks regarding members of the [LGBTQI] community, particularly towards trans-gender persons, cross-dressing persons and homosexuals”. Constable Sheehy stated that Newtown Police officers would avoid attending the Imperial Hotel in Erskineville because it is known as an LBGTQI friendly bar, making statements such as that they didn’t want to go because there are always “trannies” and “guys in arseless chaps”.

76. Constable Sheehy stated that he had been rostered to assist GLLOs (gay and lesbian liaison officers) in responding to protests concerning an incident involving a trans-gender female notwithstanding that he was not GLLO- trained. He asserted that he was directed to undertake the task because he was gay.

77. Constable Sheehy also gave evidence of Inspector Macey speaking dismissively of Senior Constable McDonald’s manner of speech.

78. Senior Constable McDonald gave evidence that he had experienced homosexual harassment and prejudice at Newtown Police Station. In particular he identified incidents involving Superintendent Hardman:

1. On one occasion Superintendent Hardman used the word “pansy” in referring to Senior Constable McDonald when speaking to other people.

2. In 2012 Superintendent Hardman when referring to a request by Senior Constable McDonald to assist with the “Splendour in the Grass” music festival had said words to the effect “splendour in your arse”.

3. When Senior Constable McDonald had injured himself falling over in the dark on the way to work, Superintendent Hardman had said “you should be used to having your head down arse up in the concrete”.

79. Senior Constable McDonald also asserted that Inspector Dykes had made “daily negative comments about gays and the gay community, bullying in the form of embarrassing me in front of my colleagues and using my sexuality to make fun of me”.

80. Senior Constable McDonald gave evidence that in 2015 Inspector Dykes said to him, in expressing his opposition to same sex marriage, “It disgusts me and it will never be OK”.

81. Senior Constable Housego was posted at Newtown Local Area Command between May 2007 and October 2012. He gave evidence that he also heard derogatory comments such as “poof” and “faggot” uttered by Police at Newtown Police station in 2012 and described one incident in which another officer had stated in relation to a gay complainant reporting a gay domestic violence assault “I told him to pull his head in and work it out man to man. I sent him away without taking a report”.

82. In their written submissions the applicants sought to describe their complaints as follows:

10. In respect to s.49ZH(2)(a) of the Act, an employer owes a duty to take reasonable care to ensure the safety of its employees. That duty is implied into every contract of employment, and bullying and harassment is recognised as a particular hazard that an employer has a duty to minimise [citing Waters v Commissioner of Police [2000] 1 WLR 1607]. Where an employer is aware of a danger that another employee might post to fellow employees, and the employer does not do anything about the activities, the employer is in further breach of the duty [citing Hudson v Ridge Manufacturing Company Limited [1957] 2 All ER 229].

11. In respect of s.49ZH of the Act, the Applicants contend that the Respondent failed to afford them with access to a safe workplace and access to a safe system of work that was free from bullying and harassment; and/or denied them access to training, transfer and promotion because of the Applicants’ homosexuality; and, in the case of the applicant McDonald, constructively dismissed him from his employment. The Applicants contend that these failures were the result of their sexual orientation as homosexual men.

12.   The Applicants further contend that the Respondent encouraged or condoned a culture of bullying and harassment that ultimately gave rise to:

A.   within the first complaint of discrimination the actions of:

(i)   Superintendent Hardman, in making the Complaint and then assessing, triaging and escalating the Complaint to the CMR;

(ii)   Inspectors Goodfellow and Dykes, who signed off on the assessment, triaging and escalation of the Complaint to the CMR;

(iii)   (then) Assistant Commissioner Fuller, the then Commander of the CMR, who authorised and approved the Complaint for investigation; and

(iv)   the PSC who conducted the investigation of the Complaint, including in a discriminatory manner.

B.   within the second complaint of discrimination, that the Respondent, primarily through the actions of (then) Assistant Commissioner Fuller, failed to take appropriate action to investigate and remedy the bullying and harassment subject of the first complaint of discrimination, despite being aware that the investigation had been proceeded from the bigotry that is explicitly recorded in the written Complaint [see Exhibit 2].

13. In respect of s.49ZG(1) of the Act, the Applicants contend that the Respondent discriminated against each of them by treating them less favourably than their heterosexual colleagues who: were not bullied or harassed by reason of their sexuality (including by neither being targeted for false allegations of drug use, nor being investigated in a manner that departed from standard investigatory practice): and, who would not have been ignored and/or victimised if they reported the alleged misconduct.

83. The respondent submitted that the claim as so elucidated is a new case not incorporated within the Points of Claim. The respondent also submitted that the complaint referred by the President of the Anti-Discrimination Board to the Tribunal under s 95 of the ADA defines the jurisdiction of the Tribunal. The respondent submitted that the complaint referred by the President in the case of each of the applicants was in respect of the specific period from 15 May 2015 onwards, that is after the incidents of homophobic conduct referred to in the applicants’ affidavits.

84. The respondent further submitted that in any event “the conduct alleged in the affidavits of the applicants refers to a series of isolated incidents but do not demonstrate a regular pattern of conduct that could properly be characterised as ‘bullying’”.

85. The applicants submitted in reply that the Points of Claim do include an allegation that the respondent failed to afford a safe workplace and exposed them to ridicule, abuse, bullying and harassment and submit that:

“The applicants’ evidence, upon which the above particulars are based, was also filed and served well in advance of the hearings. In the applicants’ submission the particulars and evidence served on the respondent sufficiently detailed the claims addressed in the Outline of Closing Submissions such that there has been no reformulation of their case.”

86. We accept the respondent’s submission that the case as outlined in paragraphs 10 to 13 of the applicants’ outline of submissions is not one encapsulated within the Points of Claim. As the respondent points out, the Points of Claim do not contain allegations that the respondent encouraged or condoned a culture of bullying and harassment. Moreover, the allegations in the Points of Claim that the respondent failed to accord a safe workplace and exposed the applicants to ridicule, abuse, bullying and harassment are specifically said to arise from the drug investigation.

87. The purpose of Points of Claim in the Tribunal is, as with pleadings in a Court, to define the issues so that the parties understand in advance of the hearing the case they are expected to meet. To permit the applicants to raise a case not fairly encapsulated within the Points of Claim would not be fair to the respondent and we will not consider the applicant’s case outlined in paragraphs 10-13 of the applicant’s outline of submissions.

88. In any event, we also accept the respondent’s submission that the conduct outlined in the applicants’ various affidavits does not establish the existence of a culture of bullying and harassment of the applicants, or any of them individually, on the basis of their homosexuality. The evidence as outlined above referred to isolated incidents over a number of years and, whilst not to be condoned, it cannot in our view amount to unlawful discrimination by the respondent on the grounds of homosexuality contrary to ss 49ZG and 49ZH of the ADA.

89. Mr Eurell of counsel, who appeared for the applicants, sought to rely on the examples of homophobic conduct on the part of other officers identified in the applicants’ affidavits as evidence of the circumstances in which Superintendent Hardman prepared and submitted the complaint (Exhibit 2) and as evidence of prejudice against the applicants by reason of their homosexuality, on the part of Superintendent Hardman. We will address the evidence in that context in due course when we come to consider whether Superintendent Hardman’s act of submitting the complaint was carried out on the ground of the applicants’ homosexuality.

90. We note that only three incidents the subject of evidence by Senior Constable McDonald specifically involved Superintendent Hardman. None of the other incidents of which the applicants gave evidence involved conduct of Superintendent Hardman, nor was he said to have been present at the time of the incidents or shown to have been aware of them.

The Respondent’s Defence

91. The respondent raised a number of matters by way of defence to the applicants’ claim. As summarised in paragraph 9 of the respondent’s submissions they were:

9.   In summary:

(a)   In relation to both the First Discrimination Claim and Further Discrimination Claim [1] :

1. The claim we have referred to above as the third discrimination claim.

(i) the Applicants have not identified a comparator (whether real or hypothetical) in the same circumstances or in not materially different circumstances such as to enable any demonstration that they were treated “less favourably” within the meaning of s 49ZG(1) of the AD Act;

(ii)   the Applicants have not been treated “less favourably”;

(iii)   the Applicants have not shown that the Respondent has treated them less favourably on the ground of homosexuality;

(iv)   the things complained of by the Applicants do not concern employment in the NSW Police Force, which has the consequence, given s 4B of the AD Act, that the Respondent is not to be taken to have determined or done anything complained of by the Applicants.

(b)   in relation to the Further Discrimination Claim, at the time of making the complaint, Mr McDonald had ceased employment;

(c)   in relation to the Victimisation Claim:

(i) Mr Sheehy’s “requests for information about the drug investigation, including the grounds for the investigation” is not a ground upon which a person may be victimised under s 50(1) of the AD Act.

(ii) Mr Sheehy had not done any act within the meaning of s 50(1) of the AD Act;

(iii)   Mr Sheehy has not been subjected to any detriment;

(iv) Mr Sheehy has not been subjected to any detriment on a ground in s 50(1);

(d) the Respondent did not, for the purposes of ss 4B(2) and 53(1) of the AD Act, “authorise” the acts of Superintendent Simon Hardman or other relevant police officers alleged to have engaged in unlawful acts;

(e) the making of the complaints comprised in Exhibit 2 and Exhibit 3 [the complaint against Constable Sheehy regarding the alleged use of a recording device] is not behaviour that is unlawful pursuant to s 54 of the AD Act because the complaints were necessary for compliance with cl 49 of the Police Regulation 2008 (NSW) (as in force at the time Exhibit 2 was created) and cl 50 of the Police Regulation 2015 (NSW) (as in force at the time Exhibit 3 was created);

(f) even if the Respondent has engaged in unlawful discrimination or victimisation, by s 213 of the Police Act 1990 (NSW) (Police Act), the Respondent is not liable for any injury or damage caused to the Applicants because each of the matters complained of was an act of a member of the NSW Police Force, in good faith, of a function conferred or imposed by the Police Act; and

(g)   the Applicants have not shown that they have suffered any damage.

92. It is convenient to address the complaints by reference to the issues identified in the Points of Defence.

93. However, before we do so, it is appropriate to deal with two matters which arose in the course of the hearing.

The Operation of Part 8A of the Police Act

94. As we have noted above, the conduct of investigations into police officer behaviour is regulated by Part 8A of the Police Act. Part 8A, consisting of sections 121 – 172, is headed “Complaints about conduct of police officers, administrative employees and the NSW Police Force”. It is necessary to take note of two specific provisions in part 8A of the Police Act, the operation of which affected the conduct of these proceedings.

95. Section 169A of the Police Act provides:

169A   Identity of complainant not to be disclosed

A member of the NSW Police Force must not disclose to any person the identity of a complainant unless the disclosure is made:

(a)   In accordance with guidelines established by the Commissioner, or

(b)   with the consent of the complainant, or

(c)   in accordance with a requirement of or made under this or any other Act, or

(d)   for the purposes of any legal proceedings before a court or tribunal.

96. Section 170 of the Police Act provides:

170 Certain documents privileged

(1)   A document brought into existence for the purposes of this Part is not admissible in evidence in any proceedings other than proceedings:

(a)   that concern the conduct of police officers, and

(b)   that are dealt with by the Commissioner, by the Industrial Relations Commission or by the Supreme Court in the exercise of its jurisdiction to review administrative action.

(2)   Subsection (1) does not apply to or in respect of:

(a)   a document comprising a complaint, or

(b)   a document published by order of, or under the authority of, the Presiding Officer of a House of Parliament or either House, or both Houses, of Parliament, or

(c)   a document that a witness is willing to produce.

(3)   Subsections (1) and (2) do not operate to render admissible in evidence in any proceedings any document that would not have been so admissible if this section had not been enacted.

328. The consequences of the discrimination against each of the applicants included the subsequent investigation of the complaint, the notification of each of the applicants of the existence of the complaint and the recording of the complaint and the fact that it had not been upheld on each of the applicants’ complaint history.

329. The remedies for unlawful discrimination which the Tribunal may grant are set out in s 108(2) of the ADA which provides:

(2)   If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following—

(a)   except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,

(b)   make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,

(c)   except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,

(d)   order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),

(e)   in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,

(f)   make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations,

(g)   decline to take any further action in the matter.

331. Each of the applicants gave evidence of the distress they had experienced upon learning of the complaint. However the applicants did not lead detailed evidence of the losses which they claim to have suffered.

332. In the course of final submissions Mr Eurell indicated that, if successful, the applicants would seek to lead further evidence to establish actual economic loss flowing from the less favourable treatment. Mr Fernon opposed that course. Mr Eurell indicated that he had understood that the quantification of damages, in the event the applicants succeeded, was to be separately determined. Mr Fernon pointed to the transcript of a directions hearing held before Deputy President Hennessy on 4 July 2017 at which the question of particularisation of loss was canvassed. Senior counsel then appearing for the applicants stated, in response to a request for particulars of loss claimed by Senior Constable McDonald:

“Certainly that is the kind of material that must be in our affidavit evidence or our statement evidence, and that’s the appropriate time for the detailed articulation of how the loss is conceived and calculated.”

333. The Deputy President decided that the applicants should not be required to amend their points of claim but noted:

“I do request that, when the evidence is put on, it’s made clear as to exactly what his claims are by way of remedy.”

334. We indicated at that time that we would not foreclose Mr Eurell from making application to lead further evidence of loss in the event the applicants were successful. Accordingly we do not at this stage seek to address the question whether the applicants did in fact sustain any specific loss beyond the distress which we accept they experienced. The proceedings will need to be relisted to enable the applicants to make application, if so advised, to lead that further evidence and we expect that at that time the circumstances leading to that evidence not being led at the initial hearing will be fully explained.

335. We have not heard submissions concerning what remedy other than damages would be appropriate, or what damages might be awarded in the absence of specific evidence of loss, and we will receive such submissions at the further hearing of the matters.

Orders

336. Our orders are:

1. The proceedings are listed at 2pm on 10 December 2019 for the making of directions for the further conduct of the matters.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

Endnote

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 29 November 2019