Rasmussen v State of NSW, NSW Police Force

[2013] NSWADT 277

Administrative Decisions Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Rasmussen v State of NSW, NSW Police Force [2013] NSWADT 277
Hearing dates:	3 September 2013
Decision date:	03 December 2013
Jurisdiction:	Equal Opportunity Division
Before:	A Scahill, Judicial member N Hiffernan, Non-Judicial member B Field, Non-Judicial member
Decision:	Application Dismissed
Legislation Cited:	Administrative Decisions Tribunal Act Anti-Discrimination Act Law Enforcement Powers and Responsibilities Act 2002 Law Enforcement Powers and Responsibilities Regulation 2005 Police Act 1990
Cases Cited:	Alchin v Rail Corporation NSW [2012] NSWADT 142 Commissioner of Police v Estate of Russell [2001] NSWSC 745 IW v City of Perth [1997] HCA 30; 191 CLR 1 Mariani v NSW Police Force State of NSW [2013] NSWADT 35 Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 Turner v State Transit Authority & anor [2004] NSWADT 89 Waters v Public Transport Corporation] [1991] HCA 49; 173 CLR 349.
Category:	Principal judgment
Parties:	Shaye Rasmussen (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel Ms Dinnen (Respondent) S Rasmussen (Applicant in person) Norton Rose Fulbright (Respondent)
File Number(s):	131009

REASONS FOR DECISION

Background

1. On 4 June 2012 Ms Shaye Rasmussen complained to the President of the Anti-Discrimination Board (ADB) that she had been discriminated against on the grounds of her transgender status in the provision of services to her by an officer of the NSW Police. Ms Rasmussen's complaint to the ADB specifically named Senior Constable William Naughton.

1. The complaint arose out of events which occurred on 18 January 2012 at the home Ms Rasmussen shares with her mother and 2 brothers in Chain Valley Bay North on the NSW Central Coast.

1. In short, the Police had attended the home early in the morning after a dispute between Ms Rasmussen and her brother David Morrison. Ms Rasmussen was arrested; taken to the Police Station; charged and bailed. Ms Rasmussen subsequently pleaded guilty to charges of assaulting David Morrison and assaulting a Police officer while in execution of his duty.

1. Ms Rasmussen then complained that she was treated less favourably by the attending and arresting Police, during her transport to the Police station and once she was at the Police station. Ms Rasmussen complained that she had been treated less favourably on the grounds of her transgender status in the provision of services to her.

Procedural matters

1. The parties had been advised that the matter was listed for hearing commencing at 10.00am on Tuesday, 3 September 2013. By 11:15 am there was no appearance from the Applicant and the Tribunal Registry had been unable to contact the Applicant directly.

1. The Tribunal dismissed the matter under section 73 (5) (g) (iii) of the Administrative Decisions Tribunal Act (ADTA) as "the applicant had failed to appear in the proceedings". The Respondent also made an application for costs of the prior day's preparation and the day's hearing lost.

1. The Tribunal dismissed the matter and undertook to advise the Applicant of the dismissal and seek submissions from the Applicant on the costs application.

1. Shortly afterwards the Applicant arrived at the Tribunal and the Tribunal reconvened. The Applicant's application under section 73 (5) (h) of the Administrative Decisions Tribunal Act to have the matter reinstated was opposed by the Respondent.

1. At the same time the Respondent also sought to have the matter dismissed under section 73 (5) (g) (ii) on the basis that it was "misconceived".

Reinstatement of Dismissed Proceedings

1. Having heard evidence from both Senior Constable Naughton and the Applicant on the issue of the accessibility of the Applicant's home to public transport, the Tribunal determined to reinstate the proceedings under section 73 (5) (h) of the Administrative Decisions Tribunal Act. The Tribunal accepted the Applicant's explanation that she had advised the Tribunal that it was difficult to meet a 10.00am start; an expected early morning lift from her home had fallen through; that there were poor transport options from her area and that she was travelling with her mother, a witness in the matter, who had difficulty walking long distances.

Procedure at Hearing

1. The Applicant represented herself at the hearing. The Respondent was represented by Counsel. The Tribunal accepted the President of the ADB's report which accompanied the referral of the matter to the Tribunal. This contained the Applicant's original complaint and subsequent statements from the Applicant and the Applicant's mother, Ms Amelia Morrison - setting out accounts of the events. The President's Report also included statements from the Police officers involved in the events as well as a submissions on 2nd August and 12 December 2012 from the Respondent. These submissions dealt with both the factual matters and the relevant law. The Respondent had submitted to the President of the ADB that

• there had been no provision of services to the Applicant by the Police;
• the Applicant had been dealt with by the Respondent as any other person would have been based on the particular facts; and
• no evidence had been provided by the Applicant that she had been treated less favourably on the ground of her transgender status.

On these bases the Respondent had submitted to the President of the ADB that the complaint should be declined or dismissed as it was lacking in substance and/or misconceived.

The President had however referred the matter to the ADT on 13 February 2013 under section 93C of the ADA as he was of the opinion it could not be conciliated.

The Respondent's submissions

1. At the beginning of the hearing, the Respondent again made submissions - this time oral - that the Application should be dismissed as "misconceived". The basis for this was that the Police had not been providing services to the Applicant under section 38M of the Anti-Discrimination Act. The Respondent cited a line of cases dealing with the provision of services by Police.

The Respondent also denied that it had discriminated against the Applicant on transgender grounds.

1. The Tribunal and the Applicant had not been put on notice by the Respondent that it would make this application at the hearing prior to the hearing. However these matters had been raised with the President of the ADB in the Respondent's 2 previous submissions. The Tribunal determined that it would hear evidence and submissions from the Applicant on the matters and that there was no prejudice to the Applicant in this regard.

Respondent's application for dismissal as "misconceived"

1. The Respondent submitted that it had not been providing services within the meaning of the Anti-Discrimination Act when the acts complained of occurred. As such, the Respondent submitted, the complaint should be dismissed as misconceived. In short the Respondent's submissions were as follows.

(1)   According to the developed case law, Police do not provide services to the person being arrested when undertaking arrests. The Respondents cited a line of authorities commencing in 2009 with Mohammed's case; Robinson's case in 2012 and Mariani's case in 2013.

(2)   In this particular instance the Police did not provide any relevant services to the Applicant.

(3) The case law in relation to the provision of services required the Applicant to identify the services with which she had been provided and the Applicant had not done so. See IW v City of Perth [1997] HCA 30; 191 CLR 1 and Waters v Public Transport Corporation] [1991] HCA 49; 173 CLR 349. Further it is then a question of fact for the trier of fact (in this instance the ADT) to determine what the relevant services were. See Mariani v NSW Police Force State of NSW [2013] NSWADT 35 at paragraph 22.

(4)   Even if the Applicant were to identify services with which she had been provided there had been no discrimination under the Act. The Applicant bore the onus of establishing 2 elements of a complaint of discrimination:

(i)   Differential treatment i.e. treatment which was different to the way in which a non transgendered person would have been treated; and

(ii)   The causation for the differential treatment was the Applicant's transgender status.

The Respondent submitted that the Applicant's materials did not establish either of these points.

(5) Section 38M of the ADA made it unlawful to discriminate against another person on transgender grounds by refusing to provide services, or in the "terms" on which the services were provided. "Terms" is to be distinguished from the "manner" in which the service is provided. The Tribunal understood from this that it was the Respondent's submission that the Applicant's complaint was about the "manner" in which any service was provided - not the terms on which it was provided: see Turner v State Transit Authority & anor [2004] NSWADT 89 at paragraph 74. Accordingly, the Tribunal could not deal with a complaint about the manner in which services were provided.

Relevant Statutory Provisions

Dismissal under section 73(5) of the ADTA

1. Both the ADA in section 102 and the ADTA in Section 73(5) provide for the dismissal of a complaint on the grounds that it is misconceived or lacking in substance. Section 40 of the ADTA provides for the provisions of the ADA to prevail where there is an inconsistency between the 2 Acts. In respect of the power to dismiss a complaint as misconceived or lacking in substance - there is no real inconsistency between the 2 sets of provisions, which are set out below.

Sections 73(5) (g) and (h) of the ADTA provide

73 (5) The Tribunal:

(g) may dismiss at any stage any proceedings before it in any of the following circumstances:

(i) if the applicant (or, if there is more than one applicant, each applicant) withdraws the application to which the proceedings relate,

(ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

(iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings,

(iv) if the Tribunal considers that there has been a want of prosecution of the proceedings, and

Similarly, Section 102 of the ADA provides

The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b).

Section 92 of the ADA provides

The President may decline complaint during investigation

(1) If at any stage of the President's investigation of a complaint:

(a) the President is satisfied that:

(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance,

The relevant provisions of the ADA

Discrimination in provision of goods and services

Section 38M of the ADA makes it unlawful to discriminate against a person on transgender grounds in the provision of goods and services.

38M Provision of goods and services

It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on transgender grounds:

(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.

Section 38B provides that this discrimination must be caused by the person's (or a relative's or associate's) transgender status and may be either direct or indirect.

38B What constitutes discrimination on transgender grounds

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on transgender grounds if the perpetrator:

(a) on the ground of the aggrieved person being transgender or a relative or associate of the aggrieved person being transgender, treats the aggrieved person less favourably than in the same circumstances (or in circumstances which are not materially different) the perpetrator treats or would treat a person who he or she did not think was a transgender person or who does not have such a relative or associate who he or she did not think was a transgender person, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not transgender persons, or who do not have a relative or associate who is a transgender person, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply, or

(c) treats the aggrieved person, being a recognised transgender person, as being of the person's former sex or requires the aggrieved person, being a recognised transgender person, to comply with a requirement or condition with which a substantially higher proportion of persons of the person's former sex comply or are able to comply, being a requirement or condition which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person being transgender if it is done on the ground of the person being transgender, a characteristic that appertains generally to transgender persons or a characteristic that is generally imputed to transgender persons.

Section 4 of the ADA defines services inclusively. Specifically section 4(e) refers to services provided by a "public authority".

Section 4 "services" includes:

(a) services relating to banking, insurance and the provision of grants, loans, credit or finance,

(b) services relating to entertainment, recreation or refreshment,

(c) services relating to transport or travel,

(d) services of any profession or trade,

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

(f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.

Section 122B (1) (c) of the ADA includes the Police Service as an "authority".

Section 4A provides that the person's (relative's or associate's) transgender status need only be one of the grounds for the less favourable treatment

4A Act done because of unlawful discrimination and for other reasons

If:

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

Section 53 provides for vicarious liability of employers for acts by their employees that would have been unlawful had they been performed by the employer. In this instance the employer is the State of NSW - and the employees, individual police officers.

S.53 Liability of principals and employers

(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act. ..........

Discussion and findings on Law and Evidence

Dismissal under Section 73(5) ADTA and S102 ADA

1. The Tribunal considered whether it should dismiss the matter under section 73 (5) (g) (ii) of the ADTA on the basis that the Applicant's case was misconceived in that the Police had not been providing services to her within the meaning of section 38M of the ADA.

1. As noted, section 73(5) (g) (ii) of the ADTA is expressed in near identical terms to section 102 of the ADA. Both provide for the dismissal of complaints (or parts of complaints) prior to final determination. The Tribunal accepts the principles expressed in relation to one as equally applicable to the other in this matter.

Power to dismiss summarily s102/s73 (5) (g) (ii)

1. In Alchin v Rail Corporation NSW [2012] NSWADT 142 the Tribunal set out at paragraphs 20-22 its analysis of the case law and principles that apply to considering applications for summary dismissal. In short, the Tribunal held that the power of summary dismissal needs to be exercised with extreme caution. The Applicant needs to be provided with an opportunity to set out the contents of her complaint. Where the facts are disputed, the Tribunal should accept the Applicant's version of the facts for the purpose of determining whether the complaint should be summarily dismissed. The Tribunal must take the Applicant's case at its highest.

The Tribunal, however does not necessarily have to accept the Applicant's assertions of the conclusions to be drawn from her version of the facts. The conclusions to be drawn are matters for the Tribunal.

Meaning of "misconceived"

1. In the matter of Alchin v Rail Corporation NSW [2012] NSWADT 142 at paragraphs 25-26 the Tribunal also dealt with the meaning of "misconceived" and "lacking in substance". The Tribunal concluded that the approach of construing "misconceived" as including a misunderstanding of legal principle and "lacking in substance" as encompassing an untenable proposition of fact or law had been applied by the Tribunal in many decisions and is the appropriate approach.

1. In this instance, the Tribunal determined it should follow a several step process.

First it must hear evidence and submissions from the Applicant as to what occurred factually in her interaction with the Police Service and what she specified as services either refused or received on less favourable terms.

1. The Tribunal then needed to determine what might be considered a service in the context of a citizen's interaction with the Police in dealing with the criminal law.

1. Then the Tribunal needed to determine, as established by the case law, whether as a matter of fact the interactions with the Police set out by the Applicant constituted "services" refused or provided by the Respondent Police Service.

1. Once the Tribunal has determined whether or not the interactions constituted services, the Tribunal then needs to determine, accepting the Applicant's case at its highest, whether then the Application was misconceived and whether it should be dismissed pursuant to section 73(5) (g) of the ADTA or dismissed for any other reason.

1. Should the Tribunal determine that the interactions did constitute "services" then the Tribunal needed to continue to determine the case on its merits in relation to section 38M of the ADA, considering whether there has been less favourable treatment caused by the Applicant's transgender status.

Ms Rasmussen's Evidence as to services.

1. The Tribunal asked the Applicant to set out her account of the events and specify the services she had received from the Police. No evidence was taken from the Respondent's witnesses.

Ms Rasmussen's evidence was as follows.

1. Ms Rasmussen had lived as a male until the age of 18 when she initiated hormone treatment and commenced living as a woman.

She had called the Police to her home on 18 January 2012. She was seeking the assistance of the Police as she had experienced a history of violence from her brother David Morrison who had previously been subject to an AVO in relation to her. This AVO had now expired. Ms Rasmussen said that she thought that if she called the Police and indicated she had assaulted her brother and was arrested that then something might happen to ensure that her brother was made to leave the home. When the Police had arrived at the home her mother Amelia Morrison had had a conversation with the Police attending and advised that Ms Rasmussen was a transgender woman.

1. Ms Rasmussen had then advised the Police in her initial conversation that her brother had been violent towards her because she was a transgender woman. She said at this point the Police walked away and started talking to others in the house. Ms Rasmussen then went into the bathroom in order to ready herself to be arrested and to be taken to the Police station. She then went to the bedroom. Senior Constable Naughton had required her to keep the bedroom door open. She told him that she wanted the bedroom door closed so that her dog would not escape. She said that Senior Constable Naughton had kicked the dog as it tried to escape the bedroom and she had objected to this. She said she then put her hands in the air as though to surrender and turned around to turn the power off in her bedroom. She was then seized by the arm by Senior Constable Naughton. She pushed him and he fell to the ground. He then rose and seized her again by the arm and punched her in the face. She said that Senior Constable Naughton had jumped on top of her on the bed and had ripped a mole on her leg causing it to bleed. She had sustained bruising on the arm from being seized by the arm and pain and discomfort to her jaw from being hit. The other Police officers then came into the room and also took hold of her. She said that they did not allow her to change out of her pyjamas and was taken to the Police vehicle. She had asked Senior Constable Naughton:

Did it feel good to hit a transsexual? She said he had responded "It felt good to hit you." Her bag was ripped from her arm. She said this was not necessary as she would have voluntarily provided the bag. She then says she had a very uncomfortable ride in the Police vehicle and that the Police officers were looking into the back and laughing as she attempted to hold on in the van.

1. When she arrived at the Police station she asked the custody manager, Leading Senior Constable Kylie Harman, to contact the Gay Liaison officer for her. She said that Leading Senior Constable Harman did not do so. She did speak to a solicitor. When she had been charged and allowed to leave the station she had not been offered the facility of making a phone call and had to take public transport home in her pyjamas.

1. When the Matter came before the court Ms Rasmussen pleaded guilty to assault of her brother and assault officer in execution of his duty. No conviction was recorded and she was given a good behaviour bond and required to complete a positive lifestyles program.

1. The Tribunal notes that it did not hear evidence from the Respondent witnesses about these matters. The Tribunal acknowledges that the Applicant felt and expressed her distress in relation to what occurred at her home, on the way to and at the Police station. However the Tribunal makes no findings in respect of the Respondent's alleged actions in these matters.

Services and Less Favourable Treatment

1. Ms Rasmussen maintained that the less favourable treatment she had received in the provision and refusal of services was

• that the attending Police had not sought her version of events despite the fact that she had called them;

• that the Police had used excessive and unnecessary force to arrest her;

• that she had not been permitted to close her bedroom to keep her dog in;

• that Senior Constable Bill Naughton had kicked her dog;

• that Senior Constable Bill Naughton had punched her in the face and tackled her;

• that she had not been permitted to change into street clothes;

• that her bag had been ripped from her shoulder;

• that the Police had laughed at her discomfort in the van;

• that the Police had not called the Gay Liaison officer;

• that she had not been offered a telephone call to seek assistance; and

• that she had to travel home on public transport in physically revealing pyjamas.

1. The Tribunal finds that these actions of the Police, subject of Ms Rasmussen's complaint could be categorised as:

• attending in response to a call out;

• investigation of an offence;

• the process of making the decision to arrest;

• arrest;

• the conveying to the Police station;

• the detention in custody;

• the charging; and

• the releasing on bail.

1. The question for determination by the Tribunal was whether any of these constituted "services" within the meaning of section 38M of the ADA.

Services

Relevant case law concerning the Police and the provision of services

1. The ADA defines services in section 4 as including services provided by a public authority. "Authority" is later defined in section 122B (1) (c) as including the Police Service.

1. Similarly the Police Act 1990 NSW provides at section 6(2) (a) that the NSW Police Force has amongst other functions "to provide police services for NSW".

Section 6(3) (a) of the Police Act provides that amongst other services, police services include:

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

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

(d) Any other service prescribed by the regulations.

1. The Respondent referred the Tribunal to a line of cases dealing with the Police and the provision of services. One of those cases is the matter of Mariani v NSW Police Force State of NSW [2013] NSWADT 35 which dealt with a complaint of discrimination on the grounds of disability against the Police in the arrest, detention and bailing of a young man with a disability after an assault in the family home. Similarly to Ms Rasmussen's situation, the Applicant in that matter had assaulted his brother in the home. He had called the Police to the home who attended the home, arrested him, conveyed him to the Police station and held him in custody.

In determining the Mariani matter, the Tribunal analysed the line of cases specifically dealing with the Police and the provision of services. These included Commissioner of Police v Estate of Russell [2001] NSWSC 745 in which Sully J in the NSW Supreme Court considered that the arrest of a person involved police providing services to the 'community at large', not to that person. The Tribunal is bound to follow this reasoning. Similarly in the Federal Court matter of Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 the Federal Court found that the Police were exercising a 'public duty' when effecting an arrest.

1. In the matter of Mariani at paragraph 22 the Tribunal determined relevantly

• the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination......;

• The identification of the "service" at issue in any case is a question of fact for the trier of fact:; and

• The way in which the service is identified is critical. It is a question of fact determined by the situation of the particular case.

1. Accordingly this Tribunal set about considering whether as a matter of fact the actions of the Police described above by the Applicant constituted the refusal of a service or the provision on less favourable terms of services by the Respondent.

In doing so, the Tribunal further considered the similar factual circumstances in Mariani's case and that Tribunal's consequential determination of what constituted services provided by the Respondent.

87. ....The authorities as to when police may be said to be providing a service to an individual are complex, and have been carefully considered by the tribunal in the light of the objects of the Anti-Discrimination Act to prevent unlawful discrimination by public authorities. After careful consideration of the authorities and the facts of the present matter the tribunal finds as follows. The pursuit and arrest of a suspected criminal is not the provision of the service to the person being pursued or arrested. The determination of the bail application does not involve the provision of a service; and the decision to bring criminal proceedings against a person is not the provision of a service to that person. The care of a detainee may involve the provision of a service although there is some question over whether all aspects of detention involve the provision of a service. In applying these principles the tribunal finds that the handcuffing, cautioning, questioning and arrest of the applicant at about 12:20 pm on 19 August 2009 did not involve a service to the applicant; the conveyance by police vehicle to Castle Hill police station, on the facts of this case, did not involve the provision of a service to the applicant, this was proper police practice following arrest; questioning in custody did not involve a service to the applicant; the decision to apply for an AVO did not involve a service to the applicant; and the decision to charge the applicant did not involve a service to the applicant. The respondent's consideration of bail and the decision to refuse bail initially did not involve a service to the applicant but was a requirement of to (sic) law pursuant to the Bail Act; .........The tribunal also agrees with the submission of the respondent's representative that the AD Act does not require the respondent to provide special services to meet the needs of a person with a disability.

Findings on services

1. This Tribunal accepts and adopts the Tribunal's determination in the matter of Mariani that

• the questioning and arrest of the Applicant did not involve a service to the Applicant;
• the conveyance by police vehicle to the police station did not involve the provision of a service to the Applicant as this was merely proper police practice following arrest;
• the decision to charge the Applicant did not involve a service to the applicant; and
• The Respondent's consideration of bail did not involve a service to the Applicant but was a requirement of the law pursuant to the Bail Act.

1. Accordingly the Tribunal finds that none of the above interactions of the Applicant with the Police can be characterised as services within the meaning of section 38M of the ADA.

Alleged Refusal to call Gay Liaison Officer

1. This leaves, however, the Applicant's allegation that the custody manager refused to call the Gay Liaison Officer while the Applicant was in custody. Did this constitute the refusal to provide a service?

1. The Applicant's evidence was that

• she had spoken to a solicitor while in custody;
• she asked the Custody Manager, Leading Senior Constable Kylie Hannan for the Gay Liaison Officer;
• she didn't really have a conversation with Leading Senior Constable Hannan; and
• Leading Senior Constable Hannan didn't try to call the Gay Liaison Officer.

1. The Tribunal did not take evidence from the parties about the role of the Police Gay Liaison Officer. However the Tribunal notes that the Police Services website refers to the Gay and Lesbian Liaison Officer and policing policy in respect of building working relationships with - Gay, Lesbian, Bi-sexual, Transsexual and Intersex (GLBTI) citizens.

"Of particular importance to NSW Police

Force policy and practice is the primary

role of the GLLO to assist Local Area

Commands build their overall capacity to

respond to GLBTI issues. The aim is to

support all police officers and staff in their

interactions with members of these diverse

communities.

This policy recognises the need to promote

the liaison role for all GLBTI people."

cited 20 November 2013

1. The Tribunal understands from this that the Gay and Lesbian Liaison Officer has a role in liaising between the Police and Gay, Lesbian, Bisexual, Transsexual and Intersex citizens. Ms Rasmussen falls into this category.

1. The Tribunal is satisfied from the Applicant's evidence that Ms Rasmussen did ask Leading Senior Constable Hannan to call the Gay Liaison Officer. However the Applicant says that she didn't really have a conversation with Leading Senior Constable Hannan. The Tribunal did not hear from Leading Senior Constable Hannan. In the circumstances the Tribunal does not know whether Leading Senior Constable Hannan refused to call the Gay Liaison Officer or not.

1. However, for the purposes, of dealing with the Respondent's application to dismiss the matter and therefore putting the Applicant's case at its highest, the Tribunal will assume that Leading Senior Constable Hannan did refuse to call the Gay Liaison Officer.

1. Is then calling the Gay Liaison Officer a "service"?

In Mariani's matter one of the issues at hand was whether the failure to offer a support person to the Applicant as a "vulnerable person" under the Law Enforcement Powers and Responsibilities Act 2002 and Regulations 2005 (LEPR) was a refusal of service. Unlike the Applicant in the Mariani matter, Ms Rasmussen is not "a vulnerable person" attracting these specific obligations under the LEPR Act. At the same time, the LEPR Act sets out obligations upon the custody manager in respect of all detainees (this Tribunal's emphasis) at section 123.

1. The Tribunal noted that the provisions of section 123 of LEPR Act set out below, provide for the "right of the detained person to communicate with an independent person" and the obligation on the custody manager to inform the detained person that she may communicate with the independent person; to inform the independent person of the detained person's whereabouts and to ask the person to attend at the place where the person is being detained. Independent person is not defined in the LEPRA.

1. The custody manager's responsibilities towards the Applicant under the LEPR Act and Regulations were not raised by the Applicant with the Tribunal or in her evidence. No evidence was taken from the Respondent's witnesses about this issue. Nor does the Tribunal have jurisdiction in relation to obligations under the LEPR Act. However, it is of assistance to this Tribunal in this matter that at paragraph 87 the Mariani Tribunal found that

87 The care of a detainee may involve the provision of a service although there is some question over whether all aspects of detention involve the provision of a service............; and

90 The respondent in caring for a detainee may provide services to the detainee, in terms of the AD Act. The custody manager has specific responsibilities under the LEPR Act, however it is not necessarily the case that compliance with these legal obligations is also provision of a service to the applicant.

1. The LEPRA is legislation subsequent to the ADA. The objects of this part of LEPRA are set out at section 109 as "to provide for the rights of detained persons." None of the limitations in section 125 on the obligation to make this contact appear to apply to this instance. There is no indication in these provisions that they are intended to override the service provisions of the ADA. The LEPRA provisions obliging the custody manager to take certain actions, sit consistently with the provisions of section 38M of the ADA providing for services in relation to transgender persons. The Tribunal considers that the calling of an independent person was a service to the Applicant under section 38 M of the ADA.

LEPRA Section 123

Right to communicate with friend, relative, guardian or independent person and Australian legal practitioner

(1) Before any investigative procedure in which a detained person is to participate starts, the custody manager for the person must inform the person orally and in writing that he or she may:

(a) communicate, or attempt to communicate, with a friend, relative, guardian or independent person:

(i) to inform that person of the detained person's whereabouts, and

(ii) if the detained person wishes to do so, to ask the person communicated with to attend at the place where the person is being detained to enable the detained person to consult with the person communicated with, and at the place where the person is being detained

(b) communicate, or attempt to communicate, with an Australian legal practitioner of the person's choice and ask that Australian legal practitioner to do either or both of the following:

(i) attend at the place where the person is being detained to enable the person to consult with the Australian legal practitioner,

(ii) be present during any such investigative procedure.

(2) If the person wishes to make any communication referred to in subsection (1), the custody manager must, as soon as practicable:

(a) give the person reasonable facilities to enable the person to do so, and

(b) allow the person to do so in circumstances in which, so far as is practicable, the communication will not be overheard.

(3) The custody manager must defer for a reasonable period any investigative procedure in which the person is to participate:

(a) to allow the person to make, or attempt to make, a communication referred to in subsection (1), and

(b) if the person has asked any person so communicated with to attend at the place where the person is being detained:

(i) to allow the person communicated with to arrive at that place, and

(ii) to allow the person to consult with the person communicated with at that place.

(4) If the person has asked a friend, relative, guardian or independent person communicated with to attend at the place where the person is being detained, the custody manager must allow the person to consult with the friend, relative, guardian or independent person in private and must provide reasonable facilities for that consultation.

(10) After being informed orally and in writing of his or her rights under this section, the person is to be requested to sign an acknowledgment that he or she has been so informed.

1. In the circumstances, the Tribunal finds that the Gay Liaison Officer could be considered as "an independent person." Further the Tribunal finds that in this matter, the calling of an independent person is a service under section 38 M of the ADA. Accordingly the calling of the Gay Liaison Officer could in this instance be considered a service.

Less Favourable Treatment

1. The Tribunal has found that the attending at the home, investigation, arrest, conveying of the Applicant to the Police Station, the detention in custody and the bailing and release of the Applicant did not involve the provision of services to her. At the same time it has found that, if it occurred, the failure to call the Gay Liaison officer does constitute the refusal of a service to the Applicant.

1. If the Tribunal is wrong about the characterisation of these matters and for the purposes of determining the Respondent's application to dismiss the complaint, the Tribunal then determined to consider the Applicant's contention that in all of these matters she had received

• less favourable treatment than would have been afforded a non transgendered person in the same or similar circumstances to the Applicant; and
• that it had been on the grounds of Ms Rasmussen's transgender status.

1. As a comparison, Ms Rasmussen cited the treatment of her brother David Morrison who was not transgendered. He had previously resisted arrest when the Police had attended at the family home. Ms Rasmussen considered that her brother had not been dealt with as forcefully by the attending Police on this previous occasion - even though he had resisted arrest.

1. Ms Rasmussen did not cite any comments from the officers who had attended her home in relation to her transgender status. Her evidence was that when she said to Senior Constable Naughton

"Did it feel good to hit a transgender person?"

He replied

"It felt good to hit you."

1. The Tribunal does not consider that Senior Constable Naughton's alleged response supports the contention that he treated the Applicant less favourably on the grounds of her transgender status.

1. Ms Rasmussen also proffered that the treatment she complained of from the Police may have been because of her transgender or it might have just been because of who she was - as the Police may have been tired of attending her home so many times as a result of the violence from her brother.

1. The Applicant did not refer to any overt evidence such as comments about her transgender status from Leading Senior Constable Hannan to support the contention that the Gay Liaison Officer was not called on the grounds that the Applicant is a transgender person. Further there was no evidence before the Tribunal that enabled the Tribunal to draw an inference that it was on the grounds of her transgender status.

Decision

1. The Tribunal determines that the following interactions between the Applicant and the Police did not constitute 'services" for the purposes of section 39M of the ADA.

• attending in response to a call out;
• investigation of an offence;
• the process of making the decision to arrest;
• arrest;
• the conveying to the Police station;
• the detention in custody;
• the charging; and
• the releasing on bail.

1. As a result, the Tribunal determines that the Application in respect of these matters should be dismissed as misconceived pursuant to section 102 of the ADA.

1. If the Tribunal has erred in determining that these matters did not constitute the provision or refusal of services to the Applicant, the Tribunal finds that there is no evidence that the Applicant was treated less favourably than a person who was not of transgender status in the same circumstances on the basis of her transgender status in the provision or refusal of these services. In these circumstances the Tribunal would dismiss the Application as lacking in substance under section 102 of the ADA.

1. The Tribunal finds that the Applicant did ask for the Gay Liaison Officer to be called and that the calling of the Gay Liaison Officer by the custody manager or delegate, in this matter, constitutes a service under section 38 M of the ADA. The Tribunal does not know whether the Respondent refused to call the Gay Liaison Officer. Further if the custody manager did refuse to call the Gay Liaison Officer - there is no evidence before the Tribunal that this refusal was based on the Applicant's transgender status. As such this aspect of the Applicant's complaint should be dismissed under section 102 of the ADA as lacking in substance.

1. The Tribunal did not hear evidence from the Respondent's witnesses in this matter. In the absence of this evidence, it does not draw conclusions about the actions of the police who attended the Applicant's home or of those who conveyed her to the Police Station or who interacted with her there.

1. The Tribunal also respectfully acknowledges Ms Rasmussen's distress in giving her evidence concerning her status as a transgender woman both within her domestic circumstances and in her public interactions.

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Amendments

04 December 2013 - Typographical error - Counsel for Respondent

Amended paragraphs: Coversheet

Decision last updated: 06 December 2013