Soliman v State of NSW (NSW Police Force)
[2011] NSWADT 42
•02 March 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Soliman v State of NSW (NSW Police Force) [2011] NSWADT 42 Hearing dates: 13 January 2011 Decision date: 02 March 2011 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave is granted for the applicant's complaint of race discrimination to be the subject of proceedings before the Tribunal.
The matter is listed for case conference on 6 April 2011 at 11am.
Catchwords: Leave to proceed - fair and just in the circumstances - whether police providing services - whether complaint has merit Legislation Cited: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977Cases Cited: Jones and Anor v Ekermawi [2009] NSWCA 388
Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349
IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1
Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745
Mohamed & Ors v State of New South Wales (NSW Police Force) unreported, 31 March 2010
Commissioner of Police v Mohamed [2009] NSWCA 432
Whitfield v State of New South Wales (NSW Police Force) [2010] NSWADT 284
Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165Category: Principal judgment Parties: Soliman Soliman (Applicant)
State of New South Wales (NSW Police Force) (Respondent)Representation: Ghobrial Legal (Applicant)
Blake Dawson Waldron (Respondent)
File Number(s): 101128
REASONS FOR DECIsion
Introduction
Mr Soliman, who comes from Egypt, complained to the President of the Board that he had been discriminated against on the ground of his race by an officer of the NSW Police Force. Mr Soliman is a taxi driver and says that on 27 September 2009 a police officer wrongly issued him with a defect notice in relation to the taxi he was driving. Mr Soliman has applied to the Tribunal for permission for his complaint of race discrimination against the NSW Police Force to go ahead even though the President of the Anti-Discrimination Board declined the complaint as lacking substance: Anti-Discrimination Act 1977 ( AD Act ), s 96.
The Tribunal has a discretion to grant or not to grant permission ('leave') for the complaint to go ahead and will be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. The onus is on Mr Soliman to satisfy the Tribunal that leave should be granted.
The main issues if this complaint went to a hearing would be whether the police officer's treatment of Mr Soliman can be regarded as the provision of a service to him and, if so, whether at least one of the reasons for that treatment was Mr Soliman's race. When deciding whether to grant leave, the potential merits of the case are relevant.
Factual basis for the complaint
On 27 September 2009, Acting Sergeant Fenton and Senior Constable Creamer were engaged in highway patrol duties. According to those officers, their radar equipment detected Mr Soliman's taxi exceeding the speed limit. They pulled the taxi over and told Mr Soliman that he had been travelling at 86 km per hour in a 60 zone. After completing the infringement notice, Acting Sergeant Fenton says he checked the wear on the tyres. During a subsequent discussion Mr Soliman said he could not have been going 80. When Acting Sergeant Fenton said, "You were the only car on the road coming this way" Mr Soliman replied, "I will see you at the court." Senior Constable Creamer said, "Good . . . " Acting Sergeant Fenton then said, "You better ring a tow truck up because you are not driving this cab. It's getting a red label right now." The police officer then completed another infringement notice for defective tyres. After Mr Soliman suggested that the Department of Transport and not the police were responsible for issuing defective tyre notices, the following conversation occurred:
Fenton: You need to get your facts right before you make accusations like that. You obviously don't have much of an idea about how it all works. Your are very quick to say things though, aren't you? Alright this is a defect notice for the tyres that are past their wear indicators. Being a public passenger vehicle it is very important the vehicle is roadworthy. Its major grounded with a red label. You cannot driver this car from here, it will be towed. Two infringement notices, one for the defective tyre, tyres I should say . . .
Soliman: I don't get that.
Fenton: You are driving it.
Soliman: The driver does not get that. The operator is the one who is in charge.
Fenton: And you know this because . . . ? You are in charge of the vehicle.
Soliman: No, no.
Fenton: Yes, yes
Soliman: I don't get charged. You are a bunch of racists man.
Subsequently Mr Soliman received a further infringement notice for driving the taxi when he should have called a tow truck.
Mr Soliman pleaded not guilty to the defective tyres offence. The Local Court found him guilty but did not proceed to convict him. Mr Soliman appealed successfully to the District Court. There is no evidence of the Court's findings or reasons for that decision.
Legal merits of the complaint
In order to substantiate a complaint of direct race discrimination, Mr Soliman would have to prove that:
a) he is of a member of a race as defined in s 4 of the AD Act ;
b) the NSW Police Force refused to provide him with a service or provided him with a service on unfavourable terms; AD Act , s 19
c) in refusing that service or providing it on unfavourable terms, the NSW Police Force treated him less favourably than it treated or would have treated a person who was of a different race in the same or similar circumstances; and
d) at least one of the reasons for that treatment was Mr Soliman's race: AD Act , s 7 and s 4A.
Race
There is no dispute that Mr Soliman is of Egyptian national origin and that that is a race as defined in s 4 of the AD Act .
Identification of service
The NSW Police Force submitted that the Tribunal has no jurisdiction to hear Mr Soliman's complaint because they were not providing him with a service within the meaning of that term in s 19. The first step in determining whether a person has been refused a service or provided a service on unfavourable terms is the proper characterisation of the relevant service: Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 404-405 per McHugh J, IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17 per Brennan CJ and McHugh J.
The term "services" is defined by s 4 of the AD Act to include "services provided by a council or public authority." NSW Police Force is a public authority. It is established under the Police Act 1990. Section 6 of that Act provides:
6 Mission and functions of NSW Police Force
(1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear.
(2) The NSW Police Force has the following functions:
(a) to provide police services for New South Wales,
(b) to exercise any other function conferred on it by or under this or any other Act,
(c) to do anything necessary for, or incidental to, the exercise of its functions.
(3) In this section:
police services includes:
(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
(c) the provision of essential services in emergencies, and
(d) any other service prescribed by the regulations.
(4) A reference in this section to the functions of the NSW Police Force includes a reference to the functions of members of the NSW Police Force .
(5) ....
Police officers provide the services set out in s 6(3)(a) and (b) of the Police Act to the community and to individuals in various contexts. Mr Soliman submitted that Acting Sergeant Fenton was providing him with a service when he decided to issue him with an infringement notice for defective tyres. Mr Soliman asserted that that service was the service described in s 6(3)(a) and/or (b).
In Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745, Mr Russell had been arrested by police officers and taken into custody. He complained that he had been discriminated against on the ground of his race (Aboriginal). The Tribunal referred the following question of law to the Supreme Court:
'. . . whether the conduct of the individual respondent constables in the course of the pursuance and arrest of Mr Russell amounted to the provision of a ' service ' within the meaning of section 19 of the Anti-Discrimination Act . . .'
The answer given by Sully J at [44] was that:
A correct assessment of the conduct of the individual police officers in the course of the pursuit and arrest of the late Mr Russell is in my opinion as follows:
[1] the police officers who took part in the pursuit of Mr Russell were providing to the community at large services of the kind described in section 6(3)(a) and (b) of the Police Service Act
[2] the police who took part in the arrest of the late Mr Russell were also thereby providing to the community at large services of those two kinds
[3] as soon as the late Mr Russell had been formally arrested, and had passed thereupon into police custody, the arresting police , and any police officer who had any part at all in the way in which Mr Russell was subsequently handled; or who witnessed the way in which Mr Russell was handled; became thereupon charged with a public duty to provide to the late Mr Russell police services by way of the protection of his person from injury or death, and the protection of his property from damage 'whether arising from criminal acts or any other way'.
It can be implied from these answers and from the reasons for decision that before arresting Mr Russell police were providing services to the community at large, not to Mr Russell personally, whereas after his arrest, police were providing Mr Russell with a service. The application of the law to the facts in Russell was not disturbed by the Court of Appeal in Commissioner of Police v Mohamed [2009] NSWCA 432. In that case, because many of the facts had not been found, the Court of Appeal made the general statement that:
Conduct of police officers with respect to a request for assistance in relation to possible criminal activity, where protection of persons or property may be required, can involve the refusal or provision of "services" for the purposes of s 19 of the Anti-Discrimination Act.
On remittal from the Court of Appeal, the Tribunal decided that the police investigating a complaint made by the Mohamad family were providing services to that family within s 19 of the AD Act and were required not to discriminate on the grounds of race by refusing to provide the services or in the terms on which the services were provided: Mohamed & Ors v State of New South Wales (NSW Police Force) unreported, 31 March 2010.
As with the present case, the question in Whitfield v State of New South Wales (NSW Police Force) [2010] NSWADT 284 was whether leave should be granted for the complaint to continue. In the course of determining that question, the Tribunal assessed the merits of the complaint including whether the police were providing a service to Mr Whitfield. Mr Whitfield had been arguing with his landlady, Mrs Hart, and neighbours had called the police. Mr Whitfield alleges that police insisted that he move out of the house immediately. Mr Whitfield submitted that a police officer on a call to a home in relation to a complaint about arguing or domestic violence is providing a service by way of prevention and detection of crime. It was not appropriate in the course of a leave hearing for the Tribunal to come to a concluded view about that issue, but the Tribunal made the following comment at [25]:
In accordance with the general statement of the law in the Court of Appeal's decision in Mohamed , and the more specific statement in Russell , the police officer in this case was providing the community including Mrs Hart and her neighbours with the services in s 6(3)(a) and (b) of the Police Act. The question is whether they were also providing Mr Whitfield with those services. Unlike the situation in Mohamad , Mr Whitfield had not asked police to investigate any possible criminal activity. The facts are similar, but not identical to the situation in Russell . Just as Mr Russell was suspected of having committed a crime, so police attended Mr Whitfield's home because of allegations against him. Mr Whitfield was never arrested, so it is arguable, in accordance with Sully J's observations in Russell , that while conducting inquiries about the possible commission of a criminal offence, police are not providing a service to the alleged perpetrator. However, there is no authority directly on point and it is arguable that police were providing a service to Mr Whitfield.
The NSW Police Force emphasised that in this case that Mr Soliman had not been detained or arrested, he had merely been issued with a number of traffic infringement notices. They also pointed out that there was a dispute as to the facts in Whitfield whereas the facts were essentially agreed in this case. Despite these differences, the state of the existing case law is that it is arguable that when issuing an infringement notice for defective tyres, a police officer is providing a member of the public with the service of either the prevention and detection of crime, and/or the protection of persons from injury or death, and property from damage. Leave should not be refused on the basis that the Tribunal does not have jurisdiction because the NSW Police Force was not providing Mr Soliman with a service.
Assuming that Acting Sergeant Fenton was providing Mr Soliman with a service, the next consideration is the merits of Mr Soliman's contention that he was discriminated against on the ground of his race in the terms on which those services were provided.
Differential treatment and causation
The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to the applicant must be compared with the treatment that would have been afforded to a person not of his race in the same or similar circumstances. In the absence of an actual person whose treatment could be validly compared with the treatment given to the applicant a decision maker would have to rely on a hypothetical person in a comparable situation.
Mr Soliman said that his situation should be compared with a person of Anglo-Saxon background. His submission was that a police officer would not have issued a red label for defective tyres to an Anglo-Saxon taxi driver. In cases where the comparator is a hypothetical person, it is very difficult to answer this question. Mr Soliman must bear in mind that the Tribunal would have to determine whether an Anglo-Saxon taxi driver, who had the same or a similar conversation with the police officers as Mr Soliman had, would have been treated differently.
If Mr Soliman could prove "differential treatment" he would also have to prove "causation". At least one of the reasons for being treated in the way he was treated must have been his race. There is no need to prove that Acting Sergeant Fenton intended to discriminate. Discrimination may not be conscious. However, the fact that the reason for the conduct is almost always within the respondent's knowledge makes it difficult for applicants to establish the grounds for that conduct. The High Court recognised and commented on this difficulty in Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 at 176 but has not suggested that the evidential burden should be on the respondent to give evidence about the reasons for its conduct. The situation under the AD Act is that the legal and evidential burden remains on the applicant to prove his or her case.
There is no direct evidence that the police officer who issued the infringement notice for defective tyres did so because Mr Soliman is Egyptian. While neither of the police officers mentioned race, Mr Soliman obviously thought that his race was a factor at the time because he told the officers that they were 'a bunch of racists'. In the absence of direct evidence, there must be sufficient evidence from which an inference can be drawn that race was a factor. Mr Soliman said that an inference can be drawn that race was a factor because the infringement notice was issued after he threatened to take the police to court. In addition, the District Court allowed his appeal, so there must have been a reason, other than the wear on the tyres, for issuing the infringement notice.
The District Court's findings and reasons for quashing Mr Soliman's conviction were not in evidence. Without knowing the basis on which the appeal was upheld it is difficult to determine the strength of Mr Soliman's case. Nevertheless, if Mr Soliman can prove that the issuing of the infringement notice was not justified and that in the same circumstances, police would not have issued such a notice to an Anglo-Saxon taxi driver, his case may have some merit.
In all the circumstances, it is fair and just for leave to be granted.
Order
Leave is granted for the applicant's complaint of race discrimination to be the subject of proceedings before the Tribunal.
The matter is listed for case conference on 6 April 2011 at 11am.
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Decision last updated: 08 March 2011
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