West & ors v Commissioner of Police, NSW Police

[2007] NSWADT 240

CITATION:	West & ors v Commissioner of Police, NSW Police [2007] NSWADT 240
DIVISION:	Equal Opportunity Division
PARTIES:	FIRST APPLICANT Paul West SECOND APPLICANT William Middleton THIRD APPLICANT Darren Toomey FOURTH APPLICANT Anthony Towney FIFTH APPLICANT Gillian Edge SIXTH APPLICANT Harry Cutmore SEVENTH APPLICANT Douglas Hall EIGHTH APPLICANT Jacqueline Kennedy RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	071017
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	6 September 2007
DATE OF DECISION:	5 October 2007
BEFORE:	Britton A - Deputy President
CATCHWORDS:	Joinder of parties - Scope of complaint
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
CASES CITED:	Bignell v NSW Casino Control Authority (EOD) [2001] NSWADTAP 41 King & Anor v Meilman East Pty Limited & Ors [2004] NSWADT 46 Spence v Roberts [2006] NSWADT 105 Z v University of A & Ors (No 7) [2004] NSWADT 81
REPRESENTATION:	APPLICANTS D Hillard, solicitor RESPONDENT No appearance PROPOSED PARTY A Hatcher, barrister
ORDERS:	1. The complaint before the Tribunal is determined to comprise of allegations of race discrimination (ss 7 and 8 of the Anti–Discrimination Act 1977 (AD Act)) and racial vilification (s 20 C of the AD).; 2. Mr Paul Horner is joined as party to the proceedings.; 3. By consent the following timetable is to apply: ; 1. The matter is to be set down for mediation at a date to be fixed by the Registrar but not before 28 days from the date of this decision. ; 2. The parties are to confer and provide the Registrar with at least two agreed dates for the mediation.; 3. In the event that the mediation does not resolve the complaint, the following timetable will come into effect:; a) Within 28 days of the mediation the applicants are to file and serve points of claim and all evidence on which they seek to rely.; b) Within 28 days of service of the applicants’ material the respondents are to file and serve points of defence and all evidence on which each seek to rely.; c) Within 14 days of service of the respondents’ material, the applicants may file and serve any evidence in reply. ; d) At the conclusion of the mediation the mediator is requested to set a date for a further case conference, to be held approximately 56 days from the date of the mediation.

1 In September 2004, Aboriginal Community Liaison officer, Paul West, and 16 colleagues lodged a complaint with the Anti–Discrimination Board against their employer, the Commissioner of Police, NSW Police Service. The complaint concerned an email circulated on the Commissioner’s internal email system. The email was described by Assistant Commissioner of Police, D B Madden, in the following terms:

A highly offensive and racist email, circulated over the NSW Police memo system. The email contained inflammatory content directed toward the Aboriginal community in particular.

2 After investigating and attempting to conciliate the complaint, the President of the Anti–Discrimination Board referred it to the Administrative Decisions Tribunal under s 93B of the Anti–Discrimination Act 1977 (AD Act).

3 These reasons address two preliminary issues: the scope of the complaint and whether the alleged originator of the email, Mr Paul Horner, should be joined as a party to these proceedings.

4 With the consent of the parties, these two issues will be determined ‘on the papers’. Written submissions were received from the applicants and Mr Horner. The Commissioner elected not to make submissions on either issue.

Need to amend the Complaint?

5 At a case conference held on 11 July 2007, the issue of the scope of the complaint was raised. The applicants contend that the complaint is an allegation of both race discrimination and racial vilification, notwithstanding that the President described it in the letter of referral dated 7 February 2007, as a ‘complaint of race discrimination’, against the ‘New South Wales Police Service’ and made no mention of racial vilification (s 20C of the AD Act). They argue that there is no need for the Tribunal to decide if it should exercise its powers under s 103 of the AD Act to amend the complaint as it plainly alleges racial vilification.

6 The term ‘complaint’ is not defined in the AD Act. The Act tells us who can make a complaint (s 87) and when it is ‘made’ (s 89A) but it is not precise on ‘what’ a complaint is. Section 87 A provides some guidance and refers to ‘a complaint alleging that a named person has, or named persons have, contravened a provision of this Act or the regulations…’ The Act does not require the complainant to identify the provision of the AD Act s/he believes has been contravened or, indeed demonstrate a prima facie case. The only requirement as to form is that the complaint be in writing (s 89).

7 Having accepted the complaint, in part or whole, the President is required to conduct an investigation (s 90). If the complaint is not declined, terminated or otherwise resolved within 18 months the complainant may request that its referred to the Tribunal (s 93A). The President may refer the complaint to the Tribunal on his/her own motion at any time providing certain circumstances are met (ss 90B and 93C). Once referred a complaint has the status of an application for an ‘original decision’ under the Administrative Decisions Tribunal Act 1997 (s 95 of the AD Act).

8 Section 94 A provides that when referring a complaint, the President must provide to the Tribunal: the original complaint; any amendment made under s 91C, and ‘any other documents or information obtained or recorded by the President that, in the opinion of the President, help to identify the subject-matter of the complaint or otherwise contain an allegation of a contravention of a provision of this Act or the regulations’. It is common practice for the President to identify in the referral the provision(s) of the Act s/he believes might have been contravened, if the alleged conduct is proven. However, there is no legislative requirement that s/he does so.

9 In my view, there is nothing within the scheme of the AD Act to support the proposition that the Tribunal is bound by the President’s characterisation of the complaint. Once the complaint is referred to the Tribunal it is open to an applicant to ‘plead’ their case as they see fit, subject to the proviso that they are bound by the parameters of the initiating complaint and any decision made by the President under ss 89 and 92 of the AD Act not set aside on review.

10 Here the applicants are not seeking to move beyond the subject matter of the initiating complaint, namely the circulation of the offending email. In my view, the initiating complaint could be read as both a complaint of both race discrimination and racial vilification. Whether ultimately, the alleged conduct if proven, would support a finding that a complaint of racial vilification is substantiated, is a matter for the substantive proceedings.

11 For these reasons, it is not necessary to amend the complaint to include an allegation of racial vilification, despite the failure of the President to refer it in those terms.

Should Mr Horner be joined to these proceedings?

12 The applicants apply to join Senior Constable Paul Horner as a respondent to these proceedings. The President, in referring the complaint to the Tribunal under s 93 B of the Act, identified the Commissioner of Police as the sole respondent. Before dealing with the substantive issue raised by this application it is necessary to determine a preliminary point raised by Mr Horner, namely whether the applicants can bring an application for him to be joined to these proceedings.

13 Competency of the Application The Tribunal’s power to join a person as a party to proceedings is contained in s 67(4) of the Administrative Decisions Tribunal Act 1997. It provides:

The Tribunal may, by order, make a person who is not a party to proceedings for:

(a) an original decision, or

(b) …

(c) …

a party to the proceedings, either of its own motion or on the written application of the person, if the Tribunal is satisfied that the interests of the person are likely to be affected by the original decision …. [emphasis added].

14 As Mr Horner correctly points out, s 67(4) gives non-parties, not parties, a right to apply to be joined to proceedings. He contends therefore that the application bought by the applicants is incompetent and cannot be entertained.

15 The Appeal Panel in Bignell v NSW Casino Control Authority (EOD) [2001] NSWADTAP 41 at [11] confirmed that the Tribunal’s discretion to join a person cannot be enlivened by the application of a party, but went on to state that a party:

[M]ay nevertheless bring to the Tribunal's attention a perceived need for joinder of a person, thereby giving rise to the Tribunal's exercise of the power, of its own motion, as it were.

16 Mr Horner questions the correctness of that approach arguing that it could be seen to subvert the AD Act by allowing a party to do indirectly what the statute does not allow it to do directly. In any event, he points out that in this case the joinder ‘application’ is not framed as an invitation to the Tribunal to act on its own motion.

17 In my opinion, the approach endorsed by the Appeal Panel in Bignell is correct. Whether the Tribunal can consider an ‘application’ not expressed in terms of an ‘invitation’, must be considered by reference to the legislative framework in which the Tribunal operates. The Tribunal has the power to determine its own procedure (s 73 (1) of the Tribunal Act); is required to act with as little formality as the circumstances of the case permit and according to the substantial merits of the case without regard to technicalities or legal forms (s 73 (3) of the Tribunal Act).

18 In a jurisdiction where the Tribunal is instructed not to allow technicalities or form to trump substance, it seems to me that it is open to the Tribunal to treat an ‘application’ to join a person made by a party, as an ‘invitation’. While the Tribunal is not compelled to consider such an application, irrespective of whether it is framed as an application, invitation or request, I do not accept Mr Horner’s contention that the ‘application’ brought in this matter must be dismissed on the ground that it is incompetent.

19 Mr Horner contends that if the Tribunal were to exercise its discretion to order joinder on its own motion, the principles of procedural fairness would demand that he be notified of the reasons the Tribunal is considering joinder and be given an opportunity to make further submissions. It is not necessary to determine this argument as I have confined myself to the issues raised by the applicants, which Mr Horner has had an opportunity to address. Therefore, any issue of procedural fairness does not arise.

20 Interests likely to be affected? The parties agree that the key issue in dispute is whether the interests of Mr Horner are likely to be affected by the Tribunal’s ultimate determination of the substantive complaint (Bignell at [11]). They also agree that relevant principles to be applied in determining whether to join a person are set out in Bignell and Spence v Roberts [2006] NSWADT 105.

21 It is argued for Mr Horner that to show that his interests are ‘likely to be affected’ it would need to be demonstrated that there is at least some prospect of findings or orders being made against him. He contends that there is no basis for any findings or orders to be made. He argues that the Tribunal must be satisfied that the applicants’ case against him ‘is strongly arguable on a prima facie basis’, apparently relying on the comments of the Appeal Panel in Bignell (at [12]).

22 I am not convinced that this is the correct approach. The first issue to be asked is whether Mr Horner is a person whose interests are likely to be affected by the determination of the substantive complaint. It seems to me that the answer is yes, irrespective of whether there is a strongly arguable case that he has contravened s 20B of the Act. In determining the applicants’ complaint of race discrimination made against the respondent, the Tribunal would be required to make findings about the origin and circulation of the offending email. From what is known thus far, this is likely to involve findings about Mr Horner. Regardless of whether those findings were adverse or favourable to him, it seems to me that, as a serving police office and an employee of the respondent, his interests ‘are likely to be affected’ by any findings made by the Tribunal about his involvement.

23 The question of whether the applicants’ case is strongly arguable on a prima facie is not a prerequisite to the exercise of the Tribunal’s power under s 67(4). This is but one of the factors to be taken into account in exercising its discretion. That was the approach adopted by the Appeal Panel in Bignell (at [12]):

[E]ven if the Tribunal makes such a finding [that the interests of the person sought to be joined are likely to be affected by the determination of the substantive complaint], there is no compulsion on the Tribunal to exercise its discretion in favour of the joinder: see Gregor v State of Victoria [2000] VCAT 414. In Gregor , the Tribunal reviewed the factors relevant to the exercise of the discretion under s 60(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998. Section 67(4) of the ADT Act, whilst not in identical terms, is to the same effect as the Victorian provision. Those factors include whether there was any delay in making the application, whether there is any prejudice to any party or to the person to be joined that might result from the granting or the refusing of the application, whether the Tribunal will, if the person is joined, have jurisdiction to deal with the case for or against that person, and whether, where the person is to be joined as a respondent, the complainant's case against that person is not strongly arguable on a prima facie basis.

24 Should the discretion be exercised? Being satisfied that the interests of Mr Horner are likely to be affected by the determination of the substantive complaint, it is now necessary to consider whether the discretion to do so should be exercised. An important factor in the exercise of that discretion will be whether there exists a strongly arguable case on a prima facie basis that Mr Horner contravened the racial vilification provisions of the AD Act (s 20C).

25 Racial vilification Section 20C(1) of the AD Act makes it unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the ground of the race of the person or members of the group.

26 To succeed in their complaint of racial vilification, the applicants would need to establish on balance that Mr Horner:

committed a public act;

which incited;

hatred towards, serious contempt for or severe ridicule of an Aboriginal person or group of Aboriginal persons;

on the ground of the race of the persons or members of that group.

27 (i) A public act Section 20B defines a ‘public act’ to include any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material. Given the breadth of this definition, it would seem that it is arguable that the dissemination of the email constituted a ‘public act’.

28 At this stage of the proceedings, there is limited information before me, namely the President’s Report and correspondence between the parties. The parties have not yet been required to file evidence.

29 This material reveals that the respondent conducted an investigation including an ‘audit trail’ into the offending email. The investigation identified a number of officers involved in the distribution of the email, of which Mr Horner was one. Disciplinary action was taken against those officers. The offending email was disseminated on the police service’s internal email system. The precise number of persons who received the email is unknown. However, the copy of the email contained in the President’s Report indicates that it was at least 20.

30 From that material, it is unclear what role Mr Horner played in the distribution of the email. The finding by the respondent that Mr Horner was responsible in some way for the circulation of the email is not binding on the Tribunal. Even if that finding is adopted, it does not of itself establish that Mr Horner ‘committed’ a public act. He contends that at its highest, the material before the Tribunal indicates that he sent the email on to one other person but not that he circulated it at large.

31 Mr Horner concedes that the term ‘public act’ is broadly defined by the Act and that the Tribunal has generally given it a liberal interpretation. See for example, Z v University of A & Ors (No 7) [2004] NSWADT 81 at [100]. Nonetheless, he points out that the Tribunal has rejected the proposition that it extends to private communications between individuals, citing, by way of example, King & Anor v Meilman East Pty Limited & Ors [2004] NSWADT 46. In that case the Tribunal found that letters sent by fax to specific recipients did not constitute a ‘public act’.

32 There is no direct evidence that Mr Horner committed a ‘public act’. However, in my view, taking the applicants’ case at its highest, there is some material capable of being converted into evidence, which if accepted could support that inference being drawn. This includes the finding made by police investigators that Mr Horner had some involvement in the distribution of the email; the respondent’s decision to discipline him on the basis of that finding; the receipt of the email by at least 20 users of the respondent’s internal email system. In reaching this conclusion, I have not had regard to Mr Horner’s claim that he did not send the email ‘at large’.

33 (ii) Incite hatred etc towards Aboriginal people Mr Horner submits that it is not seriously arguable that the contents of the email could or would ‘incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group’. He points out that the email makes no reference to Aboriginal people (or people of any race) but rather it is directed at persons in a described geographic area who engage in criminal and anti-social activity. Nor, he argues, have the applicants offered any explanation as to how the email is to be read as vilifying Aboriginal people.

34 The applicants contend that it was clear from the email, read as a whole, that it was commenting on Aboriginal people. They point out that Bourke, the subject of the email, is a town with a predominantly indigenous population. Similarly, the other towns described as Bourke’s ‘rivals’ in the email - Brewarrina, Walgett, Wilcannia and Broken Hill - have substantial indigenous populations. They assert that the ‘Central Australian Hotel’ referred to in the email as the venue for ‘Boxing’, is a hotel with a predominantly indigenous customer base. They also claim that the reference to the ‘Back Lane Boys dancing group’ is a reference to a local gang of indigenous youth. Read as a whole, they assert that the email invites stereotypes of the local indigenous population.

35 While not determinative, I note that the Assistant Commissioner of Police, was of the opinion that the derisive comments in the email were directed towards the Aboriginal community. Whether ultimately the Tribunal adopts that view is a matter for evidence and submissions. However, having regard to the contents of the email and the material provided by the applicants, in my view it is arguable that the email was referring to Aboriginal people.

36 On the basis of the above analysis, I find that there is a basis for orders to be made against Mr Horner. Therefore, it is not necessary to consider the parties’ submission in respect of the application of the aiding and abetting provisions of the AD Act.

37 Other relevant factors The following factors favour the exercise of the Tribunal’s direction to join Mr Horner. First, the unambiguous statement in the initiating complaint that the persons complained about included the persons who sent the email, and, second, the absence of any excessive delay in the making of the joinder ‘application’.

38 For these reasons I have decided to exercise the discretion to join Mr Horner as a party to the proceedings.

Orders/Directions

1. The complaint before the Tribunal is determined to comprise of allegations of race discrimination (ss 7 and 8 of the Anti–Discrimination Act 1977 (AD Act)) and racial vilification (s 20 C of the AD).

2. Mr Paul Horner is joined as party to the proceedings.

3. By consent the following timetable is to apply:

1. The matter is to be set down for mediation at a date to be fixed by the Registrar but not before 28 days from the date of this decision.

2. The parties are to confer and provide the Registrar with at least two agreed dates for the mediation.

3. In the event that the mediation does not resolve the complaint, the following timetable will come into effect:

a) Within 28 days of the mediation the applicants are to file and serve points of claim and all evidence on which they seek to rely.

b) Within 28 days of service of the applicants’ material the respondents are to file and serve points of defence and all evidence on which each seek to rely.

c) Within 14 days of service of the respondents’ material, the applicants may file and serve any evidence in reply.

d) At the conclusion of the mediation the mediator is requested to set a date for a further case conference, to be held approximately 56 days from the date of the mediation.