Parker v Swan Hill Police [2000] FCA 1688

FEDERAL COURT OF AUSTRALIA

Parker v Swan Hill Police [2000] FCA 1688

EILEEN DAISY HUTSON PARKER v SWAN HILL POLICE V 379 OF 2000 NORTH J 2 OCTOBER 2000 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 379 OF 2000

BETWEEN: EILEEN DAISY HUTSON PARKER

APPLICANT

AND: SWAN HILL POLICE

RESPONDENT

JUDGE: NORTH J

DATE OF ORDER: 2 OCTOBER 2000

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 379 OF 2000

BETWEEN: EILEEN DAISY HUTSON PARKER

APPLICANT

AND: SWAN HILL POLICE

RESPONDENT

JUDGE: NORTH J

DATE: 2 OCTOBER 2000

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 Eileen Daisy Hutson Parker is the mother of Michael Parker. She has filed an application before the Human Rights and Equal Opportunity Commission (the Commission) which the Commission dealt with by a letter dated 15 September 1999. By reason of the Human Rights Legislation Amendment Act 1999 (Cth), that application was terminated and is now before the Court. It was commenced by an application filed on 5 June 2000. The respondent is named as the Swan Hill Police. 2 Before the Court is a notice of motion filed by the State of Victoria as the proper respondent in a matter involving an allegation against the Swan Hill Police. That notice of motion was filed on 4 September 2000 and it seeks orders that the proceeding be dismissed. 3 The complaint made by the applicant to the Commission and now to the Court is under the Disability Discrimination Act 1992 (Cth) (the Act). The circumstances which give rise to the application concern the death of Fay Charlton in 1983. Ultimately, Michael Parker was imprisoned for seven years after a jury found him guilty of the manslaughter of Fay Charlton. This finding was the result of a hearing under s 428 of the Crimes (Mental Health) Act 1983 (NSW). Michael Parker is intellectually disabled and was deemed unfit to stand trial until 1988 when the manslaughter finding was made. Michael Parker was released from jail in relation to Fay Charlton's death in 1990. 4 The applicant has a very strong, and very strongly expressed, belief in her son's innocence of involvement in the death of Fay Charlton. She has clearly struggled for very many years to achieve what she sees as a just outcome. She continues to assert, by reference to material which she has gathered, that the finding of her son's involvement with the death of Fay Charlton is wrong. It seems to me that Ms Parker does understand that the complaint which is presently before the Court concerns discrimination against her son, Michael, by reason of his intellectual disability. 5 In light of that appreciation, her complaint is that the police officers responsible for apprehending and questioning her son discriminated against Michael in the way they dealt with him in the early 1980's. She alleges that he was verballed and that the investigation was incomplete and that other facts exist which, if properly explored, would demonstrate Michael's innocence. One cannot help but be struck by the very strong sense of conviction that Ms Parker has over the innocence of her son and the strong belief that he has been very wrongly treated in relation to the Fay Charlton death. 6 The State of Victoria on this motion raises several arguments which are narrow in scope. Principally, the argument is that whatever the rights and wrongs about the treatment of Michael Parker over the Fay Charlton death, they occurred in 1983 or thereabouts and could not give rise to a complaint under the the Act because it only came into force in 1993. 7 A number of subsidiary arguments were addressed. Mr Harrington, who appeared on behalf of the State of Victoria and the Victoria Police, argued that affidavits sworn by Patrick Martin Greer and Robert Leslie Stephenson demonstrate that the investigation of the Charlton death was conducted not by the Victoria Police but by the New South Wales Police. That, he submitted, was a further short answer to the particular proceeding before the Court. 8 Thirdly, he contended that quite apart from Michael Parker's mother, Michael himself would not have a remedy under the Act. The nearest category into which the case might fit is discrimination in relation to the provision of services under s 24. It is an open question whether the investigatory role of the police falls within this provision. 9 Finally, Mr Harrington contended that the provisions of the Act are not retrospective and therefore, in combination with his principal submission, the present application could not possibly succeed. 10 It is established law that an application under Order 20 Rule 2(1)(a) or (b) of the Federal Court Rules must show that the proceedings are so untenable that they could not possibly succeed. It must be made clear that the issue before this Court is not whether Michael Parker was rightly found to be involved in the death of Fay Charlton or not. I well understand Ms Parker's conviction which she has expressed clearly and forcefully, that her son is innocent of involvement. That may be the case or it may not be the case. 11 The question before me is only whether, under the Act, a complaint relating to the investigation of that death is within the jurisdiction of the Court. It would be quite wrong for Ms Parker to leave the Court thinking that it had ruled in any way upon the correctness of Michael Parker's treatment by the police in 1983 or on his involvement in the death of Fay Charlton. All that I am asked to rule upon is whether the claim against the Victoria Police could possibly come within the Act. It is clear to me that the complaint could not be made under the Act because the complaint arose in or about 1983 and the Act did not take effect until 1993. In my view, the relevant provisions of the Act are not retrospective. Consequently Ms Parker's application is bound to fail and I must therefore dismiss it. 12 I emphasise that in dismissing this application I am ruling on only one issue, namely, whether the acts of the police in Victoria, if there were any, in 1983, could not give rise to a claim under the Act, which operated from 1993. On this narrow issue, I hold that the application must be dismissed.