CITATION: Cheng v Commissioner of Police, NSW Police [2006] NSWADT 321 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Chun Wan Cheng RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 061077 HEARING DATES: 08/11/06 SUBMISSIONS CLOSED: 11/08/2006 DATE OF DECISION: 11/13/2006 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Application for leave to proceed MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Anti-Discrimination Act 1977 Police Service Act 1990 Commissioner of Police v The Estate of Edward John Russell & Ors [2002] NSWCA 272 (20 August 2002) CASES CITED: Commissioner of Police, NSW Police Service v Estate of Russell [2001] NSWSC 745 Waters v Public Transport Corporation (1991) 173 CLR 349 Xu v Sydney West Area Health Service [2006] NSWADT 3 APPLICANT In person REPRESENTATION: RESPONDENT A Friedrich, solicitor ORDERS: Leave for the complaint to be subject to proceedings in the Tribunal is refused. REASONS FOR DECISION 1 On 10 June 2003 Mr Cheng boarded a bus and paid his fare. An argument ensued with the bus driver and the police were called. When the police officer arrived Mr Cheng said that he hit his mouth and told him to shut up. He said he would not let him speak and twisted his arm, pushing him to the ground. He said the policeman yelled at him and asked for his ID and his address. He said the policeman spoke nicely to the bus driver but rudely to him and called him an idiot. Mr Cheng said he was suicidal after this incident and spent some time in hospital. He complained to the Ombudsman about the conduct of the police, but the Ombudsman found that his complaint was not substantiated. On 11 July 2005 Mr Cheng complained to the Anti-Discrimination Board (ADB) that the bus driver and the police officer had discriminated against him on the ground of his race. Mr Cheng is Chinese. 2 The President of the ADB refused to accept the complaint against the bus company because it was out of time, but accepted the complaint against the police. Presumably that was because Mr Cheng had been pursuing his complaint with the Ombudsman for much of that time. However, on 14 September 2006, the President of the ADB declined Mr Cheng's complaint of race discrimination on the basis that it was lacking in substance. He said that the complaint was based on the Mr Cheng's belief that he was treated unfairly by the NSW Police because of his race. However, the President said that Mr Cheng had not provided any evidence beyond his own belief and that the information provided to the Board by the complainant was insufficient evidence for the Board to continue to investigate the race discrimination complaint. 3 Mr Cheng decided to pursue his complaint in the Tribunal but before he can do so, he needs the Tribunal's permission or "leave": Anti-Discrimination Act 1977, s 96(1). Approach to determining leave under section 96 4 In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under s 96. I adopt those principles in relation to this case. In summary, the applicant needs to satisfy the Tribunal that there is a substantial reason for leave to be granted including that the complaint has reasonable prospects of success. Relevant provisions 5 The relevant provision that Mr Cheng would be relying on to establish that the police had acted unlawfully is s 19 of the AD Act which states that: It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race: (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. 6 If this complaint goes to a hearing, Mr Cheng would have to prove at least two matters. Firstly, that the police were providing him with a "service" within the meaning of that word in the AD Act and secondly that they discriminated against him on the ground that he was Chinese in the terms on which they provided him with that service. Direct discrimination on the ground of race is defined in s 7(1)(a) as follows: A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator: (a) 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 of a different race or who has such a relative or associate of a different race, or 7 It is enough if race was one of the grounds for the less favourable treatment: AD Act, s 4A. Were police providing Mr Cheng with a "service"? 8 Although not mentioned by the President of the ADB, a fundamental issue if this case went to a hearing would be whether or not police, when questioning suspects, are providing "services" to that person within the meaning of that term in the AD Act. Services are defined in s 4 as including "services provided by a council or public authority". The Supreme Court has recognised that NSW Police is a public authority. However, there is binding authority for the proposition that NSW Police are only providing a service to an individual suspect (as distinct from the community at large) after they have arrested that person. In the case of Commissioner of Police, NSW Police Service v Estate of Russell [2001] NSWSC 745 the Tribunal referred three questions of law to the Supreme Court under s 118 of the Administrative Decisions Tribunal Act 1997 (ADT Act). One of those questions is relevant to these proceedings. It was: Whether the conduct of the individual respondent constables in the course of their pursuance and arrest of Mr. Russell amounted to the provision of a "service" within the meaning of section 19 of the Anti-Discrimination Act, and if so whether such a "service" within the section was provided by the appellants. 9 Sully J's answer to that question was as follows: No; but the subsequent failure of those police officers to afford Mr. Russell the protection to which he was entitled in terms of section 6(3)(b) of the Police Service Act was conduct of the kind contemplated by section 19(a) of the Anti-Discrimination Act . 10 Section 19(a) of the AD Act makes it unlawful for a person who provides goods or services to discriminate against another person on the ground of race by refusing to provide the person with those goods or services. Sully J concluded that the Police Service (as it then was) is a public authority as defined in s 4(1)(e) of the AD Act . That provision includes in the definition of services "services provided by a . . . public authority". His Honour set out the provisions of s 6 and 7 of the Police Service Act 1990. That Act has since been amended by the Police Service Amendment (NSW Police) Act 2002. The relevant Act is now the Police Act 1990, which establishes NSW Police. The provisions of ss 6 and 7 are in the same terms as the Police Service Act 1990. In particular under s 6(2)(a) of the Police Act 1990, one of the functions of NSW Police is to "provide police services for New South Wales." "Police services" are defined in s 6(3)(a) and (b) to 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 . . ." 11 Sully J concluded at [43] and [44] that: It seems to me that the Police Service of New South Wales, as established by section 4 of the Police Service Act, has by reason of sections 6 and 7 of that Act, duties, functions and characteristics sufficient to establish it as a public authority in the sense discussed by the High Court. The Police Service of New South Wales cannot operate, relevantly, except by and through police officers who are serving members of the Service. It seems to me to follow that services provided by such serving police officers are services provided by a public authority in the sense contemplated by the Anti-Discrimination Act. A correct assessment of the conduct of the individual police officers in the course of their pursuit and arrest of the late Mr. Russell is in my opinion as follows: 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. 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. 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 in any other way". 12 Although the Supreme Court decision went on appeal to the Court of Appeal, that Court did not deal with the issue of the definition of "services". (C ommissioner of Police v The Estate of Edward John Russell & Ors [2002] NSWCA 272 (20 August 2002)). 13 In IW v City of Perth (1997) 191 CLR 1 at 16-17 Brennan CJ and McHugh J said that: "In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides". The identification of the relevant services is a question of fact. (Waters v Public Transport Corporation (1991) 173 CLR 349 per McHugh J at 404.) It is apparent from Sully J's decision, that a police officer will be providing "services by way of prevention and detection of crime" to members of the public when investigating an allegation that a criminal offence has been committed. But they are not providing services to an individual suspect until after that person has been arrested. Conclusion 14 On the basis of this Supreme Court authority, even if Mr Cheng could prove that his version of events occurred, it would be extremely difficult for him to establish that NSW Police were providing him with a service at the time of the incident. Consequently, the complaint, does not have reasonable prospects of success and there is no other reason to grant leave. Order Leave is refused DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.