Russell -v- Commissioner of Police, New South Wales Police Service & ors [2001] NSWADT 32

CITATION: Russell -v- Commissioner of Police, New South Wales Police Service & ors [2001] NSWADT 32 DIVISION: Equal Opportunity Division APPLICANTS Helen Russell and Ted Russell on behalf of the late Edward John Russell RESPONDENTS Commissioner of Police, New South Wales Police Service Senior Constable Mewburn Constable First Class Hook Senior Constable Mountford PARTIES: Senior Constable Bellamy Sergeant Healey Constable Gow Senior Constable Griffiths Detective Keogh Constable Morris Senior Constable Callaghan Detective Sergeant Carter FILE NUMBER: 001016 HEARING DATES: 20/07/00, 21/07/00, 12/10/00, 13/10/00 SUBMISSIONS CLOSED: 10/13/2000 DATE OF DECISION: 02/26/2001

BEFORE: Ireland G - Judicial Member; Farmer L - Member; Taksa L - Member APPLICATION: Race Discrimination - Goods and Services - Racial - Vilification MATTER FOR DECISION: Principal matter Acts Interpretation Act 1901 Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 LEGISLATION CITED : Industrial Relations Act 1988 (Cth) Occupational Health and Safety Act 1983 Police Service Act 1990 Racial Discrimination Act 1976 (Cth) Sex Discrimination Act 1984 (Cth) Graham J in M v R P/L (1988) (EOC 92-229) Pillai vs Messiter (unreported NSW court of Appeal 28 July 1988) Harou-Sourdon v TCN Channel Nine Pty Ltd [1994]EOC 92-604 Wagga Wagga Aboriginal Action Group v Eldridge [1995] 92-701 Kazak v John Fairfax Publications Limited [2000] NSWADT 77 Western Aboriginal Legal Service Limited v Jones & anor [2000] NSWADT 102 Canadian National Railway Co v Canada [1987] 1 SCR 1114 Attorney General for New South Wales v Perpetual Trustee Company Limited [1994] 92CLR113 Director General of Education & Anor v Breen & Ors [1984]EOC92-015 Sellars v Woods [1982] 45 ALR 113 CASES CITED: Chapman v Commissioner Australian Federal Police [1983] 50 ACTR 23 Enever v the King [1906] 3 CLR 969 Baume v The Commonwealth [1906] 4CLR97 Fisher v Oldham Corporation [1930] 2KB 364 Farah v The Commissioner of Police of the Metropolis [1997]1ALLER239 IW v City of Perth [1996-1997]191 CLR 1 CIC Insurance Limited v Bankstown Football Club Limited [1997] 187 CLR 384 Saraswati v The Queen [1991] 36 ALJR 402 Trevesan v The Federal Commissioner of Taxation [1991] 101 AOR 26 Minister for Immigration & Ethnic Affairs v Teoh [1995] 128 ALR at 353 Mahmut v The NSW Department of Health (unreported, 31 October 1994) Stephenson v HREOC (1996) 68 FCR 290 APPLICANT N Poynder, barrister REPRESENTATION: RESPONDENTS W Haylen QC with G Willis barrister for 1st respondent C Ronalds, barrister for 2nd, 23, 5th, 6th, 7th, 8th, 9th, 10th, 12th respondents ORDERS: 1. That the complaint, brought on behalf of the late Edward Russell, that the Police Service and the Police officers named as Second to Eleventh Respondents in the Points of Claim filed in this enquiry, unlawfully discriminated against the late Mr Edward Russell on 11th December 1993, in terms of section 7(1)(a) of the Act, is substantiated; 2. That the claim, brought on behalf of the late Mr Edward Russell, that the Police Service and the Second to Eleventh Respondents named in the Points of Claim, unlawfully vilified the late Edward Russell under Section 20(C) of the Act, is substantiated ; 3. That the claim brought on behalf of the late Mr Edward Russell that on 11th December 1993, Detective Sgt Carter, the twelfth Respondent named in the Points of Claim, unlawfully discriminated against the late Edward Russell, has not been substantiated, and the Tribunal directs that that claim be dismissed; 4. That the Police Service and the Second to Eleventh Respondents, other than Senior Constable Mountford and Senior Constable Callaghan, pay to the Estate of the late Edward Russell, as compensation for the unlawful conduct, the subject of directions 1 and 2, a total amount of $30,000.00 and that the liability of each of the Police Service and the relevant Respondents be joint and several. It is noted that the effect of this Direction will be that the Estate of the late Edward Russell will be entitled to recover the amount of $30,000.00 from any one of the Respondents. The question of the rate of contribution between the Respondents for the amount awarded was not addressed to the Tribunal and the Tribunal will consider a direction as to contribution if the Respondents make an application to the Tribunal; 5. That the New South Wales Police Service and each of the police officers being the Second to Eleventh Respondents, other than Senior Constable Mountford and Senior Constable Callaghan, within twenty-eight days of the date of the date of this decision jointly cause to be published in the Oberon Review an apology to the late Mr Edward Russell and to his parents, in the form of the apology annexed to this decision and marked 'A'; 6. That the Police Service and each of the Police officers the subject of the direction 4, individually write a letter to the parents of the late Edward Russell, containing an apology in the form annexed hereto and marked with the letter 'B'; 7. That the New South Wales Police Service cause a record to be made on the file of each of the Police Officers being the Second to Eleventh Respondents, other than Senior Constable Mountford and Senior Constable Callaghan, being a record kept by the New South Wales Police Service called 'Employee Management Record', stating that this Tribunal, after enquiry, has found that a complaint of unlawful racial discrimination and a complaint of unlawful racial vilification under the Anti-Discrimination Act 1997, arising out of the apprehension and arrest on 11th December 1993 of the late Edward Russell, against (name of officer), was substantiated.