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. Introduction 1 This enquiry by the Equal Opportunity Tribunal relates to a complaint under the Anti-Discrimination Act 1997 ("the Act") lodged by Helen and Ted Russell on behalf of their son, Edward John Russell. The complaint was lodged with the Anti-Discrimination Board on 6th February 1998. At that date Edward John Russell was alive but was in prison. He subsequently died in late 1999 in circumstances that are not the subject of this enquiry. 2 The Tribunal has assumed that the President of the Anti-Discrimination Board accepted the complaint under Section 88(2) of the Act, which permits a complaint to be made on behalf of another person if the person is under eighteen (18) years of age or has a disability. The evidence before the Tribunal would support the President of the Anti-Discrimination Board being satisfied, in accordance with that Section, that Edward John Russell was a person with a disability and that he consented to the lodgment of the complaint. No reference to this background is made in the report by the President of the Anti-Discrimination Board to the Tribunal, a document which by consent of the parties, was an exhibit for the enquiry. The Respondents did not take issue that the complaint was properly founded under Section 88(2) of the Act. 3 On the death of Edward John Russell in 1999, pursuant to Section 88A of the Act, the complaint survived and continued to be maintained by his parents, Helen and Ted Russell. Section 88A of the Act is in the following terms: 88A. Death of complainant does not terminate complaint (1) If a complainant dies before his or her complaint is finally determined, the complaint survives and the estate of the complainant: (a) may continue the carriage of the complaint, including any appeal, and (b) is entitled to the benefit of any monetary sum ordered to be paid by the respondent in respect of the complaint. (2) If a respondent dies before any complaint against him or her is finally determined, the complainant may continue to pursue the complaint (including any appeal) and any monetary sum ordered to be paid in respect of the complaint is payable from the estate of the respondent. 4 The material in the report by the Board to the Tribunal shows that the Board, in referring the complaint to the Respondents, interpreted the grounds of the complaint in terms different to the manner in which Counsel for the Applicant presented the complaint to the Tribunal. The Points of Claim filed by the Applicant were framed in terms consistent with the complaint as formulated by the Board. On the first day of hearing, Counsel for the Applicant sought leave to amend the Points of Claim. No objection was made by the Respondents to the manner in which the Applicant amended the Points of Claim. The enquiry proceeded with the evidence and arguments based on the amendment of the Claim made by the Applicant on 20th July 2000. Claims are made against 11 police officers and against the New South Wales Police Service (The Police Service) as the employer of those police officers, under Section 53 of the Act. 5 Two of the police officers, Senior Constable Mountford and Senior Constable Callaghan, are no longer member of the Police Service and they were not served notices of the Hearing of the enquiry. They did not appear at the enquiry nor were they represented, and in these circumstances the Tribunal considers that it is unable to make those two former police officers the subject of any direction or award arising out of its decision, but the two individuals may be the subject of findings by the Tribunal in relation to their conduct. 6 The remaining nine police officers who are Respondents, were represented by Counsel, as was the New South Wales Police Service. 7 Mr Haylen QC, for the Police Service, did not contest the evidence of the Applicants. He confined his presentation to the Tribunal to the questions relating to the application of Section 53 of the Act to the Police Service and questioned whether the circumstances of the complaint involved the provision of services by the police officers of the Police Service. 8 Ms Ronalds, representing the nine (9) police officers, did not cross examine the witnesses who gave evidence on behalf of the Applicants, and nor did the police officers give evidence before the Tribunal or produce evidence to the Tribunal. CIRCUMSTANCES OF THE COMPLAINT 9 Mr and Mrs Russell allege that at approximately 2.00am on 11th December 1993, their son, Edward John Russell was apprehended and arrested at the Wisemans Creek Road in Oberon in New South Wales and that ten of the police officers who are Respondents, (who will be called "the police officers") were in attendance at the scene of the arrest. The eleventh police officer Respondent, Detective Sergeant Carter (hereafter called "Sgt Carter") interviewed Edward John Russell at the Bathurst Police Station on the morning of 11th December 1993. Sgt Carter was not present at the scene of the arrest. 10 It is alleged that the 11 police officers, in carrying out the apprehension and arrest of Edward John Russell (hereinafter called "Edward Russell") unlawfully discriminated against him on the ground of his race, and on the ground of his race, subjected him to unlawful racial vilification. 11 In relation to Sgt Carter, it is alleged that in the interview of Edward Russell, Sgt Carter unlawfully discriminated against Edward Russell on the grounds of his race, by failing to notify the Police Service of a complaint by Edward Russell that he had been assaulted and injured during his arrest at Oberon. The evidence shows that the eleven police officers denied these allegations. Although Respondents Mountford and Callaghan did not participate in the hearing, they had in police internal investigations, denied the allegations. 12 The complaint further alleges that the Police Service, as the employer of the police officers, is vicariously liable for the unlawful acts of the police officers. FORMULATION OF CLAIMS 13 Consideration needs to be given at an early stage to the application of the Act to the allegations arising out of the complaint as outlined in the introduction. Difficulty has been experienced by the Applicant, and indeed by the Board, in the determination of the precise application of the Act to the circumstances as alleged in the complaint. As a result of the amendments to the claims made by the Applicant at the beginning of the enquiry, the Tribunal sees the need to precisely formulate the claims in accordance with those amendments, in order to ensure that in examining the variety of issues that have been presented to it, those issues can be addressed within the proper framework of the claims. 14 The Tribunal has proceeded to examine the following claims: (i) That the conduct and language of the police officers towards Edward Russell during his apprehension and arrest on 11th December 1993, contravened Section 7 (1) (a) of the Act by discriminating against him, on the ground of his race. (ii) That Sgt Carter contravened Section 7(1)(a) of the Act, on 11th December 1993, at the Bathurst Police Station, by failing to report to the Police Service a complaint made by Edward Russell that he had been assaulted and injured during his apprehension and arrest, and that the failure of Sgt Carter discriminated against Edward Russell on the ground of his race. (iii) That the circumstances of the conduct and language of the police officers at Oberon on 11th December 1993 during the apprehension and arrest of Edward Russell, constituted unlawful racial vilification, under Section 20(C) of the Act, as it incited hatred towards, serious contempt for, and severe ridicule of Edward Russell, on the grounds of his race. (iv) The Police Service, as the employer of the police officers and of Sgt Carter and of Respondents Mountford and Callaghan, on 11th December 1993, under Section 53 of the Act, was deemed to have done the acts done by the Respondents on 11th December 1993 in relation to Edward John Russell, and those acts constitute contraventions of the Act. (v) The contraventions of the Act deemed to have been done by the New South Wales Police Service, were unlawful:- (a) under Section 19(b) of the Act, those acts related to the terms on which the Police Service provided services to Edward Russell; (b) by virtue of the breach of Section 20(C) of the Act; (vi) The conduct and language of the police officers towards Edward Russell during his apprehension and arrest at Oberon on 11 December 1993, was unlawful, by virtue of Section 52 of the Act, as the conduct and language caused, induced, aided and permitted the Police Service to act unlawfully in breach of the Act. 15 The claims, shortly stated, are that the police officers, Sgt Carter and the Police Service unlawfully discriminated against Edward Russell and that the police officers and the Police Service unlawfully, racially vilified Edward Russell. 16 The operation of Section 53 of the Act in relation to the discrimination provisions of the Act was canvassed by Graham J in M v R P/L (1988) (EOC 92-229) at 77174: "In so holding, that conclusion is not based on the fifth submission made by Mr Harben. In that submission, counsel for the complainant sought to rely upon what was said by Matthews J. in O'Callaghan v. Loder (No. 1)(1984) EOC 992-022 AT 75,494 where after paraphrasing sec. 53, her Honour said: "It preserves the liability of the agent or employee." Mr Harben's submission seeks to read into her Honour's remarks what is not there, namely an assertion that there is some pre-existing liability on the part of the employee. Those remarks should read as simply acknowledging the force of the provision in sec. 53 to the effect that the act of the employee is deemed to be done by the employer as well as by the employee. In other words, the section does not deem the act to be no longer that of the employee. It follows that any legal liability on the part of the employee arising from any other provision of the Act is still able to attach to the acts of the employee. To acknowledge that position is a far cry from asserting that sec. 53 creates some new or specific legal liability on the part of the employee." THE EVIDENCE 17 In the evidence available to the Tribunal, details of the occurrences of the apprehension and arrest of Edward Russell on 11th December 1993, are limited. The death of Edward Russell restricted the Tribunal to assess his evidence from two statements. Firstly, a statement prepared by an investigating police officer, for an Internal Affairs Investigation of a complaint relating to the apprehension and arrest of Edward Russell. That statement was dated 18th May 1994, approximately 6 months after the arrest. At that time Edward Russell was in Bathurst Jail serving a sentence relating to offences prior to and unconnected to the events of 11th December 1993. The other statement of Edward Russell was one taken by his Solicitor at Long Bay Jail on 1st July 1998, for the purposes of this enquiry. Both of those statements are not comprehensive in describing details of the events that occurred on 11th December 1993. Having regard to the medical reports produced to the Tribunal about Edward Russell's limited mental capacity, his deafness and his state of illiteracy, it is clear that Edward Russell had difficulty in expressing himself in clear and logical terms. His conditions in the jails and his mental state would have made it difficult for him to concentrate and to recollect details of past events. The statements however contain information which the Tribunal has found helpful in its examination of the details of what occurred on the morning of 11th December 1993. 18 The Tribunal, in its examination of those details was not helped by the absence of evidence of the police officers. It has been submitted, and the Tribunal accepts, that it is entitled to infer from the absence of evidence from the police officers, that had they given evidence, their evidence would not have assisted them in their denial of the allegations of racial discrimination and racial vilification. 19 The Applicant called evidence of seven witnesses, each of whom had submitted written statements which were confirmed before the Tribunal. In the case of some witnesses, notably, Mr Milton Curnuck, Mrs Jennifer Curnuck and Mr Ben Curnuck, their statements were supported by oral evidence. None of the witnesses called by the Applicant were the subject of cross examination by either the First Respondent or by the police officers. In these circumstances the Tribunal is entitled to accept, as it does, that the evidence of the witnesses called by the Applicant, is truthful and reliance can be placed on the accuracy of that evidence. 20 To understand the context of the material which relates to the details of what occurred at Oberon on 11th December 1993 and on which the Tribunal has placed reliance, it is necessary to relate the events that occurred after the arrest and caused the material to be produced. 21 Mr Milton Curnuck, who with members of his family and unknown to the police officers at the time, overheard and observed portions of the language and conduct of the police officers at the scene of the arrest, was so disturbed by his experience that later on during the day of 11th December 1993, he wrote to the Editor of the local newspaper, The Oberon Review. In that letter Mr Curnuck criticised the actions of the police officers, in very strong terms. Mr Curnuck was contacted by a representative of the newspaper, which on 19th January 1994 published an article relating to the letter written by Mr Curnuck and the circumstances of the arrest described by Mr Curnuck to the newspaper representative. 22 About a month or so after the incident, Mr Curnuck was interviewed by the local television station, MTN Nine, which subsequently telecast a news segment of the interview. 23 As a result of the publicity arising out of the publication of the article in The Oberon Review, Chief Inspector Rayner, Control Commander at Bathurst, sent a copy of the newspaper article to the Commander of Internal Affairs of the Police Service and on 21st January 1994, C/I Rayner took a statement from Mr Curnuck which was then forwarded to the Internal Affairs Department. The statement of Mr Curnuck was the statement that he produced to the enquiry. 24 The Internal Affairs Department of the Police Service commenced an investigation of the activities of the police officers in relation to the incidents on 11th December 1993 and at the same time referred the matter to the New South Wales Ombudsman and reported the matter to the Independent Commission against Corruption. The Internal Affairs investigation was conducted by Detective Senior Sgt Grossmith, who reported his findings to his Senior Officer on 2nd June 1994. The Police Service produced to the enquiry a copy of that report and some of its attachments were produced to the Tribunal. However 16 attachments which comprised the reports and answers of each of the police officers and of other police officers were not produced because the Tribunal was advised by the Police Service, "Section 170 of the Police Service Act applies" to those attachments. The attachments to the report of Detective Senior Sgt Grossmith and produced to the Tribunal were:- copies of the Brief of Evidence against Edward Russell – it appears that this Brief was used when Edward Russell was brought before the Bathurst Court on charges arising out of the incidents on 11th December 1993; a series of photographs of the site of the arrest and of police vehicles; records of the Bathurst Police Station including a Police Occurrence Record made at 3.15am on 11th December 1993 and at 12.15pm on that day. Attached to the Brief of Evidence were statements of ten police officers who were present either at the arrest or at the Bathurst Police Station on 11th December 1993. Eight of the ten statements are by Respondent police officers and of those eight statements, the copies of the statements of Snr Constable Mewburn, Snr Constable Mountford, Snr Constable Bellamy and Constable Gow, are of such poor quality that they are illegible. The originals of these statements were not produced to the Tribunal and no explanation was given to the Tribunal for the unsatisfactory state of the copies. There is no explanation given to the Tribunal why the copies of the statements of the other six officers were quite legible in contrast to the condition of the copies of the statements of these four police officers. Included in the legible material are copies of statements by Sgt Carter. After the closing of submissions to the Tribunal, at the request of the judicial member of the Tribunal, the Police Service produced further copies of the statements of the six police officers, in a state, which enabled the Tribunal to read the statements. 25 The report to the Tribunal by the President of the Board, contains statements by eight of the police officers which were submitted by the Solicitor acting for the police officers, in answer to the request for information by the Board made on 8 July 1999. In his covering letter, the Solicitor states that at that time Snr Constable Griffiths was hospitalised and was on long term sick leave and was unable to complete a statement. The statements include statements from Snr Constable Gow, Snr Constable Mewburn and Sr Constable Bellamy and Sgt Carter. No statements were received by the Board in response to its request for information from Snr Constable Mountford or Snr Constable Callaghan. The Police Service produced to the enquiry the Statement of Provisional Findings and Recommendations by the NSW Ombudsman in relation to its enquiry. The Statement is dated 22nd March 1996. In the face of objections by Counsel for the police officers, the Tribunal accepted into evidence a copy of that Report but with the reservation that the Tribunal would have regard to the material in the report other than the findings of the Ombudsman. The Tribunal came to the conclusion that the issues being investigated by the Ombudsman were not necessarily identical or sufficiently similar to the issues to be addressed by the Tribunal in relation to the incidents the subject of this enquiry, to justify receiving the Ombudsman's conclusions as evidence in this enquiry. The Ombudsman's statement contains extracts of statements made by the police officers in the course of the Police investigation. The Tribunal has had regard to those extracts as supportive of evidence of other witnesses. 26 The investigation of the complaint of Mr Curnuck by the Internal Affairs Department of the Police Service considered two issues. Firstly, that Edward Russell was subjected to abusive and indecent language by police on 11th December 1993, and secondly, on that date he was assaulted by an unidentified police officer. On the first issue, the Report states: "Having regard to the evidence available, I am of the belief that abusive language was used by a Police Officer who cannot be identified. The language concerned varies from that of Mr Curnuck to that of the complainant. However, the words "dickhead" are common to both complaints. Accordingly I find that this issue is sustained against an unidentified police officer. As the identity of the police officer remains unknown, I recommend that no further action be taken." 27 On the second issue, the report concludes: "25. Medical evidence from the Bathurst Jail shows that Russell was treated on 11th December 1993 for an alleged police assault. Injuries recorded are swollen left hand, swelling above left ear, handcuff marks, grazed back of shoulder, scratches to left upper chest. These injuries could be consistent with the fact that Russell was charged with two counts of Resist Arrest and three counts of Assault Police as recorded in the Brief of Evidence as attachment 21." "26. Having regard to all of the evidence I am of the opinion that the accounts given are conflicting and accordingly I find that the issue is not sustained." "27. In view of the conflicting statements, I am unable to determine where the truth lies. I therefore recommend that no further action be taken respecting this issue." The following paragraphs are contained in the report under the heading "General Comments": "28. I interviewed Edward John Russell on 18th May 1994 at the Bathurst Prison. I gained the impression that he was slow, introverted and possessed a very undeveloped intelligence." 28 The recommendations by the investigating officer were endorsed by a senior officer of the Police Service and no further action was taken at that stage, other than a copy of the report was sent to the Ombudsman under cover of a letter dated 16th June 1994. 29 By letter dated 24th November 1994, the Ombudsman wrote to the Police Service advising that he was not satisfied with the Police investigation due to deficiencies in that investigation. In relation to the first issue, the Ombudsman stated: "I find the S146 Report deficient in that it does not address the issue arising out of this conclusion, namely, the consideration of the truthfulness or otherwise of all of the officers present at the time of the arrest of Mr Russell." 30 The Ombudsman sets out details as to the reasons for his view of the deficiency of the investigation in relation to issue one. The Ombudsman refers to a more recent complaint received from the "Aboriginal Deaths in Custody Watch Committee" on behalf of Mr J E Russell. The Ombudsman requests that as the latter report deals with the same incident, that the two files be handled concurrently and pointed out that the latter complaint raises further points for investigation. 31 The Police Service referred the matter for further investigation by the Major Crime Squad on 12th December 1994. The Police Service supplied the Tribunal with:- a copy of the Executive Summary by Inspector A W Dick of the further investigation; a copy of a Report by Inspector Dick to the Commander of Internal Affairs North West Region dated 15th March 1995 and a list of attachments to that Report. The attachments were not produced to the Tribunal. The list shows that the attachments contain records of interviews between Inspector Dick and four of the police officers and also a record of interview between Inspector Dick and Detective Sgt Grossmith. The issues that Inspector Dick investigated were, firstly, that Sgt Carter failed to notify the Office of Internal Affairs of the complaint under the Police Service Act. Inspector Dick reported that the investigation disclosed insufficient evidence to support the allegations and he found the issue not sustained and he recommended that no criminal or departmental charges be preferred. The second issue was that the police at Bathurst, particularly Sgt Carter and Sgt Toohey failed to comply with recommendations of the Aboriginal Deaths in Custody report concerning facilitation of contact between Aboriginal persons in custody, relatives and family, particularly John Bugg who had guardianship of Russell. Inspector Dick found that the evidence is clearly contrary to the allegations made and he found the issue not sustained. He recommended that no criminal or departmental charges be preferred in relation to that matter. The third issue was that Detective Sgt Grossmith attempted to improperly obtain Edward Russell's medical records relating to his past medical history from his parents. Inspector Dick found that the investigations failed to establish evidence to support this charge and he found that the issue was not sustained and recommended no action. 32 The fourth issue was that Detective Sgt Grossmith failed to properly investigate the alleged assault on Mr Russell on 11th December 1993. Dealing with this complaint, Inspector Dick makes the observation that Mr Curnuck "reveals that he is a person who jumps to conclusions". Inspector Dick found that the evidence from the re-investigation of the matter does not in any way support the allegations and confirms the findings that Detective Sgt Grossmith arrived at on the first occasion and he found this issue not sustained and recommended no charges. 33 In dealing with the charge by the Ombudsman that the original investigation was deficient, Inspector Dick concludes: "Mr Curnuck, unfortunately by the comments and conflicting information he has provided, has made himself a witness from whom little reliance could be placed. Competent cross-examination of Mr Curnuck would see his credibility destroyed." 34 Inspector Dick does not make a specific finding in relation to the Ombudsman's criticism of deficiencies. This report was sent to the Ombudsman by letter dated 28th March 1995. On 22nd March 1996 the Ombudsman issued his Statement of Provisional Findings and Recommendations. In October 1996, the Police Service referred to the Director of Public Prosecutions for advice as to whether criminal charges could be laid against any of the police officers and advice was sought from the legal branch of the Service on the question of departmental charges or any other action against the police officers. The Director of Public Prosecutions advised the Police Service that there was insufficient evidence to lay charges against the police officers. No departmental charges appear to have been made against the police officers. 35 The Police Service received the final report of the Ombudsman under cover of letter dated 23rd December 1997. A copy of that report is contained in the President's Report to the Tribunal. In relation to the first issue of the use of offensive and abusive language on 11th December 1993, he states that he is unable to identify the police officers who used the language. He then states: "I note that in arriving at this view, I have been constrained through the conflicting versions to reject the majority of the police evidence in respect of this issue of the complaint as untruthful." 36 The second issue relating to the assault on Edward Russell, the Ombudsman stated: "In the light of my conclusion on the previous issue relating to the abusive and offensive language, the credit of the police has been adversely affected and I do not accept their evidence on this issue." 37 Under the heading, "Deficiencies of the Investigation", a section headed "Possible Untruthfulness of Officers", the Ombudsman states: "In the circumstances, I must find that a number of police have adopted a position in respect of the allegation of abusive and indecent language which is completely at odds with my sustained finding. From the evidence of police as shown in paragraph 6.5, I note that a number of police must have been present at the time the abusive and indecent language was used." Later in the same section the Ombudsman states: "To the extent that some, if not all, police were in the hearing of the abusive and indecent language, and no other explanation is available for the singular denials that such language was used, then those police must have been untruthful. Such a matter is one of credit." At the end of that section, the Ombudsman states: "I consider the evidence offered by these police in respect of the assault to be devalued and of little persuasive effect." 38 The report of the Ombudsman concludes with a number of recommendations including: "18.5 That a formal written apology be provided to Mr Curnuck in respect of the conduct of police witnessed by him and his family on 11th December 1993. 18.6 That the New South Wales Police service consider strong managerial action in respect of the officers concerned for failing to appropriately respond to the appalling treatment to which Mr Russell was subjected. 18.8 That a formal written apology be sent to Mr Russell and that the question of an ex gratia payment of compensation be raised with the legal authorised representatives of Mr Russell. Negotiations in respect of an ex gratia payment of compensation should be undertaken by police in good faith." 39 The Police Service advised the Tribunal that a Statement of Regret was forwarded to Mr Russell on behalf of the Service and that a similar letter was forwarded to Mr Curnuck. The relevant part of the letter to Mr Russell reads: "On behalf of the Chifley Local Area Command (formerly Bathurst Patrol), I wish to express the regret of this organisation that police exhibited a lack of professionalism for consideration during the pursuit and your apprehension on the evening of 11th December 1993" 40 By letters dated 29th May 1998, Commander Brammer of the Internal Affairs Unit of the Police Service wrote to the police officers, other than Messrs Mountford and Gow, who the Police Service advised had left the Service in 1995. The letter to Sgt Carter advised him that no formal disciplinary action was to be taken, "However, a record of the comments at paragraph 8.7 of the report (of the Ombudsman) in relation to your involvement after this incident will be noted on your Employee Management Record." 41 The letter to the other eight police officers was in different terms and contained the following paragraphs: "In the course of the investigations sufficient evidence was found to support the serious allegations that an officer, or officers unknown, assaulted Mr Russell in the early hours of 11th December 1993 and directed abusive, offensive and threatening language towards him. As serious as these findings are, of equal concern is the indication that some, if not all officers present, were untruthful with the investigator and have omitted or chosen to ignore facts in order to protect the offending officer. This issue of lying by omission was raised in many instances as a consistent concern throughout the Royal Commission. ….. A record of your involvement in this incident is recorded on the Complaints Information System." 42 On the same day, that is 29th May 1998, Commander Brammer wrote to the Assistant Ombudsman. This letter contained the following comments: "All officers involved in the matter have been forwarded a copy of your Report along with a letter from this Command detailing the indicted collusion which occurred and the detrimental affect this has on the Police Service ….. An entry is to be made on the appropriate service records of each office(r) of the incident and their involvement. …." 43 Also on 29th May 1998, Commander Brammer wrote to the Commander of the Chifley Local Command. The letter contains the following statements: "…. As all the involved officers are located at the Chifley Local Command Area, it would be appreciated if you would arrange for a formal 'familiarisation session' to be made available to all involved staff, the results of which will be noted in the officers' individual Employee Management Record. Given the seriousness of the apparent collusion between all of the officers, I have decided to supply a copy of the Assistant Ombudsman's final report to all involved officers. I would like each officer to read the document, make a notation that they are aware of its contents and return the papers to this office within twenty eight (28) days. I recommend that you discuss the circumstances of this complaint in the context of breaking down the negative elements of the 'old culture' and embracing the Code of Conduct and Ethics. An entry is to be made on the appropriate Service records of each office(r) of the incident and their involvement. In addition, records should be maintained of their receipt of your report and my letter." 44 The records of the police investigations and the dealings with the Ombudsman and the subsequent police actions, were produced as annexures to an Affidavit by Detective Inspector Alan Champion of the Police Internal Affairs and Special Crime Unit. In his evidence to the Tribunal, Inspector Champion stated that a copy of the letters sent by Commander Brammer to the police officers, is attached the Complaints Investigation File which is kept in a hard copy and where a police officer applies for promotion regard is had to the information on that System. That system is distinct from the Employee Management Records, which are maintained in the Human Resources Area of the Police Service. 45 The statements supplied to the Board by seven of the police officers who were at Oberon at the site of the incidents on 11th December 1993 were forwarded to the Board under cover of the Solicitor's letter dated 7 September 1999. Each of the statements was made at the Bathurst Police Station. Six of the statements were dated 2nd September 1999 and two of the statements were undated but were made in answer to the request from the Board of 8th July 1999. Each of the statements was therefore made after the police officers had received a copy of the Ombudsman's Report from the Commander of Internal Affairs and had been advised by the Commander of the serious nature of the findings against the Police officers in that report, including the statement of the Commander that some, if not all officers present, were untruthful with the investigator and had omitted or chosen to ignore facts in order to protect the offending officer. Each of the police officers, in his statement to the Board, denies that he used any racist or unseemly language towards Edward Russell during his arrest and denies that he heard any other police officers at the scene of the arrest use any racist or offensive language to Edward Russell. The statements also contain a denial that either the police officer unlawfully assaulted Edward Russell or that he saw any other police officer assault Edward Russell during his arrest. 46 The Tribunal has considered this material together with the evidence of the witnesses presented by the Applicant in considering its findings of whether the police officers or one or more of them discriminated against Edward Russell in his apprehension and arrest on 11th December 1993 and whether during the apprehension and arrest of Edward Russell the police officers subjected him to unlawful racial vilification. These matters were considered by the Tribunal separately to the issue as to whether Sgt Carter at the Bathurst Police Station later in the morning of 11th December 1993 discriminated against Edward Russell on the ground of his race. RACIAL DISCRIMINATION 47 The claim of unlawful racial discrimination against the police officers and the New South Wales Police Service, arises under Section 7(1)(a), Section 19(b), Section 53 and 52 of the Act. At the date of Hearing of the enquiry, those provisions were in the following terms: " 7 What constitutes discrimination on the ground of race (1) 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" "19 Provision of goods and services It is unlawful for a person who provides (whether or not for payment) goods and 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." "53. Liability of principals and employers (1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer who also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. (2) If both the principal and employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability. (3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act. (4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services." "52 Aiding and abetting etc It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act." 48 Section 19 was included in the Act, in substitution for the existing provision, by the Anti-Discrimination Amendment Act 1997 ("the Amending Act") which commenced in 4th July 1997. The Amending Act also inserted sub-sections (3) and (4) of Section 53. 49 The question arises whether Section 19 in its present form and subsection (3) of Section 53, have application to a contravention of the Act arising out of acts done before the Amending Act, and, as in this enquiry, to a complaint under the Act made before the commencement of the Amending Act. 50 The Amending Act inserted Part 3 to Schedule 1 of the Act. Schedule 1 relates to savings and transitional provisions. Part 3 of Schedule 1 contains provisions relating to sections of the Amending Act which are expressed not to affect complaints or proceedings made before the commencement of the Amending Act. These provisions do not include the amendments relating to Section 19 and Section 53(3), about which the transitional provisions in Part 3 are silent. 51 Part 2 of Schedule 1 of the Act was inserted by the Anti-Discrimination Amendment Act 1994. That Act contained a number of amendments to the substantive provisions of the Act. Section 3 of Part 2 of the 1994 Amending Act explicitly provides for the amendments contained in the Act to not apply to anything done before the commencement of that Act and it further provides that the Act before the amendments will continue to apply as if the amendments had not been made. Part 3 of Schedule 1 does not contain a similar provision. 52 There is a sharp contrast between the transitional provisions affecting the amendments made by the 1994 and the 1997 amending legislation. In the view of the Tribunal this contrast signifies an intention by the parliament that the 1997 Amending Act was to apply to certain circumstances occurring before and to complaints made before the commencement of that Amending Act, except for the operation of the sections which are expressed not to apply retrospectively. 53 Section 30(1) of the Interpretation Act (NSW) 1987("the Interpretation Act") provides that an amendment of an Act does not: "(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act." 54 The subsection further provides that any investigation, legal proceeding, or remedy may be constituted, continued or enforced as if the Act has not been amended. 55 Section 5(2) of the Interpretation Act provides for the application of that Act to all Acts unless a contrary intention appears in the Act. McHugh J (Clarke & Rogers JA agreeing) in Pillai vs Messiter (unreported NSW court of Appeal 28 July 1988) dealt with the relation between these provisions, in these terms: "Mr Sackar sought to rely on the well known decision of the Privy Counsel in Colonial Sugar Refining company vs Irving (1905) AC 369, the decision in Continental Liquiers Limited vs G F Heublein (1959) 103 CLR 422, and the principal enshrined in Section 30 of the Interpretation Act 1987. However, sections such as Section 30 which preserve accrued rights are always subject to any contrary legislative intention. In my view the manifest intention of the amending legislation in 1987 was to require a case such as the present to be dealt with under Section 32U of the Medical Practitioners Act 1938 and not otherwise." 56 In the view of the Tribunal, the contrast between the transitional provisions of the 1994 and 1997 Amending Acts is a sufficient indication of a contrary intention of Parliament that the amendments in 1997, except for the exclusion of the sections expressly made to apply retrospectively, will apply to circumstances and to complaints existing before the Amending Act commenced. 57 This issue was not canvassed in any depth by Counsel who in their submissions, proceeded on the basis that Section 19 as contained in the Amending Act and subsection (3) of Section 53, inserted by the Amending Act, applied to the complaints dealt with in this enquiry. The Tribunal considers that is the correct approach and has proceeded to consider the complaints on the basis that those provisions apply to the complaints. EVENTS AT OBERON 58 To determine the claim of racial discrimination, the Tribunal is required, from the evidence and material placed before it, to unravel the details of what occurred at 2.00am on 11th December 1993 in Wisemans Creek Road, Oberon during the process in which the police officers apprehended and arrested Edward Russell. The police officers who did not give evidence before the Tribunal, on each of the occasions when they have been required to make statements of their individual involvement in that incident, deny individually they used racist language or that they heard other police officers use racist language or that they individually or the other officers conducted themselves towards Edward Russell in a manner other than was necessary to restrain and place Edward Russell into custody. The statements of the police officers have been outlined earlier in this decision. When some of those statements have been examined independently by the Ombudsman, that official expressed doubts about the truthfulness of the statements. The Tribunal cannot ignore the Ombudsman's opinion although it accepts that it is not bound by that opinion, particularly as the Ombudsman was examining the statements in relation to different legislation to the legislation under which the Tribunal is examining the veracity of the police officers in this enquiry. The Commander of the Internal Affairs Unit of the Police Service accepted the untruthfulness of the statements of the police officers in the Internal Affairs investigation enquiries which were considered in detail by the Ombudsman. The doubts of Commander Brammer were expressed in his letter to the Assistant Ombudsman of 29th May 1998 when he spoke of "the indicted collusion which occurred and the detrimental effect this has had on the Police Service" and he repeated his views in his letter of directions to the Commander of the local area. Despite the statement by the Ombudsman that he considered their statements to be untruthful, and notwithstanding the stricture of their conduct by Commander Brammer, the seven police officers who subsequently replied to the Board's request for a response to the complaints, maintained their denial that their actions or the actions of other police officers on 11 December 1993 involved any wrongdoing. 59 The Tribunal has formed the view that the conclusions reached by the Ombudsman and the Commander of the Internal Affairs Unit of the Police Service are correct especially when considered with the evidence of Mr and Mrs Curnuck and Mr Ben Curnuck and the statements of Mr Edward Russell. Having had the benefit of observing Mr and Mrs Curnuck and Mr Ben Curnuck in their presentation of evidence to the Tribunal, the Tribunal accepts the evidence of those witnesses including the statements of Edward Russell in preference to the denials of the police officers. Wherever the details in the evidence of the parties are in conflict, the Tribunal has given preference to the evidence of Mr and Mrs Curnuck and Mr Ben Curnuck and the statement of Edward Russell. 60 The absence of evidence before the Tribunal from the police officers, in the face of the evidence of Mr and Mrs Curnuck and Mr Ben Curnuck in particular, gives particular weight to the inference that had those police officers given evidence before the Tribunal, their evidence would not have supported their denials of the use of abusive language and unnecessary use of force in the apprehension and arrest of Edward Russell. 61 It becomes necessary to examine in detail the circumstances relating to the apprehension and arrest of Edward Russell and the evidence from the statements of Edward Russell and from Mr and Mrs Curnuck and Mr Ben Curnuck. The events leading to the arrest of Edward Russell are described in the Brief on Evidence prepared by Senior Constable Mewburn on 11th December 1993. He stated that at 1.05 am on that morning he was in Bathurst in the Patrol car 201 with Constable Hook when he observed a Holden Utility which he attempted to stop for a mobile random breath-test. The driver failed to stop and proceeded through the streets of Bathurst at considerable speed in what he be described as a reckless manner. Senior Constable Mewburn describes in detail the pursuit by Bathurst 201 through the streets of Bathurst and then onto the Mitchell Highway towards Orange. At that time Bathurst 202 with Senior Constables Mountford and Bellamy joined the chase together with Bathurst 10 with Sgt Healy and Constable Gow and Bathurst 2 with Constable Morris. Detective Sgt Mewburn describes the situation on the Rocks Creek Road when the utility diverged sharply to the left across three lanes and collided with Bathurst 202. Edward Russell gives a different account of this event and he stated that Bathurst 202 deliberately collided with the side of the utility and forced the utility to stop. He said that the police car spun around and nearly rolled over. There was also evidence that at that stage a police officer from one of the vehicles, using his baton, smashed the front windscreen of the ute. This did not stop the ute which then proceeded at reckless speed back into and through the town of Bathurst. During this stage of the pursuit Detective Sgt Mewburn describes that full bottles of beer were thrown out of the ute into the path of the pursuing police vehicles. 62 The pursuit proceeded through the township of Oberon and then headed back towards Bathurst and it finally stopped in Wisemans Creek Road when the engine failed. At that point, the utility veered to the left down an embankment. Detective Sgt Mewburn stated: "The offender alighted from the vehicle, turned and faced Senior Constable Mountford and Constable Gow and commenced to strike out at them with closed fists. He continued to struggle violently and with the assistance of other police he was forced to the ground and handcuffed and placed into the rear of Bathurst 2 and conveyed to the Bathurst Police Station." 63 Detective Sgt Mewburn's statement shows that the ute had been stolen from outside the Bathurst Leagues Club by Edward Russell not long before 1.00am on 11th December 1993. That account of the police chase of Edward Russell shows that there were four police vehicles involved. In addition, there was a fifth vehicle being the Police Physical Evidence Section vehicle which Detective Sgt Keogh and Snr Constable Griffiths drove from the Bathurst Police Station when they heard on the police radio that the chase was developing. That police vehicle arrived at the Wisemans Creek Road at the time when the ute ran down the embankment. 64 There is no dispute that the evidence establishes that Edward Russell had participated in a dangerous and dramatic escapade in the stolen ute and that the vehicle containing Constables Mountford and Bellamy was involved in a collision with the ute during the chase, in circumstances where those police officers were in special danger. There is an issue, that is not relevant to be determined by the Tribunal, as to whether that collision was a result of actions instituted by Constables Mountford and Bellamy or by Edward Russell. A chase of this nature with elements of particular danger could be expected to arouse high emotion in all of those involved. 65 When the ute finally stopped, Sgt Healy described in this statement that just before the point at which the ute left the road, his Bathurst 10 vehicle was the lead vehicle in the chase closely followed by Bathurst 202 with Constables Mountford and Bellamy. Sgt Healy stated that Snr Constable Mountford was the first police officer to go down the embankment to the ute. Sgt Healy said that when he alighted from his vehicle and looked down the embankment he saw Snr Constables Mountford and Bellamy attempting to arrest Mr Russell and that he saw Constable Hook assisting them. Constable Gow, who had been in Sgt Healy's vehicle, stated that he first saw Snr Constable Mountford as the only police officer down the embankment and that he then ran down the embankment: "When I got to where Mr Russell was standing, he attempted to punch Senior Constable Mountford so the two of us grabbed one arm each and put him on the ground. With the assistance of Senior Constable Hook, we then handcuffed him. The embankment was fairly steep and because Mr Russell was handcuffed it was difficult to get him up the embankment." 66 This statement is at variance with some other of the police statements who place Constable Bellamy with officers Mountford, Gow and Hook at the utility. Constable Bellamy does not state that he was at the utility. It is most likely that the four constables took part in the apprehension of Mr Russell. It is clear that there were at least 3 police officers involved, namely Constables Mountford, Gow and Hook. In his statement to Detective Senior Sgt Grossmith of the Internal Affairs Unit, Edward Russell described his apprehension at the utility in these terms: "I couldn't open the door and I was trying to climb out of the window. Then the coppers, they ran down the hill and ran at me. They dragged me out and a copper grabbed hold of me and a copper swung a bat at me and hit me right wrist. It's still sore now. They put me on the ground, they held me down and two coppers trod on my leg and they handcuffed me arms behind me. They put the handcuffs on real tight and they then dragged me up the road and they left my shoes down near the car." 67 The police officers state that Edward Russell shaped up to them and that required them to use force to subdue him. Mr Curnuck in his evidence stated that when he went the next morning to inspect the ute, he found that the driver's side door was jammed and would not open but the window on the passenger's side had been shattered. This is consistent with Edward Russell's statement that the police dragged him from the ute. 68 Mr Curnuck in his statement described what he saw from the window of the house of his parents-in-law: "I could see a Holden Rodeo utility down the embankment, there were at least 5 other vehicles on the road, and I was able to identify them as Police vehicles from their flashing lights and markings. They were at both the front and rear of the utility down the embankment. I then saw a person being taken up the steep embankment from the passenger side of the utility, and from where I was standing, I formed the impression at first the person was on a stretcher, as they appeared to be lying down, as though they had been injured in an accident, although I could not work out in my mind why there was so many police cars present. It appeared to me there was at least four persons, I believed to be police, taking the person up the embankment, and as I walked out the door of the house I realised the person was not on a stretcher but appeared to be held by his wrists." 69 Mr Curnuck, his wife and his son Ben, were staying with Mrs Curnuck's parents at their house on Wisemans Creek Road, Oberon on the night of 10th and 11th of December 1993. The house is set back off the road about 40 metres. Mr Curnuck was woken at about 2.00am on 11th December 1993 by the sound of a siren. He observed from the window of the house headlights of vehicles lighting up the area along the road about 60 metres from where he was standing in the house. After observing the apprehension of Edward Russell down the embankment, he could hear a lot of yelling and raised voices coming from the area around the vehicles on the road and he stated that the yelling was loud but he could not understand what was said. He then walked outside the house, stood near the back gate at a distance of about 20-30 feet from the house. He then heard more loud yelling and he heard a person scream. He was able to recall vividly abusive language that was being used by persons standing near the police vehicles, although he was unable to distinguish which person was using the language. He said that one particular voice was extremely loud and he had the impression that that person was out of control and he heard him yell out in a deep voice: "Dickhead" and then said, "You black bastards are causing all the trouble around here." The same voice then shortly after called out, "Blow harder or I'll tear these balls out and [sic: "they"] will fall to the ground like a brick." 70 Most of the other conversation that he heard was bad language with the words, "black cunt" and "fucking" being used frequently. He then observed a person being carried by at least three police officers. They were placed one on either side of the person with one officer behind the person who had his knees bent up and was being held under the arms. Mr Curnuck stated: "They walked from the back of the utility towards the twin cab van and they came closer to where I was standing." 71 Mr Curnuck was then able to describe the clothes that the person was wearing. He then stated: "One of the police officers carrying the person, he was the one on the person's right-hand side nearest to me, was punching the person down the side with his right hand. I focused on what the officer was doing, I could not see what the other police were doing because of the angle I was at. These people were clearly visible to me as they walked down the road and would have been no more than 50 metres away when I saw the person being carried to the rear of the police van. I then saw the person having his head rammed into the closed back door of the van, and then allowed to drop to the ground, the person had been crying out up until then, and then went quiet. One of the police officers called out loudly: 'He's trying to escape.' I then saw the rear door of the van opened and the person was picked up and thrown into the back of the van and the door closed. Shortly after that the van drove off, it stopped for a short time near the back of the utility, I could hear a person still crying out, and it then drove off towards Bathurst. A number of the police officers and the vehicles remained there for awhile, the police were laughing and talking, I recognised the Oberon vehicle and saw it drive off before the others. A short time later those vehicles drove off and the two cars which were the last to leave, put on a bit of a demonstration spinning their wheels as they took off." 72 In his evidence Mr Curnuck describes what he saw when he got to the gate, as follows: "They had him around a circle. I could not see anything, he was completely surrounded by police. All you could see was like a circle of police. This is at the back of the ute in front of the police vehicle in the lights. That is where I heard them calling him a 'dickhead' and 'you black bastards are causing all the trouble around here'. Up to that point I did not know, that is when I started to think, hello it wasn't an accident. I heard the fellow yelling at him that if he didn't blow harder in the bag he would tear his balls out and they would drop to the ground like a brick. I started to think, they're getting a bit rough. And then when they started taking him down and all the way he was going with him he's belting him in the stomach, he's got his hands handcuffed." 73 Mr Curnuck also described in his evidence that the next morning he found a shoe from a right foot and that he placed the shoe on a gate post and said that his father in law, quite some time later found the left foot shoe out in the paddock. Mr Curnuck kept the shoes and they were produced in evidence as an exhibit to the Tribunal. 74 Mr Curnuck also had taken some photographs of the utility and the site of the incidents and those photographs were exhibited to the Tribunal. 75 Mrs Curnuck in her statement described that she was also woken on the morning of 11th December 1993. She did not accompany Mr Curnuck to the gate of the property. She remained in the house and looked out the kitchen window. The view from that window was partially blocked by an untrimmed front hedge. She stated that she did catch a glimpse of two or three people carrying a man who appeared to be limp. He had his legs off the ground. She said that although the door of the kitchen was closed, she could still hear voices of male persons, although she could not distinguish what was said, but the voices were getting angry. She said that she then opened the kitchen door to hear what was going on and that she heard a male voice say: "He's escaping, he's escaping, grab him quick." 76 She then said she heard some loud banging noises which sounded like metallic noises. She then heard male voices laughing. She then heard the vehicles taking off speedily. 77 Mr Ben Curnuck is the son of Mr and Mrs Curnuck and he was sleeping in the kitchen/lounge area on a sofa bed in the house of his grandparents. He was woken at about 2.00am on 11th December 1993. He heard a wailing, crying sort of noise and lots of yelling and he stated that he thought someone must have been hurt very badly. He looked out the kitchen window and saw a number of police cars parked on the shoulder of the road. He stated that he could still hear the crying noise and it was coming from the lock-up vehicle. He said that he saw police men standing around in a sort of semi circle across from the smashed ute facing towards the lock up vehicle and he could hear them laughing. He saw the lock up vehicle drive off and he could still hear a slight crying noise coming from that vehicle. He and his sister inspected the ute the next morning and noticed that the windscreen had been smashed in one place and that the passenger side window had been completely smashed out. 78 In the statement made by Edward Russell at the Long Bay Jail on 1st July 1998, a statement taken by his Solicitor, he said that he jumped out of the window of the vehicle and somewhere between four and six police men dragged him ramming his head into the door of the vehicle and that while they were doing this he could clearly remember some of them shouting abuse at him yelling, "black cunt." He stated that the police called him lots of names, "but, 'black cunt' was what I recall most strongly." 79 He said: "I recall that the one or two police officers had pinned me down as I cried out 'help help'. Whilst I was lying face down on the road, they trod on both of my hands which were at my side. They then placed my hands behind my back in the middle of my back. They dragged me up and said, 'Get up you black cunt'. I recall saying, 'Yes I'm getting up. Don't force me to get up. I'm getting up.' Handcuffs were placed on me whilst I was getting up and I was dragged 50 metres up a hill. The handcuffs were placed with my hands behind my back. One policeman hit me in the ribs towards the right rib and wounded me. I recall saying, 'What did you do that for?' The right arm was used in the assault. Two policemen dragged me up to the car and forced me into the car. I then asked them for my shoes but they said, 'We're not getting your shoes'. They took me to the police station." 80 His statement included the following:- "I had continued nightmares about the events of that night for quite a long period of time. My nightmares were worse when I was in jail. The events terrified me because I thought that I could have been dead, because I was on my own. I had no help. The terror that I felt kept recurring, in the continuing nightmares that I had. The events also caused me a loss of self esteem, because I was treated so badly, as if I were barely human. The knowledge that people could treat another human being in this way was deeply shocking and offensive to me." 81 In normal circumstances it would be expected that a person who had been subjected to abuse and excessive use of force of the nature alleged, would have related the details of that experience in more specific terms than the description in these statements. The lack of detail is explicable by Edward Russell's illiteracy, his limited mental capacity and his deafness. Both statements were taken while Edward Russell was in jail. The first statement was made six months after the events and the second statement four and a half years after the events. Any inconsistencies and vagueness in the statements is not taken as an indication of lack of veracity in Edward Russell's allegations. It demonstrates an inability on his part to communicate his experience in a lucid manner. 82 The Tribunal has analysed the statements of the police officers and the evidence of Mr and Mrs Curnuck and Mr Ben Curnuck and the statements of Edward Russell. The tribunal is satisfied that the police officers have not been truthful in their denial, that one or more or all of them used racially abusive language and used excessive force in the apprehension and arrest of Edward Russell on 11th December 1993. The Tribunal prefers to accept the evidence of the members of the Curnuck family and the statements of Edward Russell where they describe the racially abusive language that they heard and that was used and when they describe the excessive use of force that was applied that night to Edward Russell. DISCRIMINATORY CONDUCT OF POLICE OFFICERS 83 It has been submitted by Counsel for the police officers that the Tribunal is unable to make a finding of discriminatory conduct against the police officers as the evidence is insufficient to identify individually any one of the police officers as the perpetrator of less favourable treatment of Edward Russell, and Section 7(1)(a) of the Act cannot be applied. The submission proceeds on the basis that the section is expressed in terms that is relevant only to the commission of a discriminatory act by an individual and unless the discriminatory act is perpetuated by 'a person' who is identified, the section does not apply. 84 As the Act is beneficial and remedial legislation, the Tribunal is entitled to give it a broad interpretation. The Tribunal is also entitled to apply Section 8(b) of the Interpretation Act: "A reference to a word or expression in the singular form includes a reference to a word or expression in the plural form." 85 The Tribunal can see no justification in the context of Section 7(1)(a) why such an interpretation should not be applied. Where, as is the case in this enquiry, a group of persons who discriminate against another person, act in concert, there is no reason in principle why Section 7(1)(a) should not apply so that each of those persons perpetrates the discrimination within the meaning of that section. The application of the section in this way should not be affected if the evidence does not enable identification of a particular person to particular acts carried out during the concerted exercise. Each of the persons in the group would be perpetrators of the less favourable treatment and would each discriminate against the other person (the aggrieved person). 86 In this complaint, the Tribunal is of the view that each of the police officers, other than Sgt Carter, acted together in concert in supporting each other, and in failing individually to prevent the actions of others, in the acts of discrimination that occurred on that occasion. 87 The Tribunal is satisfied that the evidence establishes that the concerted action of the police officers constitutes discrimination against Edward Russell in the following circumstances. Officer Mountford was the first officer to reach the utility down the embankment of Wisemans Creek Road. Officer Mountford and Officer Bellamy had undertaken most of the active pursuit of Edward Russell's ute and their police vehicle had run into the side of the ute during the police chase. It is most likely that that incident was a result of action taken by Officer Mountford. Officer Mountford drove his vehicle ahead of the first policing pursuit vehicle which stopped at the site on Wisemans Creek Road. Mr Russell said he was trying to open the door of the ute but was unable to do so and he was trying to climb out of the window. He said that the police officers dragged him out of the ute. This would explain the broken window on the passenger side door. Officer Mountford used his baton to strike Edward Russell on the arm. It is said by some of the police officers that this was necessary in order to subdue Mr Russell who was attempting to resist police officers. The Tribunal is not satisfied that Mr Russell did attempt to resist the police officers. It was more likely that Officer Mountford, in a state of excitement following the police chase and his participation in it, thought to subdue Edward Russell by using his baton and hitting him. Messrs Gow, Bellamy and Hook closely followed Officer Mountford to the site of the ute. They forced Edward Russell to the ground, they handcuffed his hands behind his back. They then carried him, by holding his arms, up the steep embankment to the road. Edward Russell was then dragged by the elbows by three police officers, one on either side and one holding his feet to the back of the police utility. All of the police officers were standing around at that stage. One of the police officers forced Edward Russell to have a breathalyser test and threatened him if he didn't do so, in the strongest terms. Whilst he was being carried to the back of the police van, at least one of the police officers punched Edward Russell several times. Edward Russell says: "The bloke that hit me come from a group of police." 88 Before placing Edward Russell in the police utility, some of the police officers forcibly pushed his head into the back of the utility. Edward Russell was severely stunned and had a large lump on his head as a result of this action. He was then thrown into the utility which drove him to the Bathurst Police Station. During this process and probably starting at the time of Edward Russell's removal from the ute, he was subjected to abusive and foul language. This continued right through the episode. At the ute, during the time that Edward Russell was pulled out and handcuffed, he was told: "You black bastards are causing all the trouble around here." 89 The abusive and foul language included the terms 'black cunt', 'fucking dog', 'fucking idiot', 'fucking dickhead'. At some stage during the process whilst Edward Russell was lying on the ground police officers deliberately trod on his hands. The witnesses describe the yelling and shouting of the police officers during the process. It should be recorded that the breathalyser test carried out on Edward Russell was negative. Evidence shows that when he stole the ute from outside the Bathurst Leagues Club there was a case of beer on the front seat. He used some of the bottles from the carton of beer to throw at the police during the pursuit. There is no evidence to suggest that he consumed any of this alcohol. 90 Mr Curnuck stated that he estimated the time taken from the apprehension of Edward Russell at the ute to the time he was driven away from the scene was approximately 15 minutes. 91 The Tribunal is satisfied that the police officers at the scene subjected Edward Russell to unfavourable treatment which in the same or similar circumstances the police officers would not have treated a person of a different race. The excessive force used against Edward Russell and the abusive language shouted at him were in, in the opinion of the Tribunal, causally connected with Edward Russell's aboriginality. This connection is demonstrated by the use of the phrases 'you black bastards are causing all the trouble around here' and 'black cunt'. These phrases in the context of the unfavourable treatment to which Edward Russell was subjected demonstrates that the actions of the police officers toward Edward Russell are explicable not only by a reaction to the arduous chase to apprehend him but also by Edward Russell's Aboriginal race. 92 Applying Section 4A of the Act, the racial connotation of the actions of the police officers, is to be taken, as the reasons for the conduct of the police officers. EVENTS AT BATHURST POLICE STATION 93 Sgt Carter was not present at the site at Oberon. He first came in contact with Edward Russell when Edward Russell was brought to the Bathurst Police Station. At 6.00am on 11th December 1993, Sgt Carter and Constable Steven interviewed Edward Russell. The Tribunal has heard an audio tape of that interview and has read a transcription of the interview. It is alleged that in the interview Edward Russell complained of an assault by the police. The interview lasted for about 15 minutes. Edward Russell's answer to the questions put to him were in most cases, unresponsive. At one stage he was asked what his concentration span was and he replied, "Coppers just hit me in the head mate." 94 He repeats that statement two questions later and he goes on to say that he just can't remember. Later in the interview he was asked to write a statement and he responded: "Can't write down, gotta sore arm. I can't even write anyway." 95 It is claimed that Detective Sgt Carter took no action in relation to the statement by Edward Russell that he had been hit on the head and that he had been hit on the arm. It is claimed that Sgt Carter had a duty to regard those statements as complaints against the police officers and that Sgt Carter should have taken immediate action to have those complaints investigated and should have immediately referred Edward Russell for medical advice. Sgt Carter at that stage took no action in relation to those statements of Edward Russell. 96 It was submitted that the failure of Sgt Carter to respond properly to Edward Russell's statements in the interview were part of the mind set of the police officers at the Bathurst Police Station, including Sgt Carter, which reflected the events at the scene of the discrimination against Edward Russell at Oberon. It is claimed that mind set caused Sgt Carter not to have regard to the complaints made by Edward Russell and that that failure was also on the ground of Edward Russell's race in the same way the discriminatory actions against Edward Russell at Oberon were on the ground of his race. 97 The Tribunal is not satisfied that the failure by Sgt Carter to treat the comments made by Edward Russell in the interview, as formal complaints of police action towards him, constitutes less favourable treatment of Edward Russell in the circumstances. The audio record and the transcript of that interview shows that Edward Russell was not able to adequately respond to the questions that he was being asked. It is understandable in those circumstances that Sgt Carter would have given little regard to the comments that Edward Russell made of being hit on the head and having a sore arm. The Tribunal is also not satisfied that any failure by Sgt Carter to respond to those comments was because Edward Russell was an Aboriginal. There was no direct evidence to show that Sgt Carter's failure to respond to Edward Russell's comments was connected to the discriminatory conduct to which Edward Russell had been subjected at Oberon. 98 The Tribunal is asked to infer that at the time of the interview, Sgt. Carter would have been imbued with antagonism towards Edward Russell as a result of the chase of Mr. Russell by his fellow police officers and as a result of his contact at the Police Station with the police officers who had returned with Mr. Russell after his arrest at Oberon. It was submitted to the Tribunal that Sgt. Carter would have had a mindset against Mr. Russell and part of the mindset related to the race of Mr. Russell. Counsel for the applicants did not point to any specific aspect of the evidence of the contact between Sgt. Carter and Mr. Russell at the Police Station or during the interview, to demonstrate the mindset which the Tribunal was asked to infer. 99 The Tribunal can find no evidence of a mindset adverse to Mr. Russell in the content or in the manner of the conduct of the interview of Mr. Russell by Sgt. Carter. Mr. Russell in the interview did not emphasise his injuries. He referred to the injuries in answer to questions by Sgt. Carter about his lack of response to questions but not in a manner that would suggest that he was making a complaint about the cause of the injuries or that the injuries were causing him particular discomfort. The Tribunal is unable to draw an inference that Sgt. Carter treated Mr. Russell less favourably than in the same or similar circumstances he would have treated a person who was not an aboriginal. 100 The Tribunal accordingly directs that the complaint against Sgt Carter be dismissed. ONUS OF PROOF 101 In considering the findings of discriminatory conduct against the police officers, the Tribunal has applied the civil onus of proof, namely that the Tribunal should be satisfied on the balance of probability and having regard to the serious nature of the allegations and of findings of discrimination, that the abusive language and excessive force used against Edward Russell occurred. The Tribunal has applied the same test in relation to the complaint against Sgt Carter. It has also applied that test in determining the question of whether Edward Russell was subjected to unlawful racial vilification. RACIAL VILIFICATION 102 It is claimed that the circumstances and the actions and language of the police officers in the apprehension and arrest of Edward Russell on 11th December 1993, constituted unlawful racial vilification. Racial vilification is rendered unlawful under Section 20C(1) of the Act. In considering that section, it is necessary to have regard to Section 20B which defines "public act". So far as they are relevant to this enquiry, the terms of those sections are as follows: "Section 20C(1): It is 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." "Section 20B: In this Division, public act includes: (a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and play of tapes or other recorded material; and (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems or insignia, and (c).…" 103 Section 20C(2) sets out exceptions to Section 20C(1). The exceptions are not applicable to this complaint. 104 It is submitted by the Applicant that the occurrences complained about constitute a public act within the meaning of Section 20B of the Act, both in the words and in the conduct used by the police officers in the apprehension and arrest of Edward Russell. The Tribunal has found that abusive and racial language was used by the police officers who were shouting out in loud voices, and that the police officers used excessive force which was observable by the public. Mr Curnuck has described his observations of both the words and the conduct that he heard and saw on that occasion. Mrs Curnuck saw only a small part of the conduct but she heard the loud shouting and so did Mr Ben Curnuck. In the view of the Tribunal the words used were communicated to the public and the conduct was observable by the public. The scene, especially on the road, was lit up because the police vehicles kept their headlights on and this enabled Mr Curnuck to observe the conduct of the police at the road side. 105 Decisions of the Tribunal demonstrate that the term "to incite" should be interpreted in accordance with the ordinary meaning of that word to be found in the Macquarie Dictionary: "to urge on; stimulate or prompt to action." 106 The term "incite" has been interpreted by the Tribunal in Harou-Sourdon v TCN Channel Nine Pty Ltd [1994]EOC 92-604 and Wagga Wagga Aboriginal Action Group v Eldridge [1995] 92-701 at 78-266, both of which were approved in Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at para 23 and more recently in Western Aboriginal Legal Service Limited v Jones & anor [2000] NSWADT 102 at para 84. 107 It is not necessary for the complainant to prove that the person or person who performed the public act intended to incite anyone; nor is it necessary to prove that anyone was in fact incited by the public act. It is the capacity of the public act or its likely effect upon the ordinary, reasonable person which is significant, rather than the intent of the person who performed the act: Western Aboriginal Legal Service Limited v Jones & anor [2000] NSWADT 102 at paras 93 and 99." 108 It is clear that the words and conduct of the police officers incited each other to continue and maintain their excessive use of language and conduct towards Edward Russell. The phrases used as described in the evidence, were extreme in their abuse of Edward Russell. 109 The words and conduct of the police officers need to be considered in determining whether the public act incited hatred towards, serious contempt for or severe ridicule of Edward Russell on the ground of his race. 110 In the view of the Tribunal the racial and abusive language, together with the conduct of the police officers in the excessive force that was used against Edward Russell were capable of inciting hatred and serious contempt within the meaning of those terms. That meaning has been confirmed as the ordinary dictionary definitions which were quoted in Kazak: "'hatred' means "intense dislike; detestation" (Macquarie), "a feeling of hostility or strong aversion towards a person or thing; active and violent dislike" (Oxford); 'serious' means "important, grave" (Oxford); "weighty, important" (Macquarie); 'contempt' means "the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account" (Oxford); "the feeling with which one regards anything considered mean, vile or worthless" (Macquarie); 'severe' means "rigorous, strict or harsh" (Oxford); "harsh, extreme" (Macquarie); 'ridicule' means "subject to ridicule or mockery; make fun of, deride, laugh at" (Oxford); "words or actions intended to excite contemptuous laughter at a person or thing; derision" (Macquarie)." 111 The evidence shows that when the police rammed Mr Russell's head against the back of the police utility, they shouted, 'He's trying to escape' and that they laughed. The evidence also shows that the police were laughing at other stages during the incident. It has been submitted that in those circumstances the conduct of the police constituted inciting to severe ridicule of Edward Russell. The statement that he was trying to escape and the laughing were heard both by Mr and Mrs Curnuck. The Tribunal agrees with this submission and it considers that those circumstances constitute inciting to severe ridicule of Edward Russell. 112 The degree to which Mr Curnuck was affected by what he saw and heard of the incident caused him that day to write to the Editor of the Oberon Review newspaper. The terms of his letter to the Editor demonstrate to the Tribunal the depth to which Mr Curnuck was disturbed by that experience. The depth of his affectation was observed by the Tribunal when he gave evidence. At one stage in his evidence, Mr Curnuck became so emotional that he had to delay proceeding until he had recovered sufficiently to be able to continue with his evidence. His experience still disturbed him greatly after such a long period of time. Mr Curnuck did not appear to the Tribunal to be a person who would become easily emotional and it would require some particularly disturbing experience to produce the degree of emotion that Mr Curnuck displayed in giving his evidence. These reactions of Mr Curnuck demonstrate the serious and severe nature of the effect of that experience on him. 113 For the reasons that the Tribunal has previously expressed in relation to its finding that the discriminatory actions of the police officers was on the ground of the race of Edward Russell, the Tribunal in relation to the complaint of racial vilification also finds that the inciting of hatred and serious contempt for and severe ridicule of Edward Russell, was on the ground of his Aboriginality. Accordingly the Tribunal finds that the police officers unlawfully racially vilified Edward Russell on 11th December 1993. THE APPLICATION OF SECTION 53 TO THE NEW SOUTH WALES POLICE SERVICE 114 In view of the findings by the Tribunal that the police officers discriminated against Edward Russell under Section 7(1)(a) of the Act and subjected Edward Russell to unlawful racial discrimination under Section 20C(1) of the Act, it is appropriate to consider the claim that the Police Service, as the employer of the police officers, is deemed to have done the acts which constitute the racial discrimination and the unlawful racial vilification. 115 No objection was taken by the Respondents, including the Police Service, that the Police Service was the organisation responsible for the appointment of the police officers and the party responsible to carry out any directions made by the Tribunal in relation to the complaints. 116 It was submitted by Counsel for the First Respondent that the reference to "principal" and "agent" and to "employer" and "employee" in Section 53, should be restricted to the common law meaning of those terms and that police officers appointed under the Police Service Act 1990 ("the Police Act") were not at common law agents or employees of the Police Service. Counsel for the Applicant submitted that the intention of Section 53 is to include in the Act the concept of vicarious liability of a person for the acts of another, and the application of that concept is not adequately met if the meaning of 'employer' and 'employee' in relation to the position of the Police Service and a police constable, is confined to the common law meaning. The submission continues that the term "employer" should be construed as covering the more broader situation where the relationship between the person doing an act (the police officer) in contravention of the Act, and the public authority (the police service), is so akin to an employer and employee that it would defeat the purpose of the legislation to prevent the Applicant having access to an effective remedy for the discriminatory conduct of the police constable. 117 The position of a member of the Police Force appointed under the Police Regulation Act 1899-1947(NSW) was considered by the Privy Council in the Attorney General for New South Wales v Perpetual Trustee Company Limited [1994] 92CLR113. In that case, the issue was determined in the context of an action per quod servitium amisit at the suit of the Crown in respect of the loss of the services of a member of New South Wales Police Force. On appeal from the High Court of Australia, the Privy Council, in dismissing the appeal of the Attorney General, Viscount Simones stated: "Their Lordships can now express their final opinion upon the case. They repeat that in their view there is a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the State which he is said to serve. The constable falls within the latter category. His authority is original not delegated and is exercised at his own discretion by virtue of his office; he is a ministerial officer exercising statutory rights independently of contract. The essential difference is recognised in the fact that his relationship to the Government is not in ordinary parlance described as that of servant and master. …………"Their review of the relevant case law shows that, where in recent times it has been extended to cases of persons in the public service who (to repeat the now familiar words) are not servants of the Crown in such a sense that the ordinary law of master and servant determines the relationship of the parties; the extension has been made without argument or deliberation. The form of action appears, as Lord Summer said, to be a survival from the time when service was a status. That status lay in the realm of domestic relations. It would not in their Lordships' view be in accord with modern notions or with the realities of human relationships today to extend the action to the loss of service of one who, if he can be called a servant at all, is the holder of an office which has for centuries been regarded as a public office." 118 The First Respondent seeks to extend the rationale of that decision to Section 53 of the Act. Reliance is placed on the decision of the Full Industrial Court of South Australia In The Matter Of an Appeal by the Commissioner of Police against Certain Decisions and Orders of the Sex Discrimination Board [1994] EOC 92-017. Olsen P in dealing with Section 18 of the South Australian Discrimination Act, which is equivalent to Section 25 dealing with sex discrimination in the New South Wales Act, said: At page 75457 "It is, on the face of the legislation, abundantly apparent that Section 18 of the Discrimination Act concerns itself with persons proposing to enter into, or who have [in the common law sense] entered into, the relationship of employer and employee pursuant to a contract of service. The whole tenor of the legislation is such that no other conclusion, is, in my view, reasonably available." At page 75458: "It seems inescapable that, when Section 18 speaks of 'employer', 'employee' and 'employment' it does so in the sense of acts bearing upon the status or potential status of parties arising from a common law contract of service. I am reinforced in this view by dicta contained in the recent judgment of New South Wales Court of Appeal in Director General of Education & Anor v Breen & Ors [1984]EOC92-015. Speaking of legislation indistinguishable for present purposes from Section 18, Hutley J A, said quite unequivocally: 'In my opinion, 'employer' means what is says, that is, except in the case where it is extended to cover a person who commissions services of a person under a contract for services. Except in so far as this extension comes into play, who is an employer must be found in other acts or in the general law. Only the legal employer can be guilty of discrimination under Section 25.'" 119 That statement of Hutley J A in the Breen case, was expressed obiter and was not embraced by the other Justices of Appeal. Street CJ did not deal with the issue. Hope JA made these observations at page 75432: "If these submissions be correct, then it would seem that for most if not all purposes of the Anti-Discrimination Act, the Teaching Services established under the Education Commission Act, are in effect exempted bodies. However much members of those Services may be discriminated against, there is no remedy under the Anti-Discrimination Act. This would be such an unintended result that I would need to consider the matter very carefully before I would accept it as correct. ……. Submissions have been made for the complainants that in the light of the matters I have described, a special meaning should be given to the word "employer" where used in the Anti-Discrimination Act, that the acts of the Director-General should be treated as acts of the Crown or of the Education Commission under sec. 53 of the Act, and that sec. 52, the sidenote of which states "aiding unlawful acts", may also be applicable. There is difficulty in all of these submissions, and it may well be that the Anti-Discrimination Act provides no relief where the Director-General of Education has acted in relation to a member of the Teaching Service in a way which, if he were the employer, would be discriminatory under the Act, and that a similar position may arise where any other Department Head exercises in a discriminatory way a power given to him as persona designata. Since I have decided that the acts alleged against the Director-General would not amount to discrimination under the Act even if he were the employer of the complainants, it is not necessary to resolve the question." 120 Sections 18 of the Discrimination Act (SA) and Section 25 of the Act render it unlawful for an employer to discriminate against a person or employee on the ground of sex in the circumstances set out in the sections. The circumstances in which the employer's conduct is rendered unlawful has a strong connotation to the common law concepts of master and servant. It is not necessary to decide in this enquiry whether the term "employer" in section 25 of the Act is confined to the common law concept. If the Tribunal were required to address that issue, it would be constrained to follow the decision of the Full Industrial Court of South Australia and to find that the Police Service is not an employer for the purposes of Section 25 of the Act. In this enquiry the question of unlawful discriminatory conduct will need to be considered under Section 19 of the Act. The operation of that section is not dependent on the relationship of employer and employee. The decision of the Full Industrial Court of South Australia and the opinion of Hutley JA in the Breen case, can be confined to the application of Section 25 and in the view of the Tribunal, are not conclusive in a consideration of the interpretation of the terms "employer" and "principal" in Section 53 of the Act. 121 Following the decision in the Breen case, the Act was amended in 1997 by inserting Section 4B. That provision seeks to overcome the several lacona discussed in the Breen decision, that public servants, including members of the Police Service, were without a remedy under the Act where Department Head or the Commissioner of Police in the case of the Police Service, acted towards members of the public service, or the police service, in a way which if the Department Head were an employer, would have been discriminatory under the Act. Section 4B enables public servants, and member of the Police Service, who are discriminated against in their employment, to seek redress under the Act from the Department Head or the Commissioner of Police. It was submitted by the Applicant that Section 4B has a broader application and the terms of sub-sections (1) and (2) of Section 4B should be construed in aid of the submissions of the Applicant, so that, in relation to Section 53 of the Act, the sub-sections apply to render the Commissioner of Police liable for actions of police constables. 122 The Tribunal does not accept that Section 4B should be so construed. It is clear that it is intended to assist members of the public service and the police service aggrieved in their employment to seek remedies under the Act. The Section does not extend to facilitate remedies by third parties against those functionaries. The limited scope of Section 4B is illustrated by a comparison with the provisions of Section 3A of the Occupational Health and Safety Act (NSW) 1983 inserted by the Occupational Health and Safety Amendment (Police Officer's) Act 2000. That section provides: "(3A) To avoid doubt, a police officer, is for the purposes of this act: (a) an employee of the Crown, and (b) at work throughout the time when the officer is on duty at any place, but not otherwise." 123 The Honourable J W Shaw (Attorney-General) in the second reading speech in Parliament to this Bill, said: "It contains provisions to clarify that the protections of the Occupational Health & Safety Act apply to police officers, just as they apply to all other employees… The doubt occurs because police officers hold statutory office with a measure of independent discretion in the performance of their operational duties. This contrasts with the normal employee situation under a contract of service. The problem is not unusual in jurisdictions that derive their history from English common law." 124 The terms of Section 3A(1) clearly establish that for the purposes of the Occupational Health & Safety Act, a police officer is an employee of the Crown. The more limited operation of Section 4B of the Act is apparent. 125 Accordingly, it becomes necessary to consider whether the contrast between the amending provisions of the Occupational Health & Safety Act 1983 (Section 3(A)), and of the Act (Section 4B), demonstrated the intention of Parliament not to extend the status of a police officer as an employee for the purposes of the Act. Parliament could have amended the Act to overcome the effect of the decision in Breen with a broader provision in similar terms to Section 3(A) of the Occupational Health & Safety Act and put beyond doubt the issue, which the Tribunal has to decide in this enquiry. The Tribunal considers that it is not appropriate to draw such an intention from the contrast between the two provisions. In the second reading speech to the 1996 Bill containing Section 4B, the Honourable J W Shaw made no mention of Section 4B. The main purpose of the Bill was to introduce sexual harassment as a separate ground of unlawful conduct under the Act. The Bill contained a number of amendments to the Act, some of which were referred to in the second reading speech. The Act of 2000 amending the Occupational Health & Safety Act on the other hand, was directed solely to the inclusion of police officers and the operation of that Act. In the view of the Tribunal, the contrast between the two provisions, cannot be used to draw an intention from the more limited effect of Section 4B of the Act that for all purposes of the Act, other than claims of discrimination by police officers against the Police Service, that police officers are not employees of the Police Service. Whether police officers are employees of the Police Service for the purposes of the various provisions of the Act dealing with unlawful conduct and the liability of the Police Service for unlawful conduct of police officers, needs to be considered in relation to the specific provisions under which the Police Service is sought to be made liable. INTERPRETATION OF SECTION 53 - "EMPLOYER" 126 The common law position that a police officer acting in the performance of duties, does so independently of the Police Service or the Crown, so that the Police Service and the Crown are not liable at law for those acts, has been applied in a line of authority in Australia and the United Kingdom. The decisions demonstrate the independence of the actions of a police constable in performing his duties, and distinguishes the position of the constable from the position of an employee under the common law concept of master and servant. 127 The decision in the Perpetual Trustee case has been applied and followed in Australia. 128 For example, see Sellars v Woods [1982] 45 ALR 113 [application of Administrative Decisions (Judicial Review) Act 1977 to members of the Australian Federal Police; Chapman v Commissioner Australian Federal Police [1983] 50 ACTR 23 [application of principles of estoppel to relationship between police officer and Crown]; and Griffiths v Haines [1984] NSWLR 653 [whether governments are liable in negligence for actions of police officers]. In Griffiths v Haines Lee J reviewed the Australian and English authorities before concluding at p.665: 'I am therefore, bound to hold, applying Enever v The King, that the plaintiff cannot succeed in an action against the government if the negligent acts or omissions alleged in the statement of claim were done by police in the intended performance of their duties as constables. The action would not lie against the government because, to use the words of Griffiths CJ in Sydney Harbour Trust Commissioners v Ryan [at 366] no action would lie against a subject in consimili casu – the constable acting in performance of the duties of constable acts independently of the Crown, the party sought to be made liable. Enever v The King has, so far as I can see, never been questioned, although it has been referred to in circumstances where its continued application no doubt received a critical analysis….' 129 In Enever v the King [1906] 3 CLR 969 it was sought to make the government liable in damages for a wrongful arrest of the plaintiff by a constable acting in the intended performance of his duties as such. The High Court held unanimously that the action did not lie against the Crown although recognising that the constable himself was liable to the plaintiff for his wrongful act. Per Griffith CJ at 979: 'I am therefore, of opinion that the case does not fall within the governing words of s.4 of the Crown Redress Act, 1891: any person having … any just claim or demand … in respect of any act …. or default of any officer, agent or servant of the Government of Tasmania which would be the ground of an action at law …. between subject and subject," since the acts of commission or omission of a constable never were the ground of an action at law as between subject and subject against any person but the constable himself, or some other person who had personally directed the act complained of. For these reasons I am of the opinion that the appellant's case fails.' " 130 In Enever v The King Griffith CJ considered the application of the general law of agency to the liability of authorities by whom a constable is appointed. "A consideration of the general doctrine of the law of agency as applied to the case of a constable leads to the same conclusion. In considering whether a master is liable for the acts of his servant the test is, as stated by Crompton J in Sadler v Henlock [4E and B, 570], quoted with approval by Bowen LJ, in Donovan v Laing, Wharton and Downe Constructions Syndicate [(1983) 1QB 629 at 634], whether the party sought to be made responsible retained the power of controlling the act. Now, the powers of a constable, qua peace officer, whether conferred by common or statute law, are exercised by him by virtue of his office and cannot be exercised on the responsibility of any person but himself. If he arrests on suspicion of felony, the suspicion must be his suspicion and must be reasonable to him. If he arrests on occasion which the arrest may be made on view, the view must be his view, not that of someone else ….a constable, therefore, when acting as a peace officer, is not exercising the delegated authority, but an original authority, and the general law of agency has no application" [at 977]. 131 Enever was followed by the High Court in Baume v The Commonwealth [1906] 4CLR97. The Courts in England have reached the same conclusions as to the status of the police constable and the liability of authorities by whom the police constable is appointed. Fisher v Oldham Corporation [1930] 2KB 364; Farah v The Commissioner of Police of the Metropolis [1997]1ALLER239. In the case of Farah, the Court of Appeal considered the application of Section 32 of the Race Relations Act (UK) which was in terms similar but not identical to Section 53 of the Act. It was conceded that a police constable was not an employee after deciding that a police constable was not an agent of the Commissioner of Police, it followed in the view of the Court of Appeal, that Section 32 did not apply. 132 More recently, however, in Australia, the Full Court of the Federal Court found that police officers were employees for the purposes of Division 3 of Part VIA of the Industrial Relations Act (Cth.)1988. In Konrad v Victoria Police 165ALR 23, the Court considered Section 170DE(1) of Division 3 which prohibits termination of an employee's employment except in the stated circumstances. The Court found that the section applied to a police officer in the Victorian Police Force. It was held that as the purpose of Division 3 was to give effect to the Convention Concerning Termination of Employment at the Initiative of the Employer ("the Convention") it should not be construed more narrowly than the Convention and the word "employee" in the section was therefore not confined to its common law meaning, and included public employees, including those holding public office. A police constable was accordingly an employee entitled to the protection of the Act. 133 The Industrial Relations Act 1988 (CTH) expressly provided that the object of Division 3 of Part VIA was to give effect to the Convention, a copy of which is set out in the Schedule to the Act. It was held (Ryan J at 26) that Section 170DE(1) reflected the central prescription of the Convention (Article 4). Ryan J after referring to the decision in the Perpetual Trustee case, at page 28, stated: "[13] In my view the critical question for the resolution of the first issue raised by these appeals is not whether police officers are employees of the Crown or the State so as to attract them to the application of common law principles such as those required by the cause of action for loss of services or per quod servitium amisit. Rather, it is whether police officers are employees in the sense contemplated by Div 3 of Pt VIA of the Act. [14] I gratefully adopt the history and analysis of Div 3 which has been set out in the reasons for judgment of Finkelstein J in the present appeals and by Moore J in Ward v Commissioner of Police [1998] 80 FCR 427;151 ALR 604. That history and analysis demonstrates that Div 3 was intended to apply to all workers whether or not in a relationship of employer and employee recognised by the common law. The express reference in Report VIII(2) of the ILO Secretariat to proposals by certain governments for "provision for the possible exclusion of, or special provision for, one or more categories of workers such as the armed forces, the police…." followed by a recommendation which mirrored Art 2(5) of the of the Convention as adopted on 2 June 1982 makes it clear that the framers of the Convention intended it to apply to a very wide range of workers, including police, unless a country took measures to exclude from the application of Convention 'other limited categories of employed persons in respect of which special problems of a substantial nature arise in the light of the particular conditions of employment of the workers concerned or the size or nature of the undertaking that employs them.' One such limited category of employed persons obviously comprised members of a police force of a country. [15] Accordingly, Art 2(5) of the Convention, in the light of that history, must be taken as contemplating the exclusion of police officers by appropriate domestic prescription. That has not generally been done in Australia although the facility to do so by regulation was expressly preserved by s 170CC of the Act as amended by Act No. 97 of 1994. That facility was availed of when reg 30BB made by SR No. 386 of 1994 as amended by Sr No 434 of 1995 excluded, until 1 January 1997, "an employee who is appointed, employed or otherwise engaged under the Australian Federal Police Act 1979". It follows that Div 3 of Pt VIA of the Act, on its proper construction, applied to persons who are employed as police officers in the police force of one or other of the States." 134 Finkelstein J traced in detail the history of the Convention and its incorporation into the legislation and also the case law relating to the common law status of a police constable. He comments that the common law has yet to evolve a satisfactory test for determining whether one person is employed by or is the servant of another and he concludes, after examining various tests attempted by the Courts (at p.51): "[100] Returning to the question whether the employee who is referred to in Div 3 is a common law employee it is necessary, in my view, to have regard to the following matters. First, provisions such as are to be found in Div 3 should not be given a narrow construction. Division 3 is in the nature of a human rights code and should be given an interpretation that will advance its broad purposes. It is not appropriate to minimise the rights conferred by this type of legislation and so diminish its proper impact; compare Canadian National Railway Co v Canada [1987] 1 SCR 1114 at 1134 per Dickson CJ; Ontario Human Rights Commission v Simpson Sears [1985] 2 SCR 536 at 547 per McIntyre J. [101] Secondly, there has been much informed criticism of the common law notion of employee. I have already mentioned the article by Professor Kahn-Freund. Reference might also be made to P S Atiyah, Vicarious Liability (1967), especially Ch 5. Further in 1985 Professor H W Arthurs wrote an influential article entitled "The Dependent Contractor: At Study of the Legal Problems of Countervailing Power" (1965) 16(1) University of Toronto Law Journal 89,criticising the manner in which the common law distinguished an employee from an independent contractor. He argued that workers were being denied rights afforded by various labour relations and like legislation because they had been transformed from employees into independent contractors "by the magic of contractual language", but that their working environment remained unchanged. He proposed that those he classified as "dependent contractors" should be regarded as employees and entitled to the benefits of legislation designed to protect workmen. The terminology of the "dependent contractor" has now found its way into the labour legislation of a number of Canadian jurisdictions: see for example x 107 of the Canada Labour Code, 1972 (Can). [102] Thirdly, remembering that the purpose of Div 3 is to give effect to the Convention, in the absence of a clear indication to the contrary, the Division should not be construed more narrowly than the Convention. In that regard there can be no doubt that the expressions "employed person" and "worker" in the Convention do not bear their common law meaning. The overwhelming majority of States which adopted the Convention are not common law countries. There can also be no doubt that the Convention intended to include public employees with its scope. Further, it follows from the fact that all public employees are covered by the Convention, that the Convention is not concerned to distinguish between holders of public office on the one hand and public employees on the other. [103] In my view, bearing the foregoing factors in mind, I can see no reason why the word "employee" when use in Div 3 should be confined to its common law meaning. If it was confined, it would bring about the following unintended consequences. In the first place, it would exclude from the operation of the Division person who are just as vulnerable and in need of protection as common law employees. In the second place, adopting a narrow meaning of the word "employee" would place Australia in breach of its obligations under the Convention which it has ratified. In the third place, a narrow construction of the word "employee" would defeat the object of the Division which is to give effect to the Convention. [104] In the context of Div 3 it is my view that, speaking generally, an employee is a person who performs work or labour (personal services) for another; that is to say, a person who sells his labour and not the product of his labour. Further, once it is accepted that the common law meaning of the word "employee" does not control Div 3, in my opinion it necessarily follows that a constable is an employee who is entitled to the protection of the Division. In almost all respects a member of the police force is in the same position as any other employee of the Crown. He is subject to the direction and control of the Crown, although he acts "independently" in the manner in which he carries out certain duties. He is paid a regular wage and makes no profit. He is provided with equipment needed to carry out his duties. His position, nowadays at least, is permanent. He is entitled to holidays, sick leave and other entitlements afforded generally to employees." 135 His Honour referred to decisions in the United States and Canada which "have displayed a similar disinclination to apply the common law meaning of the word "employer" when found in a statute governing labour relations." 136 The approach of the full Court in Konrad, demonstrates the need for a Tribunal considering legislation of a remedial and beneficial nature, to consider interpretations of the legislation beyond the narrow confines of the common law and to examine whether under the rules of construction the legislation should be construed so that the meaning given to particular words such as "employer" and "principal" is broad and avoids ambiguity and obscurity and avoids a result that is manifestly unreasonable. 137 These principles of construction have been stated by the Courts on a number of occasions. For example, in IW v City of Perth [1996-1997]191 CLR 1, Brennan CJ and McHugh J stated (at p.12): "The injunction contained in s 18 of the Interpretation act, is reinforced by the rule of construction that beneficial and remedial legislation, like the Act, is to be given a liberal construction (39). It is to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical"(40). Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural. But subject to that proviso, if the term "service", read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal, exercising jurisdiction under the Act, should hold that that activity is a "service" for the purpose of the Act." 138 In a more recent decision of the High Court in CIC Insurance Limited v Bankstown Football Club Limited [1997] 187 CLR 384, Brennan CJ, Dawson Toohey and Gummow JJ stated: "Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and the objects of the legislation, they may wear a different appearance. Further, inconvenience and improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent." 139 Section 33 of the Interpretation act requires that an Act be constructed to promote the purpose or object of the Act, whether or not the purpose or object is expressly stated in the Act. 140 Section 34 provides for the use of extrinsic… material in the interpretation of Acts, if the material is capable of assisting in ascertaining the meaning of the provision: "(b) to determine the meaning of the provision: (i) if the provision is ambiguous or obscure; or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the act or statutory rule and the purpose or object underlying the act or statutory rule, and, in the case of a statutory rule, the purpose or object underlying the act under which the rule was made) leads to a result manifestly absurd or unreasonable." 141 Section 5 of the Interpretation Act provides that the Interpretation Act applies to an Act except in so far as the contrary intention appears in the Act. 142 The application of Section 34 has also been the subject of comment by McHugh J (Toohey J agreeing) in Saraswati v The Queen [1991] 36 ALJR 402: "In many cases, the grammatical or literal meaning of a statutory provision will give effect to the purpose of the legislation. Consequently, it will constitute the 'ordinary meaning' to be applied. If, however, the literal or grammatical meaning of a provision does not give effect to that purpose, that meaning cannot be regarded as 'the ordinary meaning' and cannot prevail. It must give way to the construction which will promote the underlying purpose or object of an Act: Interpretation Act, s33. In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981 147 CLR 297 at 321, Mason and Wilson JJ said: When the judge labels the operation of the statute as 'absurd', 'extraordinary', 'capricious', 'irrational' or 'obscure' he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions. Moreover, once a court concludes that the literal or grammatical meaning of a provision does not conform to the legislative purpose as ascertained from the statute as a whole including the policy which may be discerned from its provisions, it is entitled to give effect to that purpose by addition to, omission from, or clarification of, the particular provision: see Kammins Co v Zenith Investments [1971] AC 850 at 880-882; Jones v Wrotham Park Estates [ 1980] AC 74 at 105; Cooper Brookes at 321-323; In re Lockwood, Decd [ 1958] Ch 231 at 238. But where the text of a legislative provision is grammatically capable of only one meaning and neither the context nor any purpose of the Act throws any real doubt on that meaning, the grammatical meaning is 'the ordinary meaning' to be applied. A court cannot depart from 'the ordinary meaning' of a legislative provision simply because that meaning produces anomalies: cf Cooper Brookes at 305, 320. But s 34 of the Interpretation Act assumes that it may do so if the ordinary meaning conveyed by the text of the provision 'taking into account its context in the Act …and the purpose or object underlying the Act' leads to a result that is 'manifestly absurd' or 'unreasonable'. Furthermore, if 'the ordinary meaning' of a legislative provision is manifestly absurd or unreasonable, a real doubt must arise as to whether Parliament intended the enactment to have its ordinary meaning: cf Cooper Brookes, at 320." 143 In dealing with the corresponding provision (Section 15AA(1) of the Interpretation Act (CTH)), Burchard J in Trevesan v The Federal Commissioner of Taxation [1991] 101 AOR 26 at 31 stated: "Section 15AA requires a court to prefer one construction to another. Such a requirement can only have meaning where two constructions are otherwise open. The section is not a warrant for redrafting legislation nearer to an assumed desire of the legislature. It is not for the courts to legislate; a meaning, though illuminated by the statutory injunction to promote the purpose or object underlying the Act, must be found in the words of Parliament. As Bowen CJ said in Re News Corporation Ltd [1987] 70 ALR 419 at 428: A[n] … important rule in this context is that embodied in s 15AA of the Acts Interpretation Act 1901 requiring the Court to lean towards the construction that will promote the purpose of the Act. In the end the task of the court is to ascertain and to enforce the actual commands of the legislature: Scott v Cawsey [1907] 5 CLR 132 at 155. This will best be achieved by studying the words used and the context and purpose or object underlying the Act. To similar effect, Fitzgerald J said in FCT v Trustees of Lisa Marie Walsh Trust [1983] 48 ALR 253 at 278: '…even if the extrinsic material does not reveal the legislative purpose, there will continue to be boundaries beyond which the words used will not stretch even where it is known that they were intended to do so.' See also Repatriation Commission v Kohn [1989] 87 ALR 511 at 523-4, citing Cooper Brookes (Wollongong) Pty Ltd v FCT [1981] 147 CLR 297at 304; 35 ALR 151. I do not think I can support the tribunal's approach in this matter. It did not "stretch" the language, to use the metaphor of Fitzgerald J; it found the language inelastic, and threw it away upon the footing that a decision contrary to it would be in keeping with what the tribunal thought to be the legislative purpose." 144 The Act does not expressly adopt an international convention. The objects of the Act are described as: "An act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote the equality of opportunity between all persons." 145 The Applicant submitted that the Tribunal was entitled to have regard to extrinsic material, within the ambit of sections 33 and 34 of the Interpretation Act, and in particular, to: The Second Reading Speech of the Hon D J Landa (Attorney General). He said: "In a consideration of the principles to be embodied in this legislation the government had the benefit of the experience of other places where legislation of this nature had been introduced. Though in respect to race and sex discrimination the provisions of other Acts and specific exceptions provided in this measure follow to some extent the precedents provided elsewhere, the bill provides far more effective remedies than does any other legislation introduced in this country." In a speech supporting the Second Reading Speech, by the Honourable J H Hallam. He said: "I take this opportunity to quote some of the articles of the Universal Declaration of Human Rights which I think are most relevant to his bill [Articles 1, 2 and 21 cited]. Of course, this declaration was ratified by the Australian Government and by many other governments. I believe those articles to be most significant … I believe they are most relevant to this legislation, which adheres to the fine principles of the Universal Declaration of Human Rights." The Racial Discrimination Act 1976 (Commonwealth) which was enacted to give effect to The International Convention on the Elimination of all Forms of Racial Discrimination ("CERD"). CERD was ratified by Australia with effect from 30th October 1975. The relevant parts of articles of CERD provide:- Article 2(1)(a): "(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation." Article 4 (c): State parties ………. ……………………… (c) shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination Article 5(b): "(b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution …" Article 6: "States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his job human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination." The Second Reading Speech of the Honourable J Dowd, Attorney General, to the Police Service Act 1990. He stated: "The Police Service Bill the most significant reform for nearly a century in the legislation governing police. Under the terms of the bills, the Police Service will be driven by modern, efficient and accountable management practices in the spirit of the Public Sector Management Act. Control of staff in the workplace will be at the discretion of the Commissioner. In other words, there is nothing to prevent the supervision of police officers by administrative officers and vice versa. The present dual structure of police force and police department has on occasions led to disputes over authority and responsibilities. A degree of integration has already been introduced on a voluntary basis. However, under these new arrangements the Commissioner will establish lines of responsibility applicable to all employees." 146 In the view of the Tribunal, it is by no means clear whether the term "employer" in section 53 of the Act should be confined to its common law meaning. Such a narrow construction may not represent the intention of parliament in the context of the position of the New South Wales Police Service and police constables acting in the performance of their duties. Parliamentary speeches in support of the Act, quoted earlier, show that it was intended that the Act follow the precedent of other Acts of a similar nature passed in Australia. No doubt this would encapture the Racial Discrimination Act 1976 (CTH) which expressly ratified CERD (See Section 7 of that Act). 147 It is reasonable to infer that the New South Wales Parliament intended that the New South Wales legislation would adopt the principles of CERD. Articles 4(c), 5 and 6 of CERD require state authorities such as the police service to prevent racial discrimination by government officers, by individual groups or institutions and to provide effective protection and remedies against contravention of the Convention. 148 More generally, the High Court in Minister for Immigration & Ethnic Affairs v Teoh [1995] 128 ALR at 353 dealt with the principle that a statute is to be construed so as to conform with established rules of international law. In a joint judgment Mason CJ and Deane at 361-2 said: "It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute … But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accord with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because parliament, prima facie, intends to give effect to Australia's obligations under international law. It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law. The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia's international obligations. That indeed is how we regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations." 149 A narrow interpretation of the term "employer" in section 53, by limiting the term to the common law meaning in the case of the Police Service and a police constable, would defeat the intention of the New South Wales Parliament to give effect to CERD. The Police Service would be immune from liability for racially discriminatory acts of police constables in performing their duties. Victims of racial abuse by police constables performing their duties would be left with remedies under the Act only against the police constables concerned. Such remedies, particularly where monetary compensation is awarded, in a large proportion of claims would be ineffectual. Such a result is contrary to the provisions of CERD and it would produce a result that is manifestly unreasonable. A meaning of "employer" in section 53 which avoids this result is justified and appropriate. Reasonableness and conformity to principles of interpretation are achieved by interpreting the meaning the term "employer" in Section 53 of the Act so as to encompass not only the common law meaning of that term, difficult as that is to interpret (see Finkelstein J in Konrad), but a broader relationship as described by Finkelstein J as: "a person who performs work or labour (personal services) for another; that is to say, a person who sells his labour and not the product of his labour." 150 An examination of the provisions of the Police Act do not detract from the application of this definition of employee to the position of a police officer appointed under that Act. A police officer is under the direction and control of the Commissioner of Police who is empowered by Section 8 (4) to issue instructions to police officers as to the management and control of the police service. Although these instructions may not extend to the manner in which the police constable carries out specific duties, they cover, in broad terms, matters affecting the day to day operations of the police constable in the performance of duties. Some aspects of these instructions so far as they are relevant to the application of Section 53 in the circumstances of this complaint are referred to later. 151 Mr Haylen QC submitted on behalf of the Police Service that it is not correct to approach the interpretation of Section 53 by focusing on the consequence that if the relationship of employer and employee does not exist, the person discriminated against or vilified will not have somebody of financial substance to levy damages against. Mr Haylen emphasises that the legislation is intended to bring about a change in attitude on matters about which the community perceived a difficulty and "in certain circumstances where there's sufficient connection that the employer may be liable." The experience of the Tribunal in complaints relating to discrimination by employees points markedly to the need to encompass the widest variety of relationships where a person is in a position to influence or control the actions of others, and by the exertion of such influence or control is able to reduce or eliminate actions which otherwise would be unlawful under the act. Section 53 of the act has the salutory effect of focusing the attention of persons in relationships of employer to employee to ensure that employees are educated about the need to act in a non-discriminatory manner to ensure that employees act lawfully. This responsibility is best sheeted home to employers through an exposure to monetary compensation payments if their employees fail to act in a non-discriminatory manner. The community is best protected by a broad application of Section 53 in this manner. 152 Applying the principles of interpretation and construction outlined earlier to the terms 'employer' and 'employee' in Section 53 of the Act, and having regard to the context of Section 53 as part of legislation intended to conform to international law, the Tribunal finds that when a police constable in the performance of duties acts in contravention of the Act, the Police Service is deemed by Section 53 of the Act to have done the act and is liable jointly and severally with the police constable for the liability that arises under the Act. 153 Under sub-section (1) of Section 53, such liability attaches to the Police Service unless the Police Service establishes that the Police Service did not, either before or after the doing of the Act, authorise the police constable, expressly or by implication, to do the act. By the amending Act of 1997, sub-section 3 was inserted into Section 53 which will have the effect in this complaint that the Police Service would not be liable for the acts of the police constable if the Police Service had taken all reasonable steps to prevent the police constable from contravening the Act. 154 The onus to establish these exceptions to liability is on the Police Service. THE VICARIOUS LIABILITY OF THE POLICE SERVICE – THE APPLICATION OF SECTION 53 155 Three senior officers of the Police Service presented evidence and material to support the Police Service contention that it had not authorised the actions of the police constables in the discriminatory manner that they carried out the apprehension and arrest of Edward Russell and to demonstrate that the Police Service had taken all reasonable steps to prevent the police constables from contravening the Act. The Tribunal has carefully considered all of the material that has been presented by these witnesses. 156 The import of the material following the report of the Royal Commission into Aboriginal Deaths in Custody in 1991, was the adoption by the Police Service of a more focused approach to its relationship with the Aboriginal community. From the period from 1992 to 1994, a considerable amount of activity occurred. For example, in October 1992 the Service held a Police Aboriginal Forum to consider a draft Police Aboriginal Policy Statement and The Police Aboriginal Council ("PAC") was formed. It was agreed that there should be developed an Aboriginal Strategy Plan and the implementation of its activities and of focal patrols. The Aboriginals Teaching Plan was launched on 20th November 1993, approximately 3 weeks before the incidents involving Edward Russell. A copy of that plan was produced to the Tribunal. Copies of the Plan were disseminated to all District and Patrol Headquarters. 157 PAC has continued to meet and to consider the application of the Plan. In December 1995 a working party was convened to review the Plan and its implementation. The working party had a wide representation of senior police and Aboriginal community members. The working party had extensive consultations with the Aboriginal communities. Following the interim report of the Royal Commission into the New South Wales Police Service in February 1996, recommendations were made to the Ombudsman's office including the establishment of an Aboriginal Complaints Unit. As a result, the working party updated the Plan and a new Strategic Plan (1997-2000) was prepared. Ms Doreen Peters, who holds the position of Administrator of Sydney Communications Centre at the Sydney Police Centre, stated that she is presently sitting on a working party, the purpose of which is to produce a policy statement on racism. 158 The acting Director, Operational Programmes Branch of the New South Wales Police Service, Ms Cheryl McCoy, produced a document which she describes as reflecting the "service policy" in general terms of the Police service. It is a document headed "Equity and Diversity" and it states: "This leaflet is designed to explain to all employees and potential employees of the New South Wales Police Service equity principles and relevant legislation which applies to the Service." 159 It depicts various individuals carrying out different functions in the Police Service. Most of these appear to be clerical type people who are not in uniform but one of the photos is of a uniformed police officer. It is intended to encompass police constables as employees and it is a document directed to them as well as to clerical staff. The document also states: "The New South Wales Anti-Discrimination Act provides that discrimination is illegal in various areas of public life. This is particularly relevant to the Police Service in areas of employment and provision of goods and services on the following grounds: Race (including colour, ethnic or ethno-religious background, descent or nationality)" This is the only specific reference in the document to racial discrimination. The document also states that the equity policies are designed to ensure that workplace behaviour and management practices are consistent with anti-discrimination legislation. 160 Two observations can be made about this document. Firstly, the Tribunal agrees with Ms McCoy that it is expressed in general terms. It contains no positive statement condemning racial discrimination and in particular, it contains no specific reference to a policy of anti-discrimination of Aboriginal people by the Police Service. Secondly, the document is consistent with other documents that were produced to the Tribunal which reflect attempts by the Police Service to encompass police constables in the ambit of the material produced by the Police Service to regulate the relationship between the Police Service and Aborigines. 161 In relation to the implementation of the Aboriginal Policy Statement & Strategic Plan 1997-2000, Ms McCoy annexed a document which she described as summarising progress to date. The document relates to Police/Aboriginal community workshops and it describes the holding of workshops in some locations and has a brief report on the progress of those workshops. The impression from reading that material is that the workshops are in an early stage of development and little progress has been made. Ms McCoy stated: "It has been decided that it is appropriate for the service to adopt a specific policy statement in relation to racism. To that end, a working party has been formed. This matter is progressing but I am not at liberty this time to discuss this further. Doreen Peters, who I am informed will also file an Affidavit in these proceedings, is a member of the working party. The policy statement will reflect the corporate position on racism." 162 Mr Devery Head of School, Operational Policing in the New South Wales Police Academy, Goulburn, gave evidence to the Tribunal of the inclusion in curriculum at the Academy of items dealing with the police and relationships with Aborigines. Those programs form a part of a much larger police training program. 163 The evidence produced by the Police Service is not sufficient, in the view of the Tribunal, to discharge the onus on the Police Service to satisfy the Tribunal that it has not authorised the actions of the police constables carrying out discriminatory and racial vilification conduct towards Edward Russell. The evidence shows that the Police Service has made increasingly focused actions to develop a better relationship between the member of the Police Service and the Aboriginal communities. The degree of the implementation of this approach varies in geographical areas with some Aboriginal communities participating and co-operating with the police efforts in different degrees. The evidence shows however that the Police Service has failed to develop and to disseminate to its operational police officers a definite and finite policy of anti-discrimination towards Aboriginal people. Ms Peters and Ms McCoy both confirm that the Police Service is only now developing a Policy Statement on racism. Without a definite policy which is adequately disseminated to its operational police force, police constables will have no positive direction other than statements of policy of a desire to improve relationships with Aboriginal communities. The very conduct which is complained of in this enquiry is likely to be repeated. The purpose of Section 53 of the Act to bring home to persons in a position of employer/employee relationships the need to manage and control actions of its labour force, is not being achieved. In the view of the Tribunal, it is not likely that police constables in the performance of their duties will respond adequately to the requirements of the anti-discrimination legislation without a positive and finite policy condemning discriminatory conduct towards Aboriginal people and supported by specific programmes of training of all levels of police officers as well as recruits. 164 The Tribunal finds that the New South Wales Police Service has not discharged the onus of satisfying the Tribunal under Section 53 of the Act that it did not authorise the unlawful discriminatory conduct and the racial vilification directed by the police officers to Edward Russell on 13th December 1993. In addition, the Tribunal finds that the Police Service has not taken all reasonable steps to prevent those police officers from contravening the Act in relation to their conduct on that occasion. SECTION 19 - "SERVICES" 165 In considering Section 19 of the Act there is a preliminary question as to whether, for the purposes of this enquiry, the appropriate provisions of Section 19 are those contained in the more recent amendment of that Section, under the Amending Act of 1997, being the provisions in their current form, or the provisions of the Section in the terms of the section at the time of the complaint or the time of the incidents. For the reasons that the Tribunal has given earlier dealing with the application of Section 53(3) to this enquiry, the Tribunal considers that the Amending Act sufficiently demonstrated the intention of Parliament that Section 19 as amended by that Act would not be confined to acts and things done after that act came into operation and that it would apply to circumstances and resulting complaints which have not been disposed of at the time the amending Act came into effect on 4th July 1997. The Tribunal has accordingly considered this complaint under the terms of the current provisions of Section 19. The Tribunal would observe that had the provisions of Section 19 in its original form been applied to these complaints, the issues arising under that Section would be different from the issues that have been raised for determination by the Tribunal. 166 The Act defines "services" as including: "services provided by a council or public authority." It was accepted for this enquiry that the Police Service is a public authority. 167 The submissions of the First Respondent sought to establish that services of the Police Service, did not encompass the arresting service by a police constable, as it is not a service provided to the alleged offender. This submission was adopted by Counsel for the other Respondents. Reliance was placed on the approach adopted by the High Court in IW v City of Perth [Supra] in which for different reasons the Justices of the Court held that the refusal by a local government authority to endorse a recommendation from its Town Planner to give planning approval of a day time drop-in centre for persons affected with HIV, was not a service. The Court, after observing that the Act should not be given a narrow interpretation, distinguished the decision of a refusal of approval from the provision of a service. 168 The Respondents' argument also relied on the decision of the Court of Appeal in Farah v Commissioner of Police of the Metropolis [Supra]. That case involved allegations of unlawful racial discrimination under the Race Relations Act (UK) where police officers were found not guilty of unlawful conduct under that Act when in answer to a call for assistance they detained and arrested a female who sought their assistance. The Plaintiff, in that case, did not suggest that pursuing, arresting and charging an alleged criminal was the provision of a service, but rather the argument was put that the service sought by the Plaintiff was that of protection and that she did not, because of her race, obtain the protection that others would have been offered. In seeking the protection of the police force in the arrest of those who assaulted her, the police force, it was held, had not provided a service to the Plaintiff. The Respondents described the Farah decision as adopting a traditional approach to the provision of a service and, focussed upon identifying the specific service being provided to the Plaintiff rather than merely stopping at the point where the provision of the service in a general sense can be identified. They emphasise that the focus is upon the person who is receiving the service, for the purpose of constructing the provision. 169 In IW v City of Perth, some of the justices of the High Court stated that Farah was correctly decided while other justices referred to Farah with approval. 170 The submissions of the Respondents alternatively submit that if the Tribunal should hold that the pursuit and arrest of Edward Russell was a service, it was not a service provided to him but rather a service provided to the community at large. 171 It was conceded by the Respondents that the definition includes the services provided by a public authority. This gives weight, in the view of the Tribunal, to the submissions of the Applicant that in construing the application of Section 19 to the terms of the apprehension and arrest of Edward Russell on 11th December 1993, it is not appropriate to confine that application to the singular service provided by the police constables to Edward Russell on that occasion. The Tribunal has found that through the application of Section 53 of the Act, the police service was deemed to have done the acts of racial discrimination and the acts of unlawful racial vilification about which Edward Russell complained. In the view of the Tribunal, it is accordingly the nature of the services provided by the Police Service rather than the individual service provided by the police constables to Edward Russell, that requires consideration in the context of the liability of the Police Service in this complaint. 172 Section 6 of the Police Act is in the following terms: "6.(1) The mission of the Police Service is to have the police and the community working together to establish a safer environment by reducing violence, crime and fear. (2) The Police Service 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 byway of prevention and detection of crime; and (b) 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 Police Service includes a reference to the functions of members of the Police Service. (5) The provision of police services in emergencies and rescue operations is subject to the State Emergency and Rescue Management Act 1989 and to the Essential Services Act 1988." 173 The mission of the Police Service and the functions of the Police Service as set out in that section demonstrate that the responsibilities of the Police Service include the protection of persons and property from injury and damage, "whether arising from criminal acts or in any other way", and to do so in a safer environment for the community by reducing violence, crime and fear. In the view of the Tribunal, this section makes it apparent that the New South Wales Police Service, for the purposes of the application of Section 19, will act unlawfully when it provides those services, inter alia, in terms which discriminate against a person on the grounds of race. The function of the Police Service in the provision of services to prevent injury to persons and damage to property would often, as was the case in these incidents, be carried out by police constables whose acts are deemed by Section 53 of the Act, to be acts of the Police Service. Under the Act, the Police Service has responsibility for the acts of police constables carrying out a function of the Police Service. In this complaint, the Police Service, through the actions of the police officers at the scene of the apprehension and arrest, were carrying out one of the functions for which the Police Service is responsible under the Police Act. The Police Service had a responsibility to Edward Russell, in accordance with its responsibilities under the Police Act, to carry out its functions without injury or damage to person or property. Edward Russell suffered injury during the apprehension and arrest. His property was damaged. His shoes were removed and discarded by the police officers or one or more of them. In these circumstances, the services of the Police Service were provided to a member of the community in terms which were discriminatory and which constituted unlawful racial discrimination and unlawful racial vilification. For reasons expressed earlier, the Tribunal considers that those unlawful acts were carried out by the Police Service on the grounds of Edward Russell's Aboriginal race. 174 In the view of the Tribunal, this construction and application of Section 19, conforms to the canon of construction which require the Act to be interpreted not on a narrow basis and it distinguishes the approach adopted in IW v City of Perth and the Farrer decision, because in this complaint the unlawful conduct which has been found to have occurred is unlawful conduct provided by the Police Service to Edward Russell in the context of the responsibilities and functions of the Police Service. 175 The approach adopted by this Tribunal in its consideration of the application of Section 19 to the functions of the Police Service and its officers, is consistent with the approach adopted by the Tribunal in Mahmut v The NSW Department of Health (unreported, 31 October 1994). In that enquiry, the Tribunal considered the application of Section 19, in the form prior to its amendment in 1997, in relation to the services of food inspectors in the Department of Health carrying out inspections of the complainant's shop and his subsequent prosecution. That Tribunal applied a broad interpretation of 'services' and found that the Department of Health provided services for the purposes of Section 19. 176 In the view of the Tribunal, section 19 of the Act applies to the circumstances that affected Edward Russell on 11th December 1993. 177 It follows that the Tribunal finds that the Police Service acted unlawfully in breach of Section 19 of the Act, by reason of the contravention of Section 7 (1) (a) and Section 20C (1), by the police officers. THE UNLAWFUL CONDUCT OF THE POLICE OFFICERS - SECTION 52 178 It is then necessary to consider the liability of the police officers for the contraventions of the Act perpetrated by their actions. 179 In M -v- R Pty Ltd (supra) the Equal Opportunity Tribunal considered a similar situation. That enquiry involved a complaint where the Tribunal had found, by the application of Section 53, that an employer acted unlawfully in a sex discrimination claim. The Tribunal applied Section 52 to determine that an employee whose actions towards a fellow employee were discriminatory, were liable for those actions. Graham J at p. 77175 said: "It follows from what has already been said, that, where an employer is liable, personally …….. vicariously (by virtue of Sec. 53) for an act of unlawful discrimination, the provisions of Sec. 52 are applicable to any person who "causes, instructs, induces, aids or permits" the employer to do an act "that is unlawful by reason of the Act." ……………… Accordingly, once principal liability is established as against the employer, the complainant is able to proceed against the second respondent jointly and severally." 180 The same principle applies to the complaints in this enquiry. The conduct and language of the police officers towards Mr. Russell during his apprehension and arrest at Oberon on 11 December 1993, caused, induced, aided and permitted the Police Service to be in breach of Section 19 of the Act. 181 In the view of the Tribunal, the police officers are liable under Sec. 52 for their unlawful actions on that occasion. SECTION 113 and SECTION 88A (1) 182 In the introduction to this decision, the Tribunal described the background of the complaint and noted that the complaint had been made to the Board by the parents of the late Edward Russell, pursuant to Section 88A (1) of the Act. Edward Russell died in late 1999. Section 88A (1) of the Act enables the complaint to survive if the Complainant dies before the complaint is finally determined. The section provides that the estate of the Complainant may continue the carriage of the complaint, and: "(b) is entitled to the benefit of any monetary sum ordered to be paid by the Respondent in respect of the complaint." 183 It was submitted by Counsel for the police officers that Section 88A(1)(b) is limited in its operation and entitles the estate of the Complainant to the benefit of any sum ordered to be paid only where the order for payment had been made prior to the Complainant's death. The effect of the submission in this complaint would be to prevent the making of an order for monetary compensation, as no order has been made prior to Edward Russell's death. 184 The submission relies on the development of the law prior to the introduction of this section and in particular on the decision in Stephenson v HREOC (1996) 68 FCR 290 where the full Court of the Federal Court held that a complaint made to HREOC under the Sex Discrimination Act 1984 (CTH) does not abate upon the death of the Complainant. That decision relied on a broad interpretation of the Sex Discrimination Act. In order to ensure a similar application under the Act, the Attorney General, the Honourable JW Shaw, included in the Amending Act in 1997, Section 88A about which he said in his Second Reading Speech: "There is a public need to encourage non-discriminatory behaviour, notwithstanding the death of an individual. This amendment will make sure an executor of the Complainant's estate may continue the complaint, although there would be no personal benefit to the Complainant." 185 The argument of Counsel for the Police Officers is to attach to the interpretation of Section 88A(1)(b) a prohibition against the payment of personal benefits to the complainant and to restrict the operation of that sub-section to the situation where an order for payment has already been made prior to the death of the complainant. 186 The Tribunal does not agree with this proposition. The words of the sub-section should be given their natural meaning. There is no ambiguity in the application of the section, as in this complaint, where there has been no monetary award prior to the death of the Complainant. The estate of the late Edward Russell can be awarded a monetary sum by way of compensation without distorting the words of the sub-section. REMEDIES 187 The effect of the decisions of the Tribunal is that the Police Service and each of the police officers named as Respondents has acted unlawfully in breach of Section 19 and Section 20C of the Act. 188 The Applicant has sought from the Tribunal a number of remedies. Firstly, a direction that the Police Service and the police officers publish an apology to the mother and father of the late Edward Russell. Secondly, a direction for the holding of an enquiry into the failure of the Police Service to adequately investigate the complaints relating to the treatment by the police officers of the late Edward Russell at the scene of his apprehension and arrest on 11 December 1993. Thirdly, an award of compensation to the Estate of the late Edward Russell. 189 The New South Wales Ombudsman, in his final report of his investigation of the complaints by Mr Curnuck and Mr and Mrs Russell, included in his recommendations, that a formal written apology be sent to Mr Russell. Pursuant to that recommendation, the Police Service wrote to Mr Curnuck and toMr Russell a letter which expressed the regret of the organisation that police exhibited a lack of professionalism and consideration during the pursuit and the apprehension of Edward Russell on the evening of 11th December 1993. In the view of the Tribunal, that expression of regret does not constitute a sufficient apology for the discriminatory conduct of the police officers. 190 In relation to the claim that a further enquiry be held to ascertain the specific involvement of the police officers in the incident on 11th December 1993, the Tribunal considers that it does not have the authority under the Act to order such a broad-based enquiry nor has there been sufficient proposals put before the Tribunal that would enable the Tribunal to formulate a specific direction for the holding of an enquiry of this nature. As a considerable time has elapsed since these incidents on 11th December 1993, the Tribunal would doubt that an effective enquiry to ascertain more details of those incidents could be held. The Tribunal therefore declines to give a direction for the holding of such enquiry. 191 The Tribunal needs to consider the extent to which and the manner in which monetary compensation should be awarded for the consequences of the unlawful conduct to which Edward Russell was subjected. It has been submitted by the Applicant that the Tribunal is entitled to make separate awards of compensation in respect to the findings of unlawful racial discrimination and unlawful vilification. Counsel for the police officers disputes that the Tribunal can make separate awards because the claims arise out of the one incident and the one complaint. It is the view of the Tribunal that it is not constrained to make one award for compensation where a number of claims are made under one complaint. Nor, in the view of the Tribunal, should the question of separate awards be governed by the number of separate incidents giving rise to separate claims. The relevant consideration is the distinct breaches of the Act arising out of the findings of separate and distinct unlawful conduct. As in this complaint, the Police Service and the police officers have acted unlawfully in breach of two separate divisions of the Act. Edward Russell, the victim of those unlawful breaches of the Act, has suffered separate and distinct damage. 192 The evidence shows that Edward Russell suffered physical damage and stress, hurt and humiliation in the incidents. The Occurrence Report filed at the Bathurst Police Station, a document that was part of the material submitted to the Tribunal, includes a notation by Sgt Borland, that at 10.32am on 11th December 1993 he took Edward Russell to the Bathurst Jail where he was examined by the medical staff of the Jail Hospital. That Hospital refused to accept Edward Russell and he was then taken by Sgt Borland to Bathurst District Hospital. Edward Russell was complaining of a sore left hand which the Hospital staff at the Bathurst Jail stated should be x-rayed. At the Bathurst Hospital where Mr Russell was examined by Dr Scott, who examined his hand which he noted was bruised and swollen and he placed a bandage on the hand and he was allowed to leave. It appears however from the Hospital records that was included in the material, that Edward Russell had his hand x-rayed and it was not until the following Monday when another medical officer at the Hospital examined the x-ray that it was discovered that there was a slight fracture of the left wrist. It seems that that fracture was never treated as Edward Russell in the meantime had been conveyed back to the Bathurst Jail. The clinical records of the Hospital at the Jail show that the examination of Edward Russell on 11th December 1993 resulted in a record being kept which stated: "alleges police assault. Swollen (L) hand. Swelling above (L) ear, handcuff marks, grazed back shoulder, scratches (C), upper chest CMO trauma (LI) SCLERA." 193 The clinical records of the Jail Hospital also shows that Edward Russell was examined at the Hospital on 15th December 1993 and the record is in the following terms: "Claims assault by police with tendered L Hand, residual small ………. Red mark L wrist …….. Also had a lump over L ear." 194 There was a notation in the clinical notes on 18th December 1993 "to stay permanently in remand, not to go to Hospital.". 195 In his statement of 1st July 1998, Edward Russell described at that time that he was still having nightmares about the events of the arrest on 11th December 1993 and that he was terrified because he felt he could have been dead. "The terror that I felt kept recurring, in the continuing nightmares that I had." 196 He described the effect on him at the time in these terms: "The events also caused me a loss of self esteem because I was treated so badly as if I were barely human. The knowledge that people could treat another human being this way would be shocking and offensive to me." 197 It is clear to the Tribunal that the language used in that part of the declaration was unlikely to be the actual words of Edward Russell whose other statements indicate that he did not have the literary ability to express himself in such a vivid way. Nevertheless, the Tribunal accepts that the declaration does convey an intention on Edward Russell's part to express his continued post event stress arising out of the incidents. 198 Mr and Mrs Russell, the parents of Edward Russell, in their evidence describe their shock when they first saw Edward Russell after the incident. Mr and Mrs Russell reside in Walgett. At the time of the assault they were in Sydney. They were not advised by the Police that their son had been charged or was being held in custody. It was not until approximately a week after they returned to Walgett that they were advised by relatives in Bathurst that Edward Russell was going to Court. Mr and Mrs Russell attended at the Court at Bathurst. This would have been approximately 10 days after the 11th December 1993. Mrs Russell stated that when she saw her son she could see a very large lump on his head and that it was towards the middle of the head and a little to the left. She said that she could see the lump very clearly and that her son said to her: "That was when they fucking rammed my head into the bullbar." 199 Edward Russell also complained to his mother that the Police had put the handcuffs on his wrists very tightly. She said that he showed her the marks still on his wrists and that those marks went about half way around the wrist on the inside and sides of the wrist. Mrs Russell described that she saw that on one of his hands the palm on one side and the wrist on that side were very swollen. She said that her son said to her: "The coppers did that to me." 200 Mrs Russell also said that her son was not the same as he had been in terms of his personality before the incidents. She said that she noticed the following: He complained often that his eyes were watering and he needed glasses; When she visited him in jail he would say: "Mum is anything happening about those coppers who bashed me?" He complained often that he could not sleep and said: "They are going to kill me." He also said: "The coppers. They threatened to shoot me and kill me." He complained that he frequently had nightmares about the police. She recalled him saying words on a number of occasions to the effect: "Mum I've had a nightmare. The police said they are going to kill me. They are going to shoot me." He would get very angry when he talked about the police. He would get angry easily whereas before the assault he was fairly even tempered. 201 Mr Edward Jack Russell confirmed the observations of Mrs Russell about their son. Medical reports from Psychologists who examined Edward Russell in December 1993 and April 1994, were produced. It appears that these reports were prepared for the purposes of the criminal charges that were pending against him. The medical description by the Psychologists vary in their description of the degree of his intellectual disability. The only report that specifically deals with the effect on him of his experiences of 11th December 1993 was a report from Dr Michael Paton, Psychiatrist, who is currently the Consultant Psychiatrist with the South East Area Health Service and was formerly of the Aboriginal Mental Health Service, Central Sydney. He examined Edward Russell on three occasions, twice in August 1998 and on the last occasion on 3rd June 1999. Dr Paton stated: "In terms of the psychological consequences of this incident (the incident on 11th December 1993) it is clear that Edward Russell developed a post traumatic stress disorder although it is unclear to me as to the exact timing and duration of these symptoms." 202 He stated that it was clear to him that the post traumatic stress disorder symptoms had persisted intermittently since that time. 203 The Tribunal is satisfied that the evidence establishes that Edward Russell suffered some physical injury, namely a fracture of his wrist and severe lump on his head as a consequence of the excessive force used in his apprehension and arrest, and that he suffered psychological reactions to his experiences on 11th December 1993, such as post traumatic stress, continuing severe nightmares and severe fear of police reactions towards him. 204 The Tribunal notes that there is no claim on behalf of Edward Russell for economic loss. 205 It is the view of the Tribunal that an appropriate award of compensation should be made to the estate of the late Edward Russell, pursuant to Section 88A (1) of the Act in respect to the finding of unlawful racial discrimination and the finding of unlawful victimisation. On each claim, the Tribunal assesses an appropriate award of compensation at $15,000.00, making a total compensation award of $30,000.00 206 As Senior Constable Mountford and Senior Constable Callaghan were not served with notice of the claims or notice of the hearing of the enquiry, the Tribunal agrees with the submissions made to it that the Tribunal is unable in those circumstances to include those two officers in the directions to be made by the Tribunal. COSTS 207 Counsel for the Applicant indicated that in the event that the Tribunal found the complaints substantiated, that the Applicant sought an order of costs in favour of the Applicant in relation to this enquiry. The Tribunal would wish to give all the parties a further opportunity to make representations as to whether an order for costs should be made in this enquiry in favour of the Applicant. The Tribunal would direct that the Applicant arrange for the matter to be re-listed for the purposes of argument as to whether the Tribunal is justified in making an order for costs in its favour and it will reserve that question for consideration after hearing such argument that the parties wish the Tribunal to consider. THE DIRECTIONS OF THE TRIBUNAL 208 Pursuant to Section 113 of the Act, the Tribunal makes the following directions: 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. "A" 1 On the 11 December 1993, eleven police officers stationed at the Bathurst Police Station apprehended and arrested Edward John Russell, an Aboriginal person, on the Wisemans Creek Road at Oberon. 2 The Equal Opportunity Division of the Administrative Decisions Tribunal has found that the conduct of the police officers, and the language used by them, towards Mr Russell during his arrest, were in breach of the racial discrimination and the racial vilification provisions of the Anti Discrimination Act. 3 The Tribunal also found that the NSW Police Service was liable under the Act for the conduct of the officers on that occasion. The NSW Police Service and we, the officers involved who are still members of the police service, apologise to the parents of the late Mr Russell, for the conduct of the police officers on that occasion. "B" (To: Mr and Mrs Russell) I am a member of the NSW Police Service who was involved in the apprehension and arrest of your son, Edward John Russell, on the Wisemans Creek Road, at Oberon, on 11 December 1993. The Equal Opportunity Division of the Administrative Decisions Tribunal has found that the conduct of the police officers, and the language used by them, towards your sonduring his arrest, were in breach of the racial discrimination and the racial vilification provisions of the Anti Discrimination Act. I wish to apologise to you for my conduct on that occasion. "B" (To: Mr and Mrs Russell) On the 11 December 1993, eleven police officers stationed at the Bathurst Police Station apprehended and arrested Edward John Russell, an aboriginal person, on the Wisemans Creek Road at Oberon. The Equal Opportunity Division of the Administrative Decisions Tribunal has found that the conduct of the police officers, and the language used by them, towards Mr Russell during his arrest, were in breach of the racial discrimination and the racial vilification provisions of the Anti Discrimination Act. The Tribunal also found that the NSW Police Service was liable under the Act for the conduct of the officers on that occasion. On behalf of the NSW Police Service I wish to apologise to you for the conduct of the police officers on that occasion. 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.