Budd v State of New South Wales (New South Wales Police) [2006] NSWADT 14

CITATION: Budd v State of New South Wales (New South Wales Police) [2006] NSWADT 14

DIVISION: Equal Opportunity Division

APPLICANT PARTIES: Pamela Budd RESPONDENT State of New South Wales (New South Wales Police)

FILE NUMBER: 051087; 051068

HEARING DATES: 05/09/05

SUBMISSIONS CLOSED: 12/08/2005

DATE OF DECISION: 01/16/2006

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application for leave to proceed

MATTER FOR DECISION: Principal matter

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Police Act 1990

Anti-Discrimination Commissioner v Acting Ombudsman [2003] TASSC 34 Commissioner of Police v The Estate of Edward John Russell & Ors [2002] NSWCA 272 (20 August 2002) CASES CITED: Commissioner of Police, NSW Police Service v Estate of Russell [2001] NSWSC 745 Ella and ors v State of New South Wales (NSW Police) [2005] NSWADT 145 IW v City of Perth (1997) 191 CLR 1 Xu v Sydney West Area Health Service [2006] NSWADT 3

APPLICANT In person REPRESENTATION: RESPONDENT J Ford, solicitor

ORDERS: 1. File 051068 Leave is refused; 2. File 051087 Leave is refused.

REASONS FOR DECISION Introduction 1 Ms Budd is asking for the Tribunal's permission to go ahead with two complaints of discrimination. The President of the Anti-Discrimination Board declined the complaints as lacking in substance. When the President declines a complaint as lacking in substance, s 96 of the Anti-Discrimination Act 1977 (ADA) requires the applicant to obtain the Tribunal's permission before the complaints can go ahead. Ms Budd alleges in both complaints that officers from NSW Police discriminated against her on the ground of her disability. Ms Budd suffers from agoraphobia and social phobia. She rarely leaves her home and apart from her son, is generally unable to speak to people face to face. She conducts all her litigation by facsimile and by phone. 2 The first complaint (File No 051068) was lodged with the President of the Anti-Discrimination Board on 23 September 2004. Some of the incidents about which Ms Budd complained happened before 23 March 2004 and were therefore outside the statutory time limit of six months. The President of the Board did not accept any aspect of the complaint which occurred more than six months before Ms Budd lodged her complaint. Two incidents occurred within the statutory time frame. According to Ms Budd, the first was on 22 August 2004 when police officers knocked on her door. The second was on 1 September 2004 when Ms Budd says that police officers told her that they would break down her door if she did not open it. 3 Police officers admit that they knocked on Ms Budd's door on 21 August (not 22nd August as Ms Budd alleged) and on 1 September 2004, in response to complaints by a neighbour. NSW Police say that Ms Budd and the neighbour have Apprehended Violence Orders (AVOs) against one another and there have been many disputes about the enforcement of those orders. Ms Budd's neighbour complained that Ms Budd was in breach of one of the AVOs. Police say that they spoke to Ms Budd's neighbour and then attempted to speak to Ms Budd to obtain her version of events. Police allege that on 21 August 2004, Ms Budd refused to open her door. In relation to the incident on 1 September 2004, NSW Police say that one of the officers concerned had met with Ms Budd on several occasions prior to that time. They went on to say that, "The officer banged on the door and asked Ms Budd to speak with him. Ms Budd told the officer to go away and to speak with her through the Minister." 4 The second complaint (File No 051087) was lodged with the President of the Anti-Discrimination Board on 23 February 2005 and alleges that a police officer refused to properly re-investigate allegations that Ms Budd's sister had fraudulently deprived her of ownership of a property in 1977. In particular, Ms Budd says that Sergeant Fiddick decided not to proceed with the prosecution of her sister because he formed a view that the Local Court would not accept Ms Budd's evidence, or she would not be able to give oral evidence in Court, because of her disability. 5 With the consent of the parties, the issue of whether the Tribunal should grant leave for the complaints to proceed was determined "on the papers" pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Approach to determining whether to grant leave 6 In Xu v Sydney West Area Health Service, [2006] NSWADT 3 at [18], the Tribunal set out the approach to be taken to applications for leave under s 96 of the ADA: The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President's decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with the ground of discrimination. First complaint 7 Ms Budd's version of events. It is not clear whether Ms Budd is alleging that police officers asked her to open the door on or about 21 August or 1 September, or on both occasions. Whatever the date, Ms Budd says that there are several reasons why police officers should not have demanded that she open her door. They include: -she could not have been in breach of an AVO that her neighbour took out against her because her disability prevents her from leaving her home; -her neighbour wanted to harass her by telling police she had breached the AVO; and -police officers know that her disability prevents her from speaking face to face with them and they should not have demanded that she open her door. 8 Elements of the complaint. Whether or not she was actually in breach of the AVO order is not the point. Neither is the motivation of her neighbour in contacting the police. The only potentially relevant point is that police officers, despite knowing of her disability, demanded that she open the door. If this matter went to a hearing, the onus would be on Ms Budd to establish that NSW Police were in breach of the ADA. Section 49M makes it unlawful for a person who provides services, to discriminate on the ground of disability by refusing to provide a person with those services or by providing the services on certain terms. Section 49M states that: (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services. 9 NSW Police left to one side the question of whether they were providing a service to Ms Budd when they knocked on her door on or about 21 August or 1 September 2004. Despite the absence of any submissions on this point, if this matter went to a hearing it would be necessary to define the "services" in question in order to determine whether those services had been refused or provided on certain discriminatory terms. (See IW v City of Perth (1997) 191 CLR 1 at 16-17 per Brennan CJ and McHugh J.) Of particular relevance to this question is Sully J's decision in Commissioner of Police, NSW Police Service v Estate of Russell [2001] NSWSC 745. Although Russell's case concerned the race discrimination provisions of the ADA, the wording in the disability discrimination provisions is virtually identical. Sully J concluded that the Police Service (as it then was) is a public authority as defined in s 4(1)(e) of the ADA. That provision includes in the definition of services "services provided by a . . . public authority". His Honour set out the provisions of s 6 and 7 of the Police Service Act 1990. That Act has since been amended by the Police Service Amendment (NSW Police) Act 2002. The relevant Act is now the Police Act 1990, which establishes NSW Police. The provisions of ss 6 and 7 are in the same terms as the Police Service Act 1990. In particular under s 6(2)(a) of the Police Act 1990, one of the functions of NSW Police is to "provide police services for New South Wales." "Police services" are defined in s 6(3)(a) and (b) to include "(a) services by way of prevention and detection of crime and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way . . ." 10 Sully J held at [43] and [44] that: It seems to me that the Police Service of New South Wales, as established by section 4 of the Police Service Act, has by reason of sections 6 and 7 of that Act, duties, functions and characteristics sufficient to establish it as a public authority in the sense discussed by the High Court. The Police Service of New South Wales cannot operate, relevantly, except by and through police officers who are serving members of the Service. It seems to me to follow that services provided by such serving police officers are services provided by a public authority in the sense contemplated by the Anti-Discrimination Act. A correct assessment of the conduct of the individual police officers in the course of their pursuit and arrest of the late Mr. Russell is in my opinion as follows: [1] The police officers who took part in the pursuit of Mr. Russell were providing to the community at large services of the kind described in section 6(3)(a) and (b) of the Police Service Act. [2] The police who took part in the arrest of the late Mr. Russell were also thereby providing to the community at large services of those two kinds. [3] As soon as the late Mr. Russell had been formally arrested, and had passed thereupon into police custody, the arresting police, and any police officer who had any part at all in the way in which Mr. Russell was subsequently handled; or who witnessed the way in which Mr. Russell was handled; became thereupon charged with a public duty to provide to the late Mr. Russell police services by way of the protection of his person from injury or death, and the protection of his property from damage, "whether arising from criminal acts or in any other way". 11 It is apparent from Sully J's decision, that a police officer will be providing "services by way of prevention and detection of crime" to members of the public when investigating an allegation that a criminal offence has been committed or is about to be committed. But they are not providing services to an individual suspect (in this case Ms Budd) until after that person has been arrested. Although the Supreme Court decision went on appeal to the Court of Appeal, that Court did not deal with the issue of the definition of "services." (Commissioner of Police v The Estate of Edward John Russell & Ors [2002] NSWCA 272 (20 August 2002)). The Tribunal is bound by decisions of the Supreme Court. 12 Conclusion. In this case, police were investigating an allegation that Ms Budd was in breach of an AVO order. She was the suspect in relation to that investigation. Because officers of NSW Police are not providing services to alleged suspects unless and until that person has been formally arrested, NSW Police were not providing Ms Budd with a service within the meaning of that term in the ADA. If that is correct, then there was no breach of s 49M. Ms Budd has not provided a substantial reason for the Tribunal to grant leave for her complaint to proceed. Indeed, in our view, Ms Budd's complaint of discrimination on the ground of disability has no reasonable prospects of success and leave is refused. Second complaint 13 In relation to the second complaint, Ms Budd would have to prove that Sergeant Fiddick decided not to proceed with a prosecution in relation to alleged fraud by Ms Budd's sister and that the refusal was the refusal of a service to Ms Budd. The Tribunal considered a similar question in Ella and ors v State of New South Wales (NSW Police) [2005] NSWADT 145 (29 June 2005). The following passage at [21] of that decision is relevant: . . . Consequently, the services in this case can be defined as "services by way of prevention and detection of crime and the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way . . ." However, those services do not include a decision as to whether or not to charge a person with an offence. In Anti-Discrimination Commissioner v Acting Ombudsman (2003) 11 Tas R 343, the Supreme Court of Tasmania decided in the context of the Anti-Discrimination Act 1998 (Tas) that when the Director of Public Prosecutions conducts criminal prosecutions, he is not providing services to the victims of crimes. Similarly, when police are determining whether or not to charge a person with a crime, they cannot be said to be providing services to the victims or to the community at large. 14 In Anti-Discrimination Commissioner v Acting Ombudsman [2003] TASSC 34 at [4] the issue before the Full Court of the Supreme Court of Tasmania was whether a decision by the Director of Public Prosecutions not to prosecute a person for an alleged offence was the provision of a service under the Tasmanian legislation. The Full Court held at [4] that: The DPP holds office pursuant to the provisions of the Director of Public Prosecutions Act 1973, and is not an officer of any government department. When he conducts criminal prosecutions, he does not thereby provide services, goods or facilities to the victims of crimes. 15 Although NSW Police is a public authority, the Tribunal has previously decided that a decision not to commence a criminal prosecution does not amount to the refusal of a service to the alleged victim of the crime. Although not bound by its own decisions, the Tribunal's previous decision means that this complaint does not have any reasonable prospects of success. Ms Budd has not provided any other substantial reason for leave being granted. Orders 1. File 051068: Leave is refused. 2. File 051087: Leave is refused.