New South Wales Court of Appeal CITATION: COMMISSIONER OF POLICE v MOHAMED [2009] NSWCA 432 HEARING DATE(S): 19 October 2009 JUDGMENT DATE: 23 December 2009 JUDGMENT OF: Spigelman CJ at 1; Basten JA at 2; Handley AJA at 51 1. The questions referred to the Court on 15 July 2009 be answered as follows: Q1: Is the investigation of an alleged criminal offence by members of the New South Wales Police Force a "service" within the meaning of s 19 of the Anti-Discrimination Act 1977 (NSW)? A: Conduct of police officers with respect to a request for assistance in relation to possible criminal activity, where protection of persons or property may be required, can involve the refusal or provision of "services" for the purposes of s 19 of the Anti-Discrimination Act. Q2: If so, is the investigation of an alleged criminal offence by members of the New South Wales Police Force a "service" to: (a) a person (or persons) reporting the event relating to the alleged criminal offence? DECISION: (b) any other person? A: The aggrieved person, as described in s 7(1) and the other person, as described in s 19, will be the person or persons who are treated less favourably or required to comply with a requirement or condition, as described in s 7(1), in relation to the provision or refusal to provide the services and need not be limited to the person or persons reporting an event relating to an alleged criminal offence. Q3: Are services by way of the detection and prevention of crime as defined by s 6(3) of the Police Act 1990 (NSW) a "service" within the meaning of s 19 of the Anti-Discrimination Act 1977 (NSW)? If so, to whom is that service provided? A: (a) The detection and prevention of crime can constitute "services" for the purposes of s 19 of the Anti-Discrimination Act, and (b) the answer to question 2 is repeated. 2. Order that, to the extent that the respondent has incurred costs in this Court which may be recoverable by a litigant in person, the Commissioner pay those costs. CATCHWORDS: HUMAN RIGHTS – discrimination – racial discrimination – provision of services –police officers summoned to investigate alleged incidents of abuse and assault – alleged failure to act upon and take complaint seriously – availability of claim of racial discrimination against members of Police Force – whether fulfilment of duties constitutes 'service' for purposes of complaint of racial discrimination – whether general law immunity of police officers from actions in tort applies to complaints of discrimination – Anti-Discrimination Act 1977 (NSW), ss 7, 19 - POLICE – duty to investigate alleged criminal offences – duty to protect persons and property – duty to prevent and detect crime – whether fulfilment of duties constitutes 'service' for purposes of complaint of racial discrimination – identification of persons to whom services are provided – Anti-Discrimination Act 1977 (NSW), s 4(1) – Police Act 1990 (NSW), s 6(3) - PROCEDURE – referral of question of law – Administrative Decisions Tribunal – no fact-finding exercise undertaken by Appeal Panel prior to referral – no set of agreed facts – relationship between questions of law and factual circumstances of particular case – difficulty of determining abstract questions with sufficient utility and specificity - WORDS AND PHRASES – "police services" – "racial discrimination" – "services" Administrative Decisions Tribunal Act 1997 (NSW) , ss 113, 118 Anti-Discrimination Act 1977 (NSW), ss 4, 4B, 7, 19, 24, 39, 53, 89B, 90, 92, 93C, 115 LEGISLATION CITED: Judiciary Act 1903 (Cth), s 64 Police Act 1900 (NSW), ss 6, 7, 208 Race Relations Act 1976 (UK), ss 1, 20 Uniform Civil Procedure Rules 2005 (NSW), rr 6.35, 6.36 CATEGORY: Principal judgment Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce [2008] NSWCA 140 Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 Australian Postal Commission v Dao (1985) 3 NSWLR 565 Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745 Commissioner of Police v Estate of Russell [2002] NSWCA 272; 55 NSWLR 232 Cran v State of New South Wales [2004] NSWCA 92; 61 NSWLR 95 Farah v Commissioner of Police of the Metropolis [1998] QB 65 Gichura v Home Office [2008] EWCA Civ 697 Hill v Chief Constable of West Yorkshire [1989] AC 53 CASES CITED: IW v City of Perth [1997] HCA 30; 191 CLR 1 Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; 210 CLR 1 Mohamed v State of New South Wales (NSW Police Force) [2009] NSWADT 51 Philip Morris Ltd v Ainley & Inc Nominal Defendant [1975] VR 345 Re Anti-Cancer Council of Victoria; Ex parte The State Public Services Federation [1992] HCA 53; 175 CLR 442 Renmark Hotel Inc v Federal Commissioner of Taxation [1949] HCA 7; 79 CLR 10 Savjani v Inland Revenue Commissioners [1981] QB 458 Sullivan v Moody [2001] HCA 59; 205 CLR 562 Tame v New South Wales [2002] HCA 35; 211 CLR 317 Waters v Public Transport Corporation [1991] HCA 49; 173 CLR 349 State of New South Wales (Commissioner of Police) - Appellant PARTIES: Rehab Mohamed - First Respondent Sanaa Mohamed - Second Respondent Mounir Mohamed - Third Respondent FILE NUMBER(S): CA 40329/09 COUNSEL: P Menzies QC/M Hutchings - Appellant SOLICITORS: Sparke Helmore Lawyers - Appellant Respondents: Self-represented LOWER COURT JURISDICTION: Administrative Decisions Tribunal of NSW - Appeal Panel LOWER COURT FILE NUMBER(S): ADT 099016/09 LOWER COURT JUDICIAL OFFICER: Deputy President Hennessy, Judicial Member Huntsman, Non-Judicial Member Hayes LOWER COURT DATE OF DECISION: 15 July 2009 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40329/09 ADT 099016/09 SPIGELMAN CJ BASTEN JA HANDLEY AJA 23 December 2009 COMMISSIONER OF POLICE v Rehab MOHAMED Headnote In July 2007 Ms Rehab Mohamed and her family were at their home in Blacktown. They claimed that they were abused and assaulted by members of a neighbouring family. Ms Mohamed rang police and two officers attended at the family home. However, it is alleged that the officers were rude to the family and failed to take their complaint seriously. It was said that the police took no action against those said to have been responsible for the abuse and assaults. On 16 August 2007 Ms Mohamed lodged a complaint under s 19 of the Anti-Discrimination Act 1977 (NSW), alleging discrimination on the part of the police officers on the ground of race. The President referred the complaint to the Administrative Decisions Tribunal, which dismissed an application by the Commissioner to have the complaint summarily dismissed. Following lodgement of an appeal against that decision, an Appeal Panel of the Tribunal referred several questions of law for the opinion of the Court. The issue that arose for the Court's opinion was whether fulfilment of the duty to investigate alleged criminal offences and to prevent and detect crime, constitutes a service for the purposes of s 19 of the Anti-Discrimination Act. In answering the questions on referral, the Court stated: In relation to (i) (per Basten JA, Spigelman CJ agreeing) 1. There is no difficulty in identifying police services, for the purposes of s 19 of the Anti-Discrimination Act, by reference to the services actually provided (or refused) to a complainant or those on whose behalf he or she complains. The aggrieved persons for that purpose may be one or more individuals or a section of the community. Accordingly, there is no reason why members of a particular group of society from whom such services are withdrawn on the basis of a characteristic protected by human rights law, should not have a basis for complaint under appropriate legislation: [35]–[36]. Waters v Public Transport Corporation [1991] HCA 49; 173 CLR 349; IW v City of Perth [1997] HCA 30; 191 CLR 1; Savjani v Inland Revenue Commissioners [1981] QB 458; Farah v Commissioner of Police of the Metropolis [1998] QB 65, applied. Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; 210 CLR 1; Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745; Re Anti-Cancer Council of Victoria; Ex parte The State Public Services Federation [1992] HCA 53; 175 CLR 442; Gichura v Home Office [2008] EWCA Civ 697, considered. 2 The general law immunity that denies the existence of a duty of care owed by individual members of the Police Force to members of the public, has no application in relation to a complaint under the Anti-Discrimination Act. However one characterises such a cause of action, it does not involve the creation of a general law duty of care, and is not contingent on any consideration of legal principles or policy which underlie the existence or absence of such a duty: [46]–[48]. Tame v New South Wales [2002] HCA 35; 211 CLR 317; Sullivan v Moody [2001] HCA 59; 205 CLR 562; Australian Postal Commission v Dao (1985) 3 NSWLR 565; Commissioner of Police v Estate of Russell [2002] NSWCA 272; 55 NSWLR 232; Cran v State of New South Wales [2004] NSWCA 92; 62 NSWLR 95; Philip Morris Ltd v Ainley & Inc Nominal Defendant [1975] VR 345; Hill v Chief Constable of West Yorkshire [1989] 1 AC 53, referred to. (per Handley AJA) 3. It is not apparent why the prevention and detection of crime, and the protection of the respondents from injury and the protection of their property from damage are not services to them within s 19 of the Anti-Discrimination Act: [79], [86]. IW v City of Perth [1997] HCA 30; 191 CLR 1; Farah v Commissioner of Police of the Metropolis [1998] QB 65; Gichura v Home Office [2008] ICR 1287, applied. 4. While the initial investigation of complaints is a service to the victims, that conclusion does not necessarily follow in relation to the later stages of an investigation and the decision whether to arrest and/or prosecute the alleged perpetrators. This Court should not attempt, in the abstract, to define the boundary between the two stages: [87]–[89]. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40329/09 ADT 099016/09 SPIGELMAN CJ BASTEN JA HANDLEY AJA 23 December 2009 COMMISSIONER OF POLICE v Rehab MOHAMED Judgment 1 SPIGELMAN CJ: I agree with Basten JA. 2 BASTEN JA: In July 2007 Ms Rehab Mohamed and her family were at their home in Blacktown. They claim that they were abused and assaulted by members of a neighbouring family. Ms Mohamed rang police and two officers attended at the family home. However, the family alleges that the officers were rude to them and failed to take their complaint seriously. It appears that no action was taken against those said to have been responsible for the abuse and assaults. (No factual findings as to these circumstances have yet been made.) Procedural history 3 On 16 August 2007 Ms Mohamed lodged a complaint with the President of the Anti-Discrimination Board, on behalf of herself and members of her family, alleging discrimination on the part of the police officers, on the ground of race. The complaint has been treated as falling within s 19 of the Anti-Discrimination Act 1977 (NSW), which makes it unlawful to discriminate against another person on the ground of race in refusing to provide services or in the terms on which that person is provided with services. 4 Once a complaint has been lodged with the President of the Board, he or she is to determine whether it should be accepted or declined and, if accepted, to investigate the complaint: Anti-Discrimination Act, ss 89B and 90. 5 The President has power at any stage to decline a complaint or part thereof, for grounds specified in s 92(1), which include that the complaint is misconceived or lacking in substance or, if the conduct alleged were established, it would not disclose a contravention of a provision of the Act. 6 The President did not decline the complaint but, following an unsuccessful attempt at mediation, referred it to the Tribunal, presumably under s 93C of the Anti-Discrimination Act, although the power relied upon is not identified in the proceedings before this Court. 7 Pursuant to s 102 of the Anti-Discrimination Act, the Commissioner sought to have the complaint dismissed. On 5 March 2009, the application was refused by Deputy President Britton: Mohamed v State of New South Wales (NSW Police Force) [2009] NSWADT 51. 8 Pursuant to s 115 of the Anti-Discrimination Act and s 113 of the Administrative Decisions Tribunal Act 1997 (NSW) ("the ADT Act") the Commissioner appealed to an Appeal Panel of the Tribunal. Following lodgement of the appeal, the Commissioner requested the Panel to refer a question of law arising in the appeal to this Court for its opinion: ADT Act, s 118. 9 On 15 July 2009 an Appeal Panel of the Tribunal referred the following questions for the opinion of the Court: (1) Is the investigation of an alleged criminal offence by members of the New South Wales Police Force a "service" within the meaning of s 19 of the Anti-Discrimination Act 1977 (NSW)? (2) If so, is the investigation of an alleged criminal offence by members of the New South Wales Police Force a "service" to: (a) a person (or persons) reporting the event relating to the alleged criminal offence? (b) any other person? (3) Are services by way of the detection and prevention of crime as defined by s 6(3) of the Police Act 1990 (NSW) a "service" within the meaning of s 19 of the Anti-Discrimination Act 1977 (NSW) ? If so, to whom is that service provided? 10 The Commissioner filed a summons seeking the opinion of the Court on the questions of law referred to above and annexing to the summons a "special case" in accordance with Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), rr 6.35 and 6.36. 11 This Court has commented before on an earlier version of the rules with respect to such referrals: Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce [2008] NSWCA 140. The concern raised in that case was not that it was inappropriate for the Appeal Panel to refer questions or state a case, but that it should not be identified as the moving party in this Court: eg at [15]-[16] (Beazley JA) and [90] in my judgment (with both of which Giles JA agreed at [78]). The rules have since been amended, but they still give rise to difficulties. The special case (required by the rules) includes what is described as "the relevant factual matrix". No fact-finding exercise had been undertaken before the Tribunal, nor was this document agreed to by the respondents when the questions of law were referred. In the circumstances, the "facts" set out in the special case cannot be treated as facts which have been either found or agreed between the parties. 12 The process adopted by the Commissioner before the Tribunal was in the nature of a demurrer. For that purpose, the allegations in the complaints should be treated as having been accepted as the factual basis upon which the application was made. To the extent that it was appropriate to prepare a "special case" containing factual assertions, the assertions should have been so limited and reference to the procedural history should have been limited to the steps taken by the Commissioner to have the complaints dismissed. Where questions are referred, in circumstances where the rules require the preparation of a "special case" it is appropriate for the Tribunal to settle not only the questions, but also the special case. That is especially so in circumstances where the respondents are not represented. 13 Absent such a course, this Court is being asked to answer abstract questions of law which may have no relationship to facts as agreed or found by the Tribunal. A 'demurrer' should be treated with caution. Identifying questions of law as a preliminary issue before any such factual matters have been resolved is unlikely to be conducive to the efficient administration of justice. That is a consideration which the Tribunal should itself take into account before too readily acceding to a request from a party having all the resources of the government behind it and which is resisting a complaint lodged by an individual appearing for herself. Not only is the procedure likely to be inefficient, it may well become oppressive. 14 The matter now being before the Court, it is appropriate that the questions be considered by reference to the complaints lodged with the Tribunal. It may be assumed for present purposes that the documents referred to the Tribunal by the President were the complaints lodged by Ms Mohamed with the President (which are annexed to the special case). The first complaint included a statement of the events which gave rise to Ms Mohamed ringing the police. The statement continued: "The police arrived and they were so rude to my family. As a policing student I know that police officers should respect everyone. The police started yelling at me for translating to my mum as she doesn't speak English well. The police asked me what happened and I told them. The police said to stay inside the home so we did. Then I saw the police bringing the husband of that lady down to our home. The police told us to come down to the station and write a statement. So we did. The police gave my family a very hard time. When the police called me to write a statement the police woman gave me a very hard time on becoming a police officer. I told her what happened and so did my brother. 10 minutes later I saw the police arrest my brother and drag him into cell room. I asked the police what happened and they kept on telling me different stories. The police woman told me to go and speak to my mum and tell everyone to calm down. I did so. After that 6 police officers started yelling at my parents especially my dad." 15 The statement also asserted that the complainant's mother was extremely upset and "started going into a fit". She begged the police to call the ambulance but they merely laughed. An ambulance was eventually called, although the police gave the impression that they did not believe her mother was ill. Ms Mohamed also said that she was told by police officers to quit the Police Force as "it's going to make you look bad". She said they did not complete taking her statement. There were complaints about further incidents, and an allegation that the police had failed to obtain an apprehended violence order to protect the family. The complaint ended: "We don't know what to do, I have spoken to many people and they are not helping. The police are racist and they are helping the neighbours. They are against Muslims and Arabs. They are only defending the Australians." 16 Two weeks later, on 30 August 2007, Ms Mohamed lodged a further complaint arising from conduct of police at Blacktown Police Station on Friday, August 17. She said that the police identified her as "that girl with the family about the statements and what happened with your brother and mum" and were rude to her, laughed and ignored her. 17 In addition to factual assertions, the "special case" annexed a number of documents described as "exhibits". They included the submissions filed by the Commissioner in support of his application for summary dismissal which, together with numerous annexed judgments, constituted some 275 pages. In addition, the Commissioner annexed submissions filed in support of the application for leave to appeal to the Appeal Panel. This document ran to 224 pages. Also annexed to the "special case" were the submissions filed by the Commissioner in support of a referral of the questions of law. This document ran to 133 pages. It appears that all this material was served on the respondents because, in each case, the "special case" noted that they had filed "no submissions in reply". 18 The summons, together with the special case and the exhibits thereto were also served on the respondents. All of this material was served on the respondents in a form which ran to over 700 pages. It can only have had an intimidatory effect. The fact that the Commissioner was required by directions given by the Registrar of the Court to serve the relevant material does not excuse a failure on his part to exercise restraint in preparing the relevant material. Identifying questions of law 19 These difficulties flow through to the questions which were identified. The first question assumes that "the investigation of an alleged criminal offence" is either always, as a matter of law, a service for the purposes of s 19 of the Anti-Discrimination Act, or it is not. The term "investigation" has no specific legal meaning. It could readily be envisaged to cover a range of circumstances, some of which only may be relevant in the present case. 20 The second question envisages that the first question will be answered in the abstract without reference to the possible recipient of the services. That approach would be inconsistent with usual principles of statutory interpretation. It then seeks to distinguish the persons "reporting the event relating to the alleged criminal offence" (whatever that may mean in a particular case) from "any other person". Very little consideration is required in order to conclude that the question, thus formulated, is unlikely to provide any assistance to the Tribunal, unless answered in the context of specific circumstances. 21 The third question is also formulated in a way which prevents it being considered a pure question of law. It suffers from an additional degree of awkwardness in that it seeks, in relation to the detection and prevention of crime, to roll together the separate elements addressed in relation to investigation, in questions 1 and 2, while still treating them as separate elements. It might more appropriately have been formulated in terms along the following lines: "Can the detection and prevention of crime, as defined by s 6(3) of the Police Act 1990 (NSW) constitute a 'service' within the meaning of s 19 of the Anti-Discrimination Act ?" 22 Subject to the caveats which follow from the foregoing comments, it is desirable that this Court answer, as best it can, the questions as formulated and referred to it. Services under the Anti-Discrimination Act 23 The underlying structure of the Anti-Discrimination Act is not to prohibit all forms of discriminatory conduct, even where such conduct is antithetical to internationally recognised human rights and fundamental freedoms, but to identify specific grounds of discrimination, which are prohibited in specific areas of social activity: IW v City of Perth [1997] HCA 30; 191 CLR 1, at 14-15 (Brennan CJ and McHugh J). Generally speaking, the areas in which the prohibitions operate seek to exclude entirely private activities, not having a broader public element to them. 24 The proper construction of s 19 requires that it be read in context. That context includes the definition of "services" and the definition of "discrimination". It is convenient to start by setting out the full terms of the definition of "discrimination" in s 7: " 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 (b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race." 25 It may be seen that the statutory concept of discrimination requires a comparative exercise. The comparison is to be made between the treatment of the aggrieved person and the manner in which the perpetrator treats or would treat a person of a different race or not having the characteristics that appertain generally to persons of the aggrieved person's race or are generally imputed to such persons. (Similar definitions may be found in relation to other grounds, such as sex (s 24) and marital or domestic status (s 39).) 26 One significant factor which arises from the form of the definition of discrimination is that it is likely to involve a comparison of apples and oranges. Contrary to the popular aphorism, there is nothing inappropriate in that, both being fruit. What will be required of the Tribunal is to compare evidence of what actually happened in relation to the complainant and her family with hypothetical circumstances which may be based on little more than an abstract understanding of appropriate conduct of police in similar circumstances which involved, for example, two Caucasian families. 27 Section 19 of the Anti-Discrimination Act reads: " 19 Provision of goods and services It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which the other person is provided with those goods or services." 28 As appears from the definition of discrimination on the ground of race in s 7(1) of the Anti-Discrimination Act, each prohibition envisages that there will be at least two parties, one person, being the person who discriminates, is referred to in that provision as "the perpetrator", while the person against whom discrimination is directed is described as "the aggrieved person". Paragraph (a) in s 19 should be understood as if the word "other" were inserted before the word "person" as occurs in paragraph (b), being in each case the aggrieved person. 29 In order to understand the operation of the provision, it is necessary to have regard to the definition of "services", which is to be found in s 4(1) of the Anti-Discrimination Act, in the following terms: " services includes: (a) services relating to banking, insurance and the provision of grants, loans, credit or finance, (b) services relating to entertainment, recreation or refreshment, (c) services relating to transport or travel, (d) services of any profession or trade, (e) services provided by a council or public authority, (f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not." 30 The definition is inclusive (and not exclusive) and operates by way of description rather than precise identification of the content of the term "services". Taken in the abstract, there is no reason to suppose that the police force does not, at least in some of its functions, provide services. Indeed, for much of its recent history, the New South Wales Police Force has been known as the New South Wales Police Service. 31 Section 6 of the Police Act 1990 deals with the "mission" and functions of the New South Wales Police Force, stating in part: " 6 Mission and functions of NSW Police Force (1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear. (2) The NSW Police Force has the following functions: (a) to provide police services for New South Wales, …. (3) In this section: police services includes: (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, and (c) the provision of essential services in emergencies, and (d) any other service prescribed by the regulations. … (6) Nothing in this section confers on the NSW Police Force a power to provide a police service in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002 ." 32 The term "services" is not otherwise defined in the Police Act. There is no suggestion that, in referring to particular kinds of services, s 6(3) is using the term in any way other than its ordinary meaning. Because, as will be seen below, the term "services" is also used in the Anti-Discrimination Act in its ordinary, undefined sense, it would be necessary to find either by way of textual analysis or on the basis of some other principle of statutory construction, a reason for not according the term the same meaning in each Act, so far as is relevant to that Act. 33 The application of the definition was posited on the fact that the Commissioner of Police (and police officers) constituted a public authority. The term "public authority" is not defined in the Anti-Discrimination Act. However, in Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745 at [41]-[43] Sully J held that the Police Service of New South Wales was a public authority, referring to the Police Service Act 1990 (NSW) (as it was then entitled), ss 6 and 7 and the discussion of a public authority in Re Anti-Cancer Council of Victoria; Ex parte The State Public Services Federation [1992] HCA 53; 175 CLR 442 at 450-451 (Mason CJ, Brennan and Gaudron JJ), referring in turn to the remarks of Rich J in Renmark Hotel Inc v Federal Commissioner of Taxation [1949] HCA 7; 79 CLR 10 at 18. That conclusion should be accepted. 34 Despite the division of questions 1 and 2, the thrust of the Commissioner's argument must be that the Police Force is part of what might generically be described as "the public service", which should be understood as providing services to the public, rather than to individuals. That is an argument which may well appear to have greater force when viewed in the abstract than when viewed in a specific context involving conduct complained of by particular persons. A similar issue was discussed in Waters v Public Transport Corporation [1991] HCA 49; 173 CLR 349 by McHugh J by reference to the Equal Opportunity Act 1984 (Vic) which was, for relevant purposes, similar both in terms of its definition of "services" and in its operative provisions, to the provisions of the Anti-Discrimination Act. The case involved a complaint by people with disabilities who found it difficult to use the ticketing system provided on the Corporation's buses in Melbourne. McHugh J stated at 404, in terms apposite to the present case: "The term 'services' is defined in s 4(1) to include services connected with transportation. The Board made no express finding as to what services were provided by the Corporation. The Board appears, however, to have acted on the basis that the services provided were that of 'the public transport system'. Phillips J. said that the identification of the 'services' which were provided was essentially a question of fact for the Board. I cannot accept, however, that the Board's identification of the relevant services in this case was open to it as a matter of law. It is true that the identification of the relevant services is a question of fact. But the hypothesis upon which s 29 operates is that there exists a person who provides goods or services and that that person has discriminated against the complainant in one of the ways set out in s 29(1)(a) and (b). Accordingly, the goods or services which must be identified are those goods or services which are relevant to the complainant or any person or persons whom the complainant represents. Before there can be a finding of discrimination by a person in relation to the provision of goods or services, therefore, the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination. If a person is alleged to have refused to perform services, eg, the services in question must be identified in sufficiently concrete terms to enable the Board to determine whether or not there has been a refusal to perform those services. What is a sufficiently precise identification of the service in one case may be too general in another. If the discrimination alleged was the refusal to allow impaired persons to travel on trams to St Kilda, it would be meaningless to identify the service provided as 'the public transport system'. If, however, the discrimination alleged was the refusal to allow impaired persons to travel on trams generally, 'transportation of members of the public by trams' might identify the service with sufficient precision to enable the relevant issues to be resolved. On the other hand, if it was alleged that the physically impaired were discriminated against because they were not given sufficient time to become seated on trams, the relevant description of the service might not be sufficiently precise unless a description of the trams was incorporated into a description of the services. Likewise, if a person is alleged to have imposed on another person a 'requirement or condition' in respect of using services, the services provided must be identified with sufficient precision to enable the Board to relate the requirement or condition to those services …." 35 It follows that there is no difficulty in identifying police services, for the purposes of s 19 of the Anti-Discrimination Act, by reference to the services actually provided (or refused) to the complainant or those on whose behalf she complains. The aggrieved persons for that purpose may be one or more individuals or a section of the community. 36 There is nothing surprising about the proposition that the police owe individual members of the community a duty to exercise their powers and carry out their functions on a non-discriminatory basis. Such a duty is recognised in international law, which may uphold a claim for refugee status on the part of a person denied protection from violence on the basis of a protected characteristic, in his or her country of nationality: see Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; 210 CLR 1. Indeed, the fact that an authority is required to provide a public service implies that the service is to be provided without discrimination across all sectors of the community. To withdraw such a service from a particular group on the basis of a characteristic protected under human rights law is not to default on any obligation to the public at large, but in relation to members of that group. There is no reason why members who suffer individually as a result of such conduct should not have a basis for complaint under appropriate legislation, including the Anti-Discrimination Act. 37 This approach obtains support from the judgments of the High Court in IW. That case involved a challenge to a decision of the City of Perth Council resolving to refuse an application for planning approval of a daytime "drop-in" centre for persons infected by HIV or with AIDS. The complaint was based on a finding that a number of councillors voted to refuse the application on the basis of what was described as "the AIDS factor". That, it was contended, constituted refusal of a service on the basis of the impairment of those for whom the service was intended. 38 In discussing the scope of the definition of "services" in the Equal Opportunity Act 1984 (WA), which was in similar terms to the definition in the Anti-Discrimination Act, Brennan CJ and McHugh J stated at 11: "The term 'services' has a wide meaning. The Macquarie Dictionary relevantly defines it to include 'an act of helpful activity'; 'the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance'; 'the organised system of apparatus, appliances, employees, etc., for supplying some accommodation required by the public'; 'the supplying or the supplier of water, gas, or the like to the public'; and 'the duty or work of public servants'." 39 Their Honours concluded that the definition was not capable of including a refusal to exercise a power under planning legislation (at 11) but accepted (at 13) English authority holding that there had been a provision of services "in carrying out a statutory duty to determine whether a taxpayer was entitled to a deduction for a dependent child and in disseminating and giving advice to taxpayers to enable them to claim that tax relief": Savjani v Inland Revenue Commissioners [1981] QB 458. Their Honours also cited (at 14) with approval the decision in Farah v Commissioner of Police of the Metropolis [1998] QB 65 in which the English Court of Appeal held that "those duties of a police officer that involve assistance to or protection of the public constitute 'services to the public' for the purposes of the Race Relations Act 1976 (UK)". 40 In IW, Dawson and Gaudron JJ also accepted that the term "services" was a word of "complete generality" and "should not be given a narrow construction unless that is clearly required by definition or by context": at 23. Their Honours noted that the definition, which was in similar terms to that in the Anti-Discrimination Act, "is to be taken as signifying everything which falls within [the ordinary notion of 'services']". Their Honours also referred with approval to Farah, as did Toohey J at 29, Gummow J at 44 and Kirby J at 74. 41 The facts of Farah bear some resemblance to the circumstances of the present case. Ms Farah pleaded that she was a Somali refugee, then aged 17, who, with her 10 year old cousin, was attacked near their home by white teenagers who set a dog on her and injured her. She summoned the police, "but the police officers who came in response, instead of helping her and seeking to detain her attackers, arrested her without cause, detained her for a time, and charged her with affray, common assault and causing unnecessary suffering to a dog": at 69A-B. The case involved a claim for damages against the Commissioner of Police and included an allegation that the conduct of the officers involved discrimination on the ground of race. The Commissioner sought, unsuccessfully, to strike out the allegation concerning discrimination. Otton LJ, in rejecting a submission by the Commissioner that the police should be immune from the operation of the Race Relations Act, sought to draw a distinction between those acts of assistance and protection which might be done by a private person and acts which would never be done by a private person, because they involved "a person holding statutory office in the course of formulating or carrying out government policy". His Honour held that the pleading "that officers failed to react to the plaintiff's emergency telephone call, to investigate her account at the scene, and to afford her protection – all on account of her colour" fell within the former category: at 84G-H. 42 More recently, in Gichura v Home Office [2008] EWCA Civ 697 the English Court of Appeal accepted that a Kenyan citizen, held in immigration detention in the UK might bring a complaint under the Disability Discrimination Act 1995 (UK) in relation to the circumstances of his detention, whilst awaiting repatriation to Kenya. Again, the distinction was drawn between those circumstances in which the authorities were exercising a governmental function, by deciding whether he was entitled to asylum in the UK and if not, whether he should be detained, on the one hand and, on the other, the circumstances of his detention. The claim in respect of the latter was allowed to proceed. 43 The decision in Gichura is consistent with the decision of Sully J in Commissioner of Police v Estate of Russell. Edward John Russell had been arrested by police and taken into police custody. He had complained that in arresting and detaining him police officers had discriminated on the grounds of his race, he being an Aboriginal man. The complaints were considered and upheld by the Equal Opportunity Division of the Tribunal and the Commissioner appealed against that decision to the Appeal Panel. The Appeal Panel referred several questions of law to the Supreme Court for its determination including the following: "(ii) whether the conduct of the individual respondent constables in the course of their pursuance and arrest of Mr Russell amounted to the provision of a 'service' within the meaning of section 19 of the Anti-Discrimination Act …." 44 In answering that question, his Honour concluded at [44]: "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 "' [4] All of the police officers mentioned in [3] above wholly failed, on the facts as found by the Equal Opportunity Division, to provide the services which they were bound to provide to Mr Russell pursuant to section 6(3)(b). [5] To say that what the individual police officers did, or suffered to be done, to the late Mr Russell amounted to the provision by them to him of police services, but on a basis discriminatory in the sense contemplated by section 19(b), seems to me to be a wholly artificial perception, given the facts found by the Equal Opportunity Division. The police officers involved did not, in my opinion, provide imperfectly to the late Mr Russell the services which they were duty bound to provide to him. They did not provide those services at all." 45 The case of Russell went on appeal to this Court, but that issue was not further agitated: Commissioner of Police v Estate of Russell [2002] NSWCA 272; 55 NSWLR 232. The reasoning of Sully J, however, demonstrates the assistance which may be obtained by answering questions referable to specific findings of fact. There may be a real difficulty in identifying, in particular factual circumstances, the limits of the concept of "services" in relation to the exercise by police of their functions, both under the general law and under statute. Absent findings as to such circumstances, it would be doubtful whether this Court should reconsider the line of authority referred to above, which appears to be inconsistent with the submissions sought to be made for the Commissioner. In any event, that line of authority includes the approval of Farah by the High Court in IW. 46 The Commissioner's submissions did not squarely confront these difficulties. Rather, they sought to avoid them by raising a different form of argument, namely that an action under the Anti-Discrimination Act was in substance an action in tort and was therefore subject to the form of immunity which denies that individual members of a police force "in the course of carrying out their functions of controlling and keeping down the incidence of crime, owe a duty of care to individual members of the public who may suffer injury to person or property through the activities of criminals, such as to result in liability in damages, on the ground of negligence, to anyone who suffers such injury by reason of breach of that duty": Hill v Chief Constable of West Yorkshire [1989] AC 53 at 59 (Lord Keith of Kinkel). As the Commissioner noted, that principle had been applied by the High Court in Tame v New South Wales [2002] HCA 35; 211 CLR 317, to deny the existence of a duty of care on the part of an officer for nervous shock suffered by Mrs Tame when reading an inaccurate police accident report asserting that she had a blood alcohol reading of 0.14 at the time of the accident. As the Commissioner further noted, a similar principle had been applied with respect to social workers and medical practitioners investigating allegations of sexual abuse of children: Sullivan v Moody [2001] HCA 59; 205 CLR 562. Those principles had been applied also in this Court: Cran v State of New South Wales [2004] NSWCA 92; 62 NSWLR 95. 47 The principle is not to be denied; what is in issue is its application in the present circumstances. First, the submission that a complaint under the Anti-Discrimination Act gives rise to an action in tort is of limited assistance. In Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 604-605 McHugh JA described an action under the Anti-Discrimination Act as "an action in tort", but in a context in which he was considering the operation of s 64 of the Judiciary Act 1903 (Cth) in rendering a Commonwealth authority liable to suit under the Anti-Discrimination Act. That description, as noted by Spigelman CJ in Russell, was adopted from the judgment of Lee J in Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at 65: see Russell at [55]. In considering the application of the Law Reform (Vicarious Liability) Act 1983 (NSW) to a cause of action under the Anti-Discrimination Act, the Chief Justice said "it is not accurate to describe proceedings by way of complaint before a tribunal as a 'right of action'": at [71]. Rather, his Honour preferred the reasoning of Menhennitt J in Philip Morris Ltd v Ainley & Inc Nominal Defendant [1975] VR 345 at 349 that "an action of tort is one in which the remedy is a common law cause of action although the right being enforced in the action may be a right created by either the common law or statute: at [72]. 48 However one characterises the cause of action under the Anti-Discrimination Act, it does not involve the creation of a general law duty of care, of the kind discussed in Hill, Tame and Sullivan. Nor does it give rise to the kind of policy questions which affect the scope of such a duty. Rather, its scope is to be identified as a matter of statutory interpretation. If the Parliament seeks to subject the Police Force to statutory prohibitions, with civil remedies for breach, the courts must apply the statute, which is not in any sense contingent upon the existence of a general law duty of care, nor on matters of legal principle which underlie the existence or absence of such a duty. Accordingly, submissions based on these authorities should be rejected. Conclusions 49 The questions referred to this Court arose in circumstances where the Commissioner had sought to strike out the complaints of the respondent on the grounds that they were misconceived or, even if the conduct alleged were established, would not disclose a contravention of the Anti-Discrimination Act. On that basis, the questions may properly be answered as follows: Q1: Is the investigation of an alleged criminal offence by members of the New South Wales Police Force a "service" within the meaning of s 19 of the Anti-Discrimination Act 1977 (NSW)? A: Conduct of police officers with respect to a request for assistance in relation to possible criminal activity, where protection of persons or property may be required, can involve the refusal or provision of "services" for the purposes of s 19 of the Anti-Discrimination Act . Q2: If so, is the investigation of an alleged criminal offence by members of the New South Wales Police Force a "service" to: (a) a person (or persons) reporting the event relating to the alleged criminal offence? (b) any other person? A: The aggrieved person, as described in s 7(1) and the other person, as described in s 19, will be the person or persons who are treated less favourably or required to comply with a requirement or condition, as described in s 7(1), in relation to the provision or refusal to provide the services and need not be limited to the person or persons reporting an event relating to an alleged criminal offence. Q3: Are services by way of the detection and prevention of crime as defined by s 6(3) of the Police Act 1990 (NSW) a "service" within the meaning of s 19 of the Anti-Discrimination Act 1977 (NSW) ? If so, to whom is that service provided? A: (a) The detection and prevention of crime can constitute "services" for the purposes of s 19 of the Anti-Discrimination Act , and (b) the answer to question 2 is repeated. 50 In his summons, the Commissioner sought an order that each party pay his or her own costs of the proceedings. The Commissioner has been unsuccessful in obtaining the answers for which he contended in this Court. He would ordinarily be required to pay the costs of the proceedings. The basis upon which such costs might have been assessed would have been considered in part by reference to the circumstances set out in [17]-[18] above. However, the respondents were not represented, but Ms Mohamed's sister appeared, with her mother, at the hearing. To the extent that she has incurred costs in this Court, which may be recoverable by a litigant in person, the Commissioner should pay those costs. 51 HANDLEY AJA: On 9 September 2009 an Appeal Panel of the Administrative Decisions Tribunal (the Tribunal) stated a case and referred questions of law for determination by the Supreme Court pursuant to s 118 of the Administrative Decisions Tribunal Act (the 1997 Act) 52 The questions arose from complaints of racial discrimination against the Commissioner of Police based on acts and omissions of police officers attached to Blacktown Local Area Command. 53 The first complaint was lodged with the Anti-Discrimination Board (the Board) by the first respondent on her own behalf and on behalf of her parents on 16 August 2007. It was based on alleged conduct of police officers in dealing with a neighbourhood dispute between the respondents and some of their Caucasian Australian neighbours. The respondents alleged that rocks were thrown at their house, the glass on their front door was smashed, and that they were subjected to physical and verbal abuse. 54 The first respondent telephoned Blacktown Police Station and police arrived at the scene. 55 The first complaint alleged that the police did not properly investigate the respondents' claims about their neighbours and did not take appropriate action to prevent further attacks. 56 The second complaint lodged on 3 September 2007 by the first respondent was based on alleged conduct by a police officer at Blacktown Station on 17 August when she enquired about another case. 57 The complaints alleged that police officers had discriminated against the respondents on the ground of their race within s 19 of the Anti-Discrimination Act 1977 (the 1977 Act) by refusing to provide them with services, or in the terms on which they provided services. 58 The respondents' complaints of racial discrimination were later the subject of an internal investigation within the Police Force which concluded that they were not justified. 59 In April 2008 the President referred the complaints to the Tribunal. On 25 November 2008 the Commissioner applied pursuant to s 102 of the 1977 Act for their summary dismissal. 60 The 1977 Act did not require the respondents to define the services with any precision but after a case conference they were identified by staff at the Tribunal as services in the prevention and detection of crime and the investigation and prosecution of complaints about police conduct, and this description was accepted by the respondents and was later adopted by Britton DP. 61 The summary dismissal application was dealt with on the papers by Britton DP and dismissed on 5 March 2009. 62 On 1 April the Commissioner applied under s 113(2A) of the 1997 Act for leave to appeal to an Appeal Panel from this interlocutory decision. The application was served on the respondents. 63 On 8 May, following an ex parte hearing on that date, Hennessy DP granted leave to appeal. The Commissioner then applied under s 118 of the 1997 Act for questions of law to be referred to the Supreme Court. Notice of this application was given to the respondents. 64 On 15 July the Commissioner's application was heard ex parte by an Appeal Panel and granted. The following questions of law were then referred by stated case to the Supreme Court: "1. Is the investigation of an alleged criminal offence by members of the New South Wales Police Force a 'service' within the meaning of s 19 of the Anti-Discrimination Act 1977 (NSW)? 2. If so, is the investigation of an alleged criminal offence by members of the New South Wales Police Force a 'service' to: (a) a person (or persons) reporting the event relating to the alleged criminal offence? (b) any other person? 3. Are services by way of the detection and prevention of crime as defined by s 6 (3) of the Police Act [1990] (NSW) a 'service' within the meaning of s 19 of the Anti-Discrimination Act 1977 (NSW). If so, to whom is that service provider? 65 Section 48 (1)(viii) and (2)(h) of the Supreme Court Act assign proceedings on a case stated by an Appeal Panel to the Court of Appeal. 66 The Commissioner was represented in this Court by Mr Paul Menzies QC and Mr M Hutchings, and two of the respondents appeared in person without having filed any written submissions. 67 The written submissions of the Commissioner argued his case on two broad grounds, the construction of the relevant legislation, and the common law immunity of the Police Force and its officers established by Hill v Chief Constable of West Yorkshire [1989] AC 53 and later decisions. 68 At the start of the oral hearing Mr Menzies abandoned any reliance on the common law immunity and acknowledged that the answers to the questions turned on the construction of the relevant provisions of the 1977 Act and the Police Act 1990 (the 1990 Act). There is no reason to doubt the correctness of this concession. 69 Section 7 (1)(a) of the 1977 Act relevantly defines discrimination on the ground of race as including: "(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 … 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 …". 70 Section 19 relevantly provides: "It is unlawful for a person who provides (whether or not for payment) … services to discriminate against another person on the ground of race: (a) by refusing to provide the person with those … services, or (b) in the terms on which the other person is provided with those … services". 71 Services is defined in s 4 (1)(e) as including "services provided by a … public authority". It was accepted that the Commissioner was a public authority. 72 The Act binds the Crown: 73 Section 53(1), read with s 4B(1)(b), makes the Commissioner prima facie responsible for acts of police officers which contravene the 1977 Act. 74 The functions of the NSW Police Force are defined in s 6 (2) of the 1990 Act: "The NSW Police Force has the following functions: (a) to provide police services for New South Wales, (b) … (c) to do anything necessary for, or incidental to, the exercise of its functions." 75 Section 6(3) defines police services as including: "(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, and (c) … (d) any other service prescribed by the regulations." 76 Section 208(1)(a) entitles the Commissioner to demand payment when a member of the NSW Police Force: "(a) attends a sporting or entertainment event, at the request of the person conducting or organising that event, for the purpose of maintaining order … " 77 Section 208(2) and (3) enable regulations to be made requiring payment for other police services. 78 If the maintenance of order by Police at a sporting or entertainment event is a service to the organisers it is not apparent why the maintenance of order in a neighbourhood is not a service to those affected by the disorder. 79 Nor is it apparent why the prevention and detection of crime, and the protection of the respondents from injury and the protection of their property from damage which are services within s 6 (3) of the 1990 Act are not services to them within s 19 of the 1977 Act. 80 The application to a Police Force of the proscription of discrimination in the provision of services by the Race Relations Act 1976 (UK) arose in Farah v Commissioner of Police of the Metropolis [1998] QB 65 CA. The definition of discrimination in s 1 (1)(a) of the UK Act ("treat less favourably") is comparable with that in s 7 of the 1977 Act. The section in the UK Act (s 20) proscribing discrimination in the provision of services is comparable with s 19 of the 1977 Act ("refusing to provide", and "on the like terms"). The UK Act also applies (s 20(2)) to the provision of services by a "public authority". 81 In Farah's case the plaintiff, a Somali refugee, claimed that she had been attacked by white youths who had set a dog on her and injured her. However when she summoned the police they had arrested her without cause. The relevant question for present purposes was whether the appellant's complaint that the police had discriminated against her in the provision of services fell within the UK Act. 82 The Court held unanimously that police officers provided services to the public within the UK Act. Hutchison LJ said at 78: "In my view … prima facie, section 20 is wide enough to apply to at least some of the acts undertaken by police officers in the performance of the duties of their office. The crucial words … are 'any person concerned with the provision (for payment or not) of … services to the public'. … [T]hese words are entirely apt to cover those parts of a police officer's duties involving assistance to or protection of members of the public … It is in regard to that aspect of the officers' duties that the claim in the present case is advanced; it is not suggested that pursuing and arresting or charging alleged criminals is the provision of a service. What is said is 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 afforded … [T]here is no reason why a person performing a public duty may not also be providing a service". 83 Otton LJ said at 83: "I should be slow to find that the effect of something which is humiliatingly discriminatory in racial matters falls outside the ambit of the Act. I accept that … police officers perform duties in order to prevent and detect crime and to bring offenders to justice. They are also vested with powers to enable them to perform those duties. While performing duties and exercising powers they also provide services in providing protection to the victims of crime of violence." 84 Peter Gibson LJ agreed with both judgments. 85 Farah was followed by the Court of Appeal in Gichura v Home Office [2008] ICR 1287, 1293-4. It was also unanimously approved in IW v City of Perth [1997] HCA 30; 191 CLR 1 at 14, 23, 29, 44, 74. 86 This Court should apply those decisions. 87 While the initial investigation of complaints of violence and the protection of the victims of violence provide services to the victims that does not mean that the later stages of an investigation and decisions whether or not to prosecute or arrest the alleged perpetrators are also services to them within s 19 of the 1977 Act. 88 This Court should not attempt, in the abstract, to define the boundary between the initial stages of a police investigation into alleged criminal conduct which is within the 1977 Act, and later stages and the decision whether not to arrest or prosecute the alleged offender which generally are not. 89 Such a decision is necessarily fact specific and should only be made after the relevant facts have been fully found. 90 This does not mean that a general policy or practice of not prosecuting alleged offenders of a particular race or for particular crimes or classes of crime such as so called honour killings might not be discrimination in the provision of services within s 19. Again such a decision could only be made after a full investigation of the facts. 91 In my judgment the questions referred should be answered as follows: "Q1. Is the investigation of an alleged criminal offence by members of the New South Wales Police Force a 'service' within the meaning of s 19 of the Anti-Discrimination Act 1977 (NSW)? Answer: Yes, at least in its initial stages. Q2. If so, is the investigation of an alleged criminal offence by members of the New South Wales police force a 'service' to: (a) a person (or persons) reporting the event relating to the alleged criminal offence? (b) any other person? Answer:(a) Yes provided the person or persons reporting the event claimed to be victims of the alleged criminal offence, at least in the initial stages of any such investigation. Answer:(b) Does not arise. Q3. Are services by way of the detection and prevention of crime as defined by s 6 (3) of the Police Act 1990 (NSW) a 'service' within the meaning of s 19 of the Anti-Discrimination Act 1977 (NSW). If so to whom is that service provided? Answer: Does not arise. 92 The respondents may have incurred out-of-pocket expenses and the Commissioner should be ordered to pay their costs as unrepresented litigants. ********** 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.