The Applicant seeks leave pursuant to s 96(1) of the Anti-Discrimination Act 1977 (the Act) for his complaint of age discrimination in the provision of goods and services to be heard by the Tribunal. On 23 January 2020 Anti-Discrimination New South Wales (ADNSW) received a complaint from Gordon Crisp (the Applicant), a now 86 year old man with severe diabetes who is resident in an old-age home. The Applicant's complaint is essentially that the police have treated him less favourably than they would other persons in the same or similar circumstances, because of his age. The conduct that he specifically complained about is in relation to a complaint that he made to police, regarding an alleged assault which took place on 23 November 2023 at a meeting of the Bathurst Regional Council in front of at least 50 people.
The Applicant claims that Police did not investigate the complaint appropriately or at all, and have dismissed the investigation without conducting inquiries of any other persons, or of the hospital to which he was taken for treatment as a result of the assault and where he remained for 13 days.
The Applicant also alleged that in his dealings with police following the making of the complaint he was treated less favourably, in that he did not receive a fully completed victims card with an event number. The Applicant alleges that the Commissioner of Police lied to ADNSW in relation to this, stating that he had received a completed victims card, and additionally lied by stating to ADNSW that he had nominated contact by mobile phone, when he did not and had never owned a mobile phone previously, and could not use one.
Additionally, the Applicant alleged that he had reported to the Police that the Council had extorted him and his wife of $5600 in relation to some strata management fees and the Police had failed to investigate that complaint appropriately or at all.
The Applicant stated that the Police had not used their normal procedures in dealing with him and were not making their normal inquiries in relation to his complaints, and the only logical and rational reason for this was because he was aged, and they therefore assumed that he was "mentally affected" and "they are waiting for me to die".
The Respondent denied the discrimination. The Respondent stated to ADNSW that the investigation of an alleged crime is not conduct that amounts to the provision of a service to the Applicant. Rather, to the extent that a service was being provided, it was being provided to the community at large pursuant to s 6(3) of the Police Service Act 1990. There were no goods or services being provided to the Applicant within the meaning of the Act and there was therefore no refusal to provide goods or services, or provision of goods or services on less favourable terms. The Respondent also denied that any conduct was done on the basis of the Applicant's age.
The President's delegate at ADNSW considered all the information received from both parties and decided to decline the Applicant's complaint under section 92(1)(a)(i) of the Act because she was of the opinion the complaint was lacking in substance, stating that in relation to the failure to provide an incident number that:
..even if the provision of an incident number is a good or service and the respondent failed to provide this to the complainant on 2 December 2023, the complainant provides no information to support an allegation that the failure to provide the incident number was on grounds of his age.
The complaint was referred to this Tribunal on 27 May 2024. The matter was before me on 26 June 2024 for a hearing on the question of whether leave should be granted pursuant to s96(1) of the Act. The Applicant appeared via telephone and the Respondent's solicitor appeared via audio-visual link.
At hearing I explained to the Applicant the nature of a leave hearing and what was required of an application under s 96 of the Act. I explained to him that his complaint fell within the age discrimination provisions of the Act, specifically sections 49YZA and 49YZN of the Act. I explained that he would need to demonstrate to the Tribunal that it was just and fair for leave to be granted in his particular circumstances. I explained that the Tribunal would accept the evidence he provided to the Tribunal at its highest for the purpose of determining whether leave ought to be granted. The Applicant relied on his complaint to ADNSW, some hand-written letters he had provided to ADNSW and the Tribunal, and he provided the Tribunal with oral submissions.
The Tribunal has power to grant, or to refuse to grant, leave for a complaint accepted for investigation by the President and referred to the Tribunal under s 93A of the Act: s 96(1) of the Act.
A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [25] ("Ekermawi"). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].
The applicant's evidence must be taken at its highest, that is, everything the applicant has put in evidence is accepted as true and then the Tribunal determines whether he could possibly succeed in his complaint of age discrimination: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35].
Part 4G of the Act addresses age discrimination. As clarified by the Applicant at the hearing, his complaint concerns direct age discrimination in the provision of goods and services, pursuant to ss 49ZYA(1) and s49ZYN of the Act. Pursuant to s 49ZYA(1) direct age discrimination occurs when a perpetrator treats someone less favourably than they would treat other persons in the same or similar circumstances, on the basis of their age or age group. Where that direct age discrimination has the effect of refusing to provide someone with goods or services, or in the terms on which a person is provided with goods or services, it becomes unlawful pursuant to s 49ZYN. This was explained to the Applicant.
To prove direct age discrimination, if the complaint were to proceed, the Applicant would have to prove that:
1. the Respondent is a person who provides goods or services;
2. the respondent refused to provide him with goods or services or provided him with goods or services on less favourable terms;
3. by doing so, the respondent treated him less favourably than it treated or would have treated a person not of his age or age group, in the same or similar circumstances (differential treatment);
4. one of the reasons for that treatment was his age.
The onus is on the Applicant to demonstrate how it would be "fair and just" for his complaint to proceed, in circumstances where ADNSW has determined it was lacking in substance.
Where a Respondent is performing a governmental function or statutory duty, depending upon the way in which the relevant "services" are identified, the persons affected may have no ability to decide whether to accept or reject what is done or the outcome, and the Respondent may therefore not be providing "services" within the meaning of the Act: State of New South Wales v Whiteoak [2014] NSWCATAP 99 at [158]. In Robinson v Commissioner of Police, NSW Police Force [2013] FCA 770 it was held that "services" to a person covers activities which are helpful and beneficial to that person; therefore dealing with a person's bail application did not involve the provision of "services".
The Tribunal explained to the Applicant how differential treatment was demonstrated by the evidence of a comparator, either real or hypothetical. The Applicant believes that he has been treated less favourably or differently by the Police than other persons would have been treated, but there is no evidence or identification of a comparator to support this belief. Whilst the Respondent has a general statutory function to investigate crime, there is no evidence in these proceedings of how the Respondent decides which crimes to investigate, what is required to commence an investigation, how the Respondent conducts investigations and what is considered an appropriate or sufficient level of investigation for specific allegations or complaints.
Putting aside the question of whether the Respondent was providing the Applicant with "goods and services" by receiving his complaints or by issuing him with a victim card, there is no evidence of differential treatment. Even if the Tribunal were to accept that there was differential treatment of the Applicant, there is no direct evidence that such differential treatment was on the ground of the Applicant's age or age group.
As there is no direct evidence of causation on the ground of age, a causal link between the Applicant's age or age group and the alleged treatment would have to be established by inference from the available facts. Any such inference must be logical and reasonable and must show that a connection is probable. An inference cannot be made where more probable and innocent explanations are available on the evidence: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]).
Any findings on causation would have to be made by the Tribunal by drawing an inference from available evidence and the relevant circumstances. This was explained to the Applicant, who expressed his view that the only other possible reason for the Respondent's failure to investigate his complaints properly, other than his age, was because they thought he was "a terrible person" (or words to that effect). However, this is not the only other logical or reasonable explanation available to the Tribunal. The Respondent's decision not to investigate a complaint, or not to continue to investigate a complaint, could be reliant on many factors entirely irrelevant to the individual making a complaint, their character, age or any other attribute. There could be evidentiary issues, public policy reasons, funding limitations, availability of investigators - all potential reasons which have nothing to do with the Applicant or any other individual making a complaint or alleging a crime has been committed.
I note that the Respondent has not provided ADNSW or the Tribunal with any explanations for the conduct alleged to have occurred. The Respondent admitted during the hearing that the Applicant was supplied with a victim card which did not identify the investigation/ COPS numbers victim card, contrary to the information provided to ADNSW. The Respondent submitted that the complaints raised by the Applicant were in the nature of "procedural issues", there was no failure to investigate, and that the Applicant complaint had "limited prospects".
There is an absence of any facts or alleged facts from which the Tribunal could make a reasonable and logical inference that one of the reasons for the alleged conduct was because of the Applicant's age. Even if the Tribunal were to accept that the Applicant's treatment by the Respondent was unsatisfactory, there is no identification of a comparator and no specific evidence of differential treatment. There is also a significant issue as to whether the Respondent was providing the Applicant with "goods and services" within the meaning of the Act. Whilst I don't consider the complaint is entirely misconceived or lacking in substance, on the basis that it is reasonably arguable, I agree with the Respondent that the Applicant's complaint has limited prospects because of the unlikelihood that the Applicant would be able to obtain sufficient evidence to persuade the Tribunal to draw the relevant inferences in the circumstances.
The Applicant expressed an intention to make a complaint about his alleged mistreatment by the Respondent and the Respondent's failure to investigate his complaints to the Law Enforcement Conduct Commission. The Applicant is also able to engage the Respondent's internal complaints process and the NSW Ombudsman's office in relation to his complaints about Police conduct. In my view declining leave under the Act will not restrict the Applicant from pursuing his complaint in other forums that are more suitable. In circumstances where the complaint has limited prospects, in my view it would not be fair or just for the Tribunal to grant leave in the circumstances.
Leave is therefore refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW).
[2]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 01 July 2024