respondent. Leave to proceed with the complaint of disability discrimination is refused (order made 23 September 2020).
Key principles
The Tribunal has discretion under s 96 of the Anti-Discrimination Act 1977 (NSW) to grant or refuse leave where a complaint has been referred under s 93A; that discretion must be...
An allegation that police refused to provide services must identify with precision the service alleged to have been refused and whether that service is one the police provide;...
The NSW Police Force does not have a function to provide legal assistance; the Charter of Victims Rights does not, of itself, compel police to provide legal assistance in all...
A mere referral to mental health services, where supported by evidence of duty of care and other factual indicators, does not necessarily permit an inference that refusal to...
Issues before the court
Whether the NSW Police Force's refusal to investigate or to provide legal assistance to the applicant constitutes a refusal to provide 'services'...
Whether a referral by police to mental health services supports an inference that the police refused services because they presumed the applicant...
Plain English Summary
Mr Derrick complained that NSW Police refused to investigate historic banking offences and to provide legal assistance, because they assumed he had a mental illness; the Anti-Discrimination Board declined the complaint and he sought referral to the Tribunal. The Tribunal accepted that investigating allegations can in some cases be a 'service' under the Anti-Discrimination Act, but found legal assistance is not a function of police, and that referral to mental health services did not prove the refusal was because of a presumed disability. The Tribunal also noted the Department of Communities and Justice had already dealt with the Charter-based complaint. For these reasons the Tribunal refused leave to proceed under s 96.
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Deep Dive
1,956 words · generated 12/08/2026
What happened
The applicant, Mr Oliver Derrick, lodged a complaint with the Anti-Discrimination Board (the President) alleging that NSW Police had discriminated against him on the ground of a presumed disability (mental illness) by refusing to provide services on 5 March and 2 September 2019. The services he wanted were investigative action into alleged historic banking misconduct and what he termed 'legal assistance' to pursue claims against a bank (Background [1]–[3]; The nature of the complaint).
Whether obligations in the Charter of Victims Rights require the NSW Police to provide legal assistance and thus engage s 49M when police decline to...
Whether the complaint should be refused leave because the subject matter has been dealt with by another body or because the complaint is lacking in...
Cited legislation
4 cited instruments linked from this judgment.
The President declined the complaint on 26 May 2020 on the basis that it was lacking in substance and that the subject matter had been dealt with by another body (Department of Communities and Justice, Victims Services). The applicant requested referral to the Tribunal under s 93A of the Anti-Discrimination Act 1977 (Background [1]–[3]).
The Tribunal heard the application for leave to proceed (a requirement where a complainant has requested referral after the President has declined the complaint) and considered statutory provisions, the applicant’s material, and authorities on whether police conduct can constitute a 'service' and on the leave discretion (Legislation and principles; Consideration).
The Tribunal found that (i) the police do not have a function of providing legal assistance; (ii) while investigative action by police can in the abstract be a 'service' for anti-discrimination purposes, the applicant had not established that the refusal to investigate or provide assistance was caused by a presumption of mental illness; (iii) the single factual item tying police conduct to presumed disability, referral to a mental health team, was not sufficient, because there was evidence that referrals were made as a duty of care; and (iv) the complaint, to the extent it relied on the Charter of Victims Rights, had been dealt with by the Department (Consideration). For these reasons the Tribunal refused leave to proceed (Order).
Why the court decided this way
The Tribunal's reasoning proceeds through identification of the elements the applicant must prove and then applying statute and precedent to those elements.
The statutory framework:
s 49M of the Anti-Discrimination Act 1977 makes it unlawful to refuse to provide goods or services on the ground of disability. 'Services' is defined widely in s 4 (including services provided by a public authority) (The nature of the complaint [s 49M; s 4]).
s 49A makes clear 'disability' includes a disability a person is thought to have (presumed disability).
s 92 permits the President to decline a complaint for a range of reasons; s 93A permits a complainant to request referral to the Tribunal; s 96 requires leave for Tribunal proceedings when a complainant has asked for referral after a s 92 decline. The Tribunal must exercise s 96 discretion having regard to the scheme and fairness (Legislation and principles).
Police functions are set out in Police Act 1990 s 6, which includes prevention and detection of crime, but does not include provision of legal assistance (Consideration).
On whether the police provided the 'services' alleged:
The Tribunal followed authorities (IW v City of Perth; Commissioner of Police v Mohammed) showing a careful analysis is required to determine whether a particular police activity is a 'service' for anti-discrimination purposes. The Tribunal accepted that investigative action in response to a member of the public can be a 'service' (Consideration).
However, legal assistance is not within the police functions in Police Act s 6. The applicant's core contention relied on the Charter of Victims Rights (clause 6.3). The Tribunal noted the Victims Rights and Support Act 2013 s 7 requires agencies to have regard to the Charter 'as far as practicable and appropriate', and that does not automatically make legal assistance a police obligation. Hence s 49M could not be engaged on the basis that police refused to provide legal assistance, because the police did not have that obligation (Consideration).
On causation (the link between presumption of disability and refusal):
s 49B requires that the less favourable treatment be 'on the ground of' disability; with presumed disability, the claimant must provide evidence to enable an inference that the conduct was because of that presumption.
The Tribunal found the applicant's only evidentiary basis for inferring a presumption was the police referring him to a mental health team. The Tribunal accepted evidence that such referrals were made as part of the police's duty of care and did not logically support the necessary inference that refusal to investigate was motivated by a presumption of disability (Consideration).
On other procedural bars:
The President had previously found the complaint lacking in substance and that the subject matter had been dealt with by the Department of Communities and Justice. The Tribunal treated that as a relevant factor under s 92/96 and refused leave as it would not be fair and just to grant leave (Background; Consideration).
In short, the Tribunal required (i) that the service be one the police provide; (ii) that there be evidence that police refused that service because they presumed the complainant had a disability; and (iii) consideration of whether the complaint had already been properly dealt with by another body. The applicant failed on these points.
Before and after state of the law
Before:
There was existing authority that not all police activities count as 'services' for anti-discrimination statutes. Key authorities canvassed include IW v The City of Perth (High Court) (principle that one must identify the service and whether it is provided by the alleged discriminator), Commissioner of Police v Mohammed (NSW Court of Appeal, indicating that conduct in response to requests for assistance can involve 'services'), and various tribunal decisions (Robinson, Mariani, VPZ) which carve out distinctions between assistance/protection-type activity (potentially services) and decision-making/prosecutorial discretions (typically not services). The law required a fact-specific inquiry.
After (as to this decision):
This Tribunal reaffirmed that investigative action can amount to a 'service' but emphasised that the applicant must (a) identify the service precisely and show it falls within police functions, and (b) adduce evidence linking refusal to a presumption of disability. The decision reinforces that referrals to mental health teams, if justified by duty of care, will not by themselves give rise to an inference of discriminatory motive. The decision also stresses the leave gatekeeping function under s 96 where the President has already declined a complaint and another body has considered the matter.
Key passages with plain-English translation
"In order to succeed in his complaint, Mr Derrick must show: 1. That the respondent provides the relevant services. 2. That the respondent refused to provide the relevant services ... on the ground that it believed he had a disability ... 3. That by doing so it treated him less favourably ..."
Plain English: To win, Mr Derrick must prove (a) police offer the service he says they refused; (b) police refused it because they thought he had a disability; (c) that this refusal was worse treatment than someone without that presumed disability would have received.
"On the available information, Mr Derrick has not established that the Charter requires the NSW Police Force to provide legal assistance to him even if he were a victim of crime."
Plain English: The Charter does not automatically make police give legal help; it asks agencies to consider victims' rights so far as practical, but that does not make legal help a police duty in these facts.
"The only evidence Mr Derrick identified in support of such an inference was that he was referred to a mental health service. This of itself ... is not logically supportive ... as there is evidence to show that this was done as part of the respondent's duty of care."
Plain English: Being sent to mental health services does not by itself prove discrimination because police can refer someone for mental health help out of concern for safety or wellbeing.
"Leave to proceed with the complaint of disability discrimination is refused."
Plain English: The Tribunal will not allow this anti-discrimination complaint to go ahead.
(Each of the above paraphrases is rooted in the Tribunal's expressed reasoning in the judgment's Consideration and Order sections.)
What fact patterns trigger this precedent
This decision is closely engaged where:
A complainant alleges police refused to investigate alleged offences or provide assistance because of a presumed mental illness, and seeks to characterise investigative refusal as a 'service' under s 49M.
The complaint also relies on victim-centred obligations (Charter of Victims Rights) to assert police should provide legal assistance.
The President of the Anti-Discrimination Board has already declined the complaint and referred it under s 93A, so the complainant must obtain leave under s 96.
The facts include police referrals to mental health teams or other welfare responses that the complainant contends evidence a presumption of mental illness.
In these scenarios the Tribunal will:
Require the complainant to precisely identify the service withheld and show it is within police functions.
Scrutinise whether the evidence permits an inference that the refusal was because of a presumed disability, rather than part of duty-of-care responses or a conclusion based on evidentiary insufficiency.
Give significant weight to whether another body has already dealt with the subject-matter.
How later courts have treated it
This decision itself relies on and synthesises previous authorities (IW, Mohammed, VPZ, Robinson, Mariani, Ekermawi). It follows the approach that police investigative action can sometimes be a 'service' but that analysis is fact-specific.
Subsequent decisions (not canvassed here) would likely treat Derrick as part of the line holding that the Tribunal must apply s 96 gatekeeping robustly where complaints are lacking substance or already handled elsewhere, and that referrals to mental health services are not decisive evidence of discriminatory motive absent other indicators.
Practitioners should expect courts and tribunals to continue to ask for precise pleadings and factual foundation when complaints allege police discriminated by refusing to act for reasons of presumed mental illness.
Still-open questions
Boundary between investigative 'service' and prosecutorial/decision-making discretion: The decision recognises investigative action can be a 'service' but does not exhaustively specify the limits. Cases with different fact patterns (for example, where police have formal protocols promising certain investigative steps) may produce different results.
When and how the Charter of Victims Rights can convert into enforceable obligations against a particular agency: this decision treats the Charter as contextually limited by 'as far as practicable and appropriate'. What factual matrix will push a Charter expectation into a practical obligation for a particular agency remains fact-dependent.
The evidential threshold for inferring a discriminatory motive from referrals to welfare or mental health services: Derrick treats a single referral as insufficient. But if there were contemporaneous statements, written notes, or pattern evidence, would inference be stronger? The decision leaves the precise evidential tipping point unspecified.
Interaction between s 92 declination reasons and the s 96 leave discretion: the Tribunal said its discretion is not confined to the President's grounds but must be exercised fairly. The precise circumstances in which leave ought to be granted despite a prior declination remain sensitive to the facts; future decisions will clarify that boundary.
Note: This analysis is drawn from the Tribunal’s reasons in Derrick v State of NSW (NSW Police Force) [2020] NSWCATAD 235 (Senior Member C A Ludlow), including the Background, Legislation and principles, The nature of the complaint, Applicant’s evidence, Respondent’s evidence, Consideration, and Order sections. Paragraph references in the judgment were used to guide structure and quotations.
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Judgment (5 paragraphs)
[1]
The applicant's evidence and submissions
As well as the complaint and subsequent correspondence with the Anti-Discrimination Board, Mr Derrick provided:
1. A determination of the Independent Assessor concerning his complaint dated 7 October 2017 against the Financial Ombudsman Service Limited (FOS)
2. The Australian Banking Industry Ombudsman Bulletin No 25, June 2000
3. The Charter of Victims Rights for NSW
4. Written submissions (undated)
The determination related to FOS's handling of Mr Derrick's dispute with a bank. Mr Derrick claimed that the bank had refused to provide him with any information concerning accounts he had opened with the bank in the past, and was doing so to cover up theft of his funds. It refers to court proceedings commenced by Mr Derrick against the bank in order to obtain the information he was seeking.
The Independent Assessor found that one of the service complaints made by Mr Derrick was upheld, in that FOS incorrectly took the position that it could not compel the bank to produce relevant documents which were more than 7 years old. Mr Derrick's other complaints were not upheld. The Assessor noted, however, that when Mr Derrick made a monetary complaint against the Bank in 2012, FOS called for the Bank to produce documents including those which were more than 7 years old. He recommended that FOS provide an apology to Mr Derrick.
Although I had some difficulty following the complex and lengthy history of this matter as outlined in Mr Derrick's submissions, I understand that Mr Derrick claims that the records he wants from the Bank have not been searched for effectively and that he needs to commence court proceedings to force this to occur. He wants and expects the NSW Police to assist him with this.
At the hearing he submitted that the services he was seeking from the respondent were legal services, in particular putting in motion legal proceedings to give him access to legal services.
He complained:
"When I attended the local NSW police station, I am confronted by officers who look in my complaint file and continue to allege that I am a mentally ill person.."
He claims that when he went to the police asking for legal assistance as he expected under the Charter, they claimed he had mental illness, referred his matter to the local mental health team and refused to provide him with the services he wanted. He said that the respondent offered him mental health services because they assumed his complaint related to a presumed mental illness and did not offer him the full range of services he was entitled to. He submitted that the respondent told him his evidence was not sufficient to show that a crime had occurred.
[2]
Evidence and submissions of the respondent
The respondent relied on the following:
1. Response to the Anti-Discrimination Board dated 28 April 2020
2. Submissions dated 7 July 2020.
The respondent submitted that leave to proceed should be refused on the grounds that:
1. The respondent does not provide "services" within the meaning of the AD Act, either because they are not within its functions or because they do not come within the meaning of the term;
2. The respondent did not treat Mr Derrick less favourably than it would have treated a person without his particular characteristic in the same or similar circumstances;
3. The Department of Communities and Justice investigated Mr Derrick's complaint of denial of access to services under the Charter and concluded that it was not sustained, therefore the matter has been dealt with by another body.
In its submissions the respondent proceeded on the basis that the discrimination was alleged to be on the ground of his actual or presumed disability. This is not how I read Mr Derrick's complaint. In his complaint he denied he suffered from a mental health condition and stated in his complaint that he felt he was discriminated against due to "presumed disability". This was repeated in his submissions where he stated he was being treated less favourably due to a "presumed mental health condition/illness." I have dealt with his complaint on the basis that it relates to a presumed disability.
The respondent provided a timeline of its interactions with Mr Derrick which showed that he had alleged fraud by the bank numerous times between 11 June 2013 and 2 September 2019. On these occasions he was informed that the police would not be investigating the allegation due to lack of evidence. He had complained to the Independent Commission Against Corruption (ICAC), the NSW Ombudsman, the Customer Assistance line and the Department of Communities and Justice. No further action was taken by ICAC or the Ombudsman. The Department informed him that it would not be taking any action as it was satisfied that the respondent had acted appropriately.
Mr Derrick did not dispute any of the facts as set out in the timeline, except in relation to the interpretation of the respondent's conduct.
The respondent acknowledges that it did not investigate Mr Derrick's allegations and that the police dealing with him became aware of facts that either indicated Mr Derrick had a mental disability or upon which they presumed he had a mental disability.
[3]
Consideration
In the context of alleged discrimination under the similarly worded s 66K(1) of the Equal Opportunity Act 1984 (WA) Brennan CJ and McHugh J said in IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17:
"In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides."
Taking Mr Derrick's evidence at its highest, I conclude that the services he sought were an investigation of his allegations that a crime had been committed and providing him with the other legal assistance he requested. The respondent agrees that it did not provide either of these services to him. Mr Derrick relies on the Charter to establish that the respondent should provide him with legal assistance.
The mission and functions of the NSW Police Force are contained in s 6 of the Police Act 1990:
"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,
(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 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.
(4) A reference in this section to the functions of the NSW Police Force includes a reference to the functions of members of the NSW Police Force.
(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.
(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."
This does not include the provision of legal assistance.
[4]
Order
1. Leave to proceed with the complaint of disability discrimination is refused.
[5]
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
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.
Decision last updated: 23 September 2020
Legislation and principles governing the grant of leave
A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: (s 87A(1)(a)(i) of the AD Act).
Section 92 provides:
"92 President may decline complaint during investigation
(1) If at any stage of the President's investigation of a complaint -
(a) the President is satisfied that -
(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or
(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or
(iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or
(iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or
(v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or
(vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or
(vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or
(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,
the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.
(2) The President, in a notice under this section, is to advise the complainant of -
(a) the reason for declining the complaint or part of the complaint, and
(b) the rights of the complainant under sections 93A and 96."
Where the President has declined a complaint under s 92 of the AD Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so (s93A).
Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), as has happened in this case, the complaint may not be the subject of proceedings before the Tribunal unless the Tribunal grants leave (s 96(1)).
Section 96 of the AD Act gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed, which is not confined to the grounds on which the President declined the complaint, although the Tribunal may have regard to those grounds. That discretion must, however, 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. Leave must be granted or refused depending on what is fair and just in the particular circumstances. It is for the plaintiff to establish that the leave should be granted (Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25-36] [58-61]).
Leave to proceed with the complaint of disability discrimination is refused (order made 23 September 2020).
The respondent said that it had referred Mr Derrick to the Camperdown Crisis Team on occasion as part of their duty of care.
Mr Derrick appears to rely on clause 6.3 of the Charter which states:
"A victim will have access where necessary to available welfare, health, counselling and legal assistance responsive to the victim's needs."
The Victims Rights and Support Act 2013 defines "victim of crime" as a person who suffers harm as a direct result of an act committed, or apparently committed, by another person in the course of a criminal offence.
Section 7 provides:
"(1) The Charter of Victims Rights is, as far as practicable and appropriate, to govern the treatment of victims in the administration of the affairs of the State.
(2) Any agency or person exercising official functions in the administration of the affairs of the State (other than judicial functions) must, to the extent that it is relevant and practicable to do so, have regard to the Charter of Victims Rights in addition to any other relevant matter."
The services are only required to be provided if it is practicable, appropriate and relevant to do so.
On the available information, Mr Derrick has not established that the Charter requires the NSW Police Force to provide legal assistance to him even if he were a victim of crime. It is not part of the respondent's functions to provide legal assistance. Therefore Mr Derrick has not established that s49M applies to their refusal to provide it.
The respondent submits that investigative services provided by NSW police are not "services" within the meaning of the AD Act. It relied on the decision of VPZ v Victoria Police (Human Rights) [2017] VCAT 1398. At [34] the Tribunal summarised its approach to whether police functions were services including the following:
"Services are not provided when police: investigate an alleged offence; question an alleged offender; arrest an alleged offender; decide whether or not to lay charges; decide to apply for orders such as an apprehended violence order; decide whether or not to prosecute charges; and decide how a matter will proceed in court."
The VCAT relied on two decisions of this Tribunal in relation to the above conclusions: Robinson v Commissioner of Police, NSW Police Force [2013] FCA 770 and Mariani v NSW Police Force, State of NSW [2013] NSWADT 35. Neither case considered a complaint by a member of the public about a refusal by police to investigate an alleged offence.
VCAT also held that:
"Those parts of the officer's duties involving assistance to or protection of members of the public entail the provision of services to the public". ( at [35])
This was consistent with the finding in Robinson 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".
A similar view was taken in Commissioner of Police v Mohammed [2009] NSWCA 432 where a majority of the Court of Appeal held (at [49]):
"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."
Therefore I have proceeded on the basis that taking action to investigate a matter in response to a complaint by a member of a public can be a service to that person.
In order for the complaint to succeed, Mr Derrick would need to establish that the respondent's refusal to provide the service was caused by it presuming he had a disability. This requires an inference to be drawn. The only evidence Mr Derrick identified in support of such an inference was that he was referred to a mental health service. This of itself does is not logically supportive of such an inference as there is evidence to show that this was done as part of the respondent's duty of care. It is not possible to draw the required inference.
Nor does it seem likely that he could establish that the respondent treated him less favourably because of his presumed disability than it would have treated another person without that disability in the same or similar circumstances. This is because previous complaints had led the police to determine that there was insufficient evidence to indicate a crime had occurred as alleged.
For the above reasons I conclude that the complaint is misconceived and lacks substance.
There is also evidence that the complaint, in so far as it relies on legal assistance under the Charter of Victim's Rights, has been dealt with by the Department. Taking both factors into consideration, in my view it would not be fair and just to grant leave for the complaint to proceed.