Derrick v State of NSW

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.."

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.
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.

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]).

At a glance

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Decision date

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Judgment (5 paragraphs)

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Legislation Cited (4)

Cases Cited (6)