Habib v State of NSW

Court of Appeal (NSW)|2013-03-05

Introduction 1Mr Habib came to Australia from Egypt when he was 30 years old. He left to live in Pakistan but was arrested there and eventually transferred to Cuba. He remained imprisoned in Guantanamo Bay for nearly four years between 2001 and 2005. He describes being tortured and abused while in detention. Mr Habib was released without conviction and returned to live in Australia. He complains that since 2006 NSW Police have discriminated against him on the ground of his race in breach of the Anti-Discrimination Act 1977 (AD Act). 2The President of the Anti-Discrimination Board declined his complaint and Mr Habib now seeks the Tribunal's permission for his complaint to go ahead. The test is whether it is fair and just for the complaint to proceed: Jones and Anor v Ekermawi [2009] NSWCA 388. When deciding whether to grant leave, the potential merits of the case are relevant. The main issues if this complaint goes to a hearing would be whether the police officers' treatment of Mr Habib can be regarded as the provision of a service to him and, if so, whether at least one of the reasons for that treatment was Mr Habib's race. 3It is fair and just for Mr Habib's complaint to go ahead because it is arguable that NSW Police were providing him with a service and there is evidence of police officers repeatedly treating Mr Habib less favourably than they would treat other members of the public. Mr Habib submits that at least one of the reasons for that less favourable treatment is his race. That may be a plausible inference in the circumstances. While the onus is on Mr Habib to substantiate his complaint, NSW Police have not proffered any other reason for their conduct. 4The complaint spans a period of more than five years from March 2006 to November 2011. Mr Habib provided a table to the President of the Anti-Discrimination Board briefly summarising eleven complaints he had made to NSW Police and the responses he had received. Some of those incidents are not within the period of the complaint and cannot be considered. Others do not contain sufficient information to enable the Tribunal to make any assessment of their merits at this stage. If enough relevant information is provided about these incidents they may form part of the complaint. The five incidents which are described in sufficient detail are discussed below.

29 March 2006 5The first incident was the subject of an application to the Victims Compensation Tribunal. Mr Habib says he was awarded $9,000 in relation to unnamed police officers using excessive force amounting to an assault. The following account of the facts is set out in the Victims Compensation Tribunal's decision which Mr Habib tendered at the leave hearing: At about 10.50 pm on 29 March 2006, the appellant picked up his son Mustafa from his night job . . . in Banksia. The appellant . . . turned into Blaxcell Street and when about 50 meters through the roundabout he saw 6 or 7 men standing in a circle facing each other in the middle of Blaxcell Street. The appellant heard what sounded like gunshots. He stopped and saw someone fall to the ground in front of his vehicle. He grabbed his mobile phone, dialled 000 and told the operator that people were shooting in Blaxcell Street not far from Guildford Road . . . the appellant got out of his car and saw two men lying on the road, one in front of his car and the other behind his car. He went to one of the men on the ground . . . A woman at the scene had handed him a blanket which he put over the man's body . . . He then saw the second man who was on the ground behind the appellant's car. 6According to Mr Habib, when the police arrived he had a conversation with an officer. He was asked for identification and says that when he tried to get his identification from the car, he was pushed in the back and other police officers grabbed him. A police officer took his identification from his bag in the car and told him that he was going to be arrested. One police officer said to another, "Put this terrorist in the wagon." When his son came to help him a struggle developed. Mr Habib demanded that police give him a reason as to why he and his son were being arrested before he would get in to the police car. 7At the hearing to determine whether Mr Habib should be given permission for his discrimination complaint to go ahead, he said from the bar table that police officers had called him a "bloody Arab terrorist" at the crime scene. Police submit that Mr Habib had not previously alleged that police had used the words "bloody Arab". 8Mr Habib was taken to the police station and held until 7.30 am the next day. The Victims Compensation Tribunal found that he suffered psychiatric harm as a result of the way police officers treated him.

25 July 2007 9Mr Habib complained to police about an incident that occurred outside the Bankstown Local Court on 25 July 2007. He had attended court on a charge which was later dismissed. He alleges that a police officer came up to him outside the court and called him a 'terrorist". Police conducted an investigation into this incident and found that the officer had acted in an unprofessional manner. She was counselled and told that any further inappropriate behaviour would result in management action. 10Again, Mr Habib alleged at the hearing before the Tribunal that the police officer had called him a "bloody Arab" terrorist.

14 December 2010 11At the end of 2010, when driving in George Street, Sydney, another car hit the car which Mr Habib was driving. Mr Habib reported the incident to police but, in his words, "they refused to book the driver who had hit me." According to Mr Habib, after the police officer checked the computer data base at the police station, he refused to take action and said, "Oh, you are suing the police, I see on your file." Mr Habib refers to a Police Incident report E43289248 which was not in evidence.

13 January 2011 12At 2.30 pm Mr Habib and his wife were driving along the Hume Highway when their car was side swiped by another vehicle. Mr Habib called police and on 17 January 2011 he went to Bankstown Police Station to report the incident. He says police have taken no action.

26 February 2011 13The next incident about which Mr Habib complains took place at the St George Police Station. He and his family had been to Brighton Le Sands for dinner. Later that night he says he was assaulted by three men in an ice cream shop. When he went to the Police Station Mr Habib says he was scanned. The officer explained that he was not in any trouble, but that a scan was necessary for "officer safety". 14Police investigated this incident following a complaint from Mr Habib. Senior Constable Joe Zammit was found to have conducted an improper search. 15Mr Habib told the Tribunal at the hearing that police had called him an "Arab terrorist" and a "Muslim terrorist".

The Law 16Section 19 of the AD Act provides that: 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. 17I understand Mr Habib's complaint to be one of direct discrimination as defined in s 7(1)(a): (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 ... 18In order to substantiate a complaint of direct race discrimination in relation to each of the incidents outlined above, Mr Habib would have to prove that: (1)he is of a member of a race as defined in the AD Act; (2)the NSW Police Force refused to provide him with a service or provided him with a service on unfavourable terms; AD Act, s 19 (3)in refusing that service or providing it on unfavourable terms, the NSW Police Force treated him less favourably than it treated or would have treated a person who was of a different race in the same or similar circumstances; (differential treatment) and (4)at least one of the reasons for that treatment was Mr Habib's race: (causation) AD Act, s 7 and s 4A.

Race 19"Race" is defined in the AD Act to include "colour, nationality, descent and ethnic, ethno-religious or national origin." Mr Habib is of Egyptian national origin. He also identifies as being an Arab. The Tribunal has decided that "Arab" can be a race for the purposes of the AD Act: Jones and Anor v Ekermawi (EOD) [2012] NSWADTAP 50 (30 November 2012). Being Muslim, by itself, does not constitute a race because while the definition of race includes "ethno-religious origin", it does not include "religion". If Mr Habib characterised his race as Egyptian or Arab, those terms would be likely to come within the definition of race in s 4.

Identification of the "service" 20NSW Police submitted that they were not providing Mr Habib with a "service" when they interacted with him. 21The first step in determining whether a person has been refused a service or provided with a service on unfavourable terms is to identify the relevant service: Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 404-405 per McHugh J, IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17 per Brennan CJ and McHugh J. As yet, Mr Habib has not identified the precise service with which NSW Police were providing him. 22The term "services" is defined by s 4 of the AD Act to include "services provided by a council or public authority." The NSW Police Force is a public authority. It is established under the Police Act 1990. Section 6 of that Act provides: 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).... 23Police officers provide the services set out in s 6(3)(a) and (b) of the Police Act to the community and to individuals in various contexts. 24In Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745, Mr Russell had been arrested by police officers and taken into custody. He complained that he had been discriminated against because he is Aboriginal. The Tribunal referred the following question of law to the Supreme Court: ... whether the conduct of the individual respondent constables in the course of the pursuance and arrest of Mr Russell amounted to the provision of a 'service' within the meaning of section 19 of the Anti-Discrimination Act ... 25The answer given by Sully J at [44] was that: A correct assessment of the conduct of the individual police officers in the course of the 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 any other way'. 26It can be implied from these answers, and from the reasons for decision, that before arresting Mr Russell, police were providing services to the community at large, not to Mr Russell personally, whereas after his arrest, police were providing Mr Russell with a service. The application of the law to the facts in Russell was not disturbed by the Court of Appeal in Commissioner of Police v Mohamed [2009] NSWCA 432. In that case, because many of the facts had not been found, the Court of Appeal made the general statement that: 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. 27On remittal from the Court of Appeal, the Tribunal decided that the police investigating a complaint made by the Mohamed family were providing services to that family within s 19 of the AD Act and were required not to discriminate on the grounds of race by refusing to provide the services or in the terms on which the services were provided: Mohamed & Ors v State of New South Wales (NSW Police Force) unreported, 31 March 2010. 28Apart from the 25 July 2007 incident, Mr Habib was in a similar situation to the Mohamed family. He was requesting assistance from NSW Police. It is likely, at least in relation to the incidents where he requested assistance from police, that Mr Habib will be able to identify the service with which he has been provided and satisfy the Tribunal that police refused to provide him with that service or provided the service on unfavourable terms.

Differential treatment and causation 29The first component of the test for direct race discrimination is the "differential treatment" test. The treatment afforded to Mr Habib must be compared with the treatment that would have been afforded to a person not of his race in the same or similar circumstances. In the absence of an actual person whose treatment can be validly compared with the treatment given to Mr Habib, a decision maker would have to rely on a hypothetical person in a comparable situation. It is difficult to make a finding about how a hypothetical person would have been treated without first addressing the second component of direct discrimination - causation. 30At least one of the reasons for being treated in the way he was treated must have been his race. There is no need to prove that the police officers concerned intended to discriminate. But because the reason for the conduct is almost always within the respondent's knowledge it is difficult for applicants to establish the grounds for that conduct. The High Court recognised and commented on this difficulty in Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 at 176 but has not suggested that the evidential burden should be on the respondent to give evidence about the reasons for its conduct. The situation under the AD Act is that the legal and evidential burden remains on the applicant to prove his or her case. 31Although Mr Habib does not know what is recorded about him on the NSW Police Data Base, he believes he is being treated unfavourably because the Data Base has a record of him being a "terrorist". He says he understands "terrorist" to mean "Arab terrorist". Mr Habib's experience has been that after a police officer interacts with him he is treated differently from the way in which any other member of the public would be treated. 32Even if the Tribunal were to find that police officers did not refer to Mr Habib's race when speaking to him, that does not necessarily mean that his complaint would fail. In the absence of direct evidence, there must be sufficient evidence from which an inference can be drawn that race was a factor which prompted the unfavourable treatment. 33I accept that Mr Habib's complaint before the Tribunal relied on an assumption that whatever was recorded on the Data Base had triggered the unfavourable treatment by police. As neither Mr Habib nor the Tribunal know what is recorded, it is premature to conclude that race is unlikely to be one of the reasons for the treatment. In all the circumstances, it is fair and just for leave to be granted for the complaint to proceed to hearing.

Order Leave is granted for the applicant's complaint of race discrimination to be the subject of proceedings before the Tribunal. 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: 28 March 2013

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