What happened
Mr Rae, an Indigenous man, alleged that on 3 March 2007 he was subjected to racial abuse and assault by two senior police officers outside Tweed Heads Police Station. A member of the public, Mr Francis, was said to be a witness. Mr Rae complained about the incident. The precise route of that complaint is disputed, but the Tribunal accepted (for the purposes of the summary dismissal application) that it was made directly to the Ombudsman. In any event, any complaint about police conduct must proceed under Part 8A of the Police Act 1990 because s 12 and Schedule 1 of the Ombudsman Act 1974 preclude complaints about police conduct under the latter Act.
An officer in the Ombudsman's office, Mr Quirke, was allocated the matter. Mr Rae says he told Mr Quirke about the witness and that Mr Quirke claimed to have contacted Mr Francis. When Mr Rae checked with Mr Francis, the witness denied any contact. Mr Rae accused Mr Quirke of lying. According to Mr Rae, Mr Quirke then said he had not contacted Mr Francis because he was "one of Rae's Abo mates". Mr Rae complained to the Ombudsman about Mr Quirke's alleged conduct. After investigation, the Ombudsman decided that the police investigation outcome was reasonable and that Mr Quirke had properly overseen it; no further action was taken.
On 7 February 2008 Mr Rae lodged a complaint with the President of the Anti-Discrimination Board alleging that the Ombudsman had discriminated against him on the ground of race in contravention of s 19 of the Anti-Discrimination Act 1977 (AD Act) in the way his complaint and the secondary complaint about Mr Quirke had been handled. The President accepted the complaint and referred it to the Tribunal under s 93C. The Ombudsman then applied to the Tribunal for summary dismissal on two bases. First, that the President should have declined the complaint under s 89B because no part of the conduct could amount to a contravention of the AD Act, and that the erroneous acceptance deprived the Tribunal of jurisdiction. Second, and in the alternative, that the complaint was lacking in substance or did not disclose a contravention because the Ombudsman was not providing "services" to Mr Rae when performing its Part 8A oversight and review functions.
The hearing took place on 30 March 2009 before Hennessy N (Deputy President). No documentary evidence was tendered, apparently because of the inadmissibility provision in s 170 of the Police Act 1990. The Tribunal therefore proceeded on the basis of the parties' competing accounts, taking Mr Rae's case at its highest on the summary dismissal application. On 28 July 2009 the Tribunal refused the Ombudsman's application in its entirety.
Why the court decided this way
The Tribunal's reasoning is grounded in three interlocking propositions. First, jurisdiction could not be lacking. The Tribunal determined its own jurisdiction by reference to Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55. Section 95(3) of the AD Act provides that a referral by the President is taken to be an application for an original decision. Because the President had in fact referred the complaint, jurisdiction existed even if the President had erred in failing to decline it under s 89B. This ground was disposed of at [10]-[11].
The second and substantive ground occupied the balance of the reasons. The Ombudsman argued that its functions under Part 8A are performed in the public interest, independently of both the Police Force and individual complainants, and "without reference to the private interests of a complainant". Therefore, it submitted, it was not providing a "service" to Mr Rae. The Tribunal rejected that contention after a careful analysis of the statutory scheme and the leading High Court authority.
Part 8A of the Police Act 1990 creates an integrated complaints system involving the Commissioner, the Police Integrity Commission and the Ombudsman. A complaint may be made to any of them (s 127). The Ombudsman must ordinarily refer complaints to the Commissioner (s 132) but retains monitoring, information-gathering and review powers (ss 146, 151-154). The Tribunal noted that these steps are taken after a member of the public has invoked the process by making a complaint. Once that occurs, the Ombudsman responds to the complainant, oversees the investigation, and communicates outcomes. That response was characterised as the provision of a service.
The Tribunal gave the AD Act the liberal construction required of beneficial legislation, citing IW v City of Perth (1997) 191 CLR 1 at 11-12. It preferred the majority view, particularly the passage from Gummow J at 44 extracted at [18] of the reasons, that there is no dichotomy between the discharge of statutory functions and the provision of services to those who invoke them. The Ombudsman's reliance on the dissenting judgment of Brennan CJ and McHugh J was noted but discounted because it was a dissent on the very point.
The Tribunal drew an analogy with a local council determining a town planning application. Just as a council provides a service both to the community and to the individual applicant, the Ombudsman provides a service both to the public at large and to the individual who complains. The independent, watchdog character of the office and the public-interest overlay did not change the character of the relationship between the Ombudsman and Mr Rae. The same conclusion applied to the secondary complaint about Mr Quirke's alleged conduct.
Finally, the Tribunal reiterated the high threshold for summary dismissal drawn from Dey v Victorian Railways Commissioners (1949) 78 CLR 62, General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125, Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 and Margan v University of Technology, Sydney [2003] NSWADTAP 65. A complaint should be dismissed only where it is manifestly groundless or, on the pleadings, cannot possibly succeed. Because the "services" argument failed, the complaint disclosed a possible contravention of s 19 and could not be dismissed.
Before and after state of the law
Prior to this decision the boundaries of "services" in s 19 (and its analogues) in relation to public authorities exercising regulatory or oversight functions were not fully settled in New South Wales. The High Court in IW v City of Perth had divided on the question. The majority accepted that town planning decisions could constitute services. The minority (Brennan CJ and McHugh J) emphasised the distinction between a council acting as an arm of government in a deliberative or quasi-judicial capacity and the provision of services. Public authorities and their legal advisers could reasonably argue that purely statutory oversight roles, especially those required to be independent and directed to the public interest, fell on the non-service side of the line.
The Ombudsman relied squarely on that dissenting view in the present case. The Tribunal's rejection of that approach at [20] and its express preference for the majority reasoning clarified the law in this jurisdiction. After Rae, it is clear that the Ombudsman's receipt of a complaint under Part 8A, the subsequent monitoring, information requests, review of decisions, and communication with the complainant, collectively constitute the provision of a service to the person who invoked the statutory power. The public-interest character of the function and the statutory independence of the office do not negate that characterisation.
The decision also reinforced the procedural approach to summary dismissal applications in the Equal Opportunity Division. By reiterating the "exceptional caution" test and the need to take the applicant's case at its highest, the Tribunal confirmed that arguments about the legal character of the respondent's activities will rarely justify summary termination unless the proposition is unarguable. The practical effect is that complaints alleging discrimination in the handling of police oversight matters must ordinarily proceed to a full merits hearing where questions of fact, causation and reasonableness can be tested.
Section 4 of the AD Act's inclusive definition of services (expressly encompassing services of a council or public authority) was given work to do. The decision stands as authority that the performance of statutory complaint-handling functions by public authorities will ordinarily satisfy that definition when a member of the public has initiated the process.
Key passages with plain-English translation
Paragraph [18] quotes Gummow J in IW v City of Perth: "There is no reason in logic or good sense to deny the proposition that the Council may be engaged in the provision of services, not only to the community as a whole, but also to individual applicants who invoke the exercise of the powers of the Council under the town planning law. There is no dichotomy here between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions."
Plain-English translation: A government body does two things at once when it uses its legal powers. It serves the whole community by doing its job properly, and it also serves the particular person who has asked it to make a decision or take action. There is no sharp line that says "this is just government work, so it can't also be a service to you".
At [20] the Tribunal notes that the Ombudsman relied on the dissenting passages from Brennan CJ and McHugh J but observes that "his submission is not persuasive" because those justices were in the minority on the point. This is a polite but firm rejection of the argument that quasi-judicial or oversight roles are automatically outside the discrimination legislation.
The ratio appears at [21]: "Once such a complaint has been received, it is my view that the Ombudsman is providing a service to that person (within the meaning of that term in the AD Act) when responding to that complaint. The fact that the Ombudsman is an independent and impartial watchdog and has monitoring and review powers over police complaints, does not change the character of the relationship between him and the complainant. While that relationship is not the same as the relationship between a Council and a member of the public applying for town planning approval, it is analogous. In both cases, the authority is providing services both to the community as a whole and to individuals who invoke their powers."
Plain-English translation: When someone complains to the Ombudsman about the police, the Ombudsman is not just acting as a distant regulator. By taking the complaint seriously, investigating what the police did, and telling the person the outcome, the Ombudsman is delivering a service to that individual. Being independent and working for the public good does not cancel out the service relationship with the person who made the complaint. The situation is similar to a council deciding whether to approve a building project: the council serves everyone by having proper rules, but it also serves the person who lodged the application.
Paragraph [13] contains the procedural caution: the power to dismiss summarily should be exercised "with exceptional caution and only if the circumstances clearly warrant such action", citing the well-known High Court authorities. This passage reminds practitioners that the bar is set deliberately high.
What fact patterns trigger this precedent
This precedent is triggered whenever a member of the public lodges a complaint about police conduct that is received or handled by the NSW Ombudsman under Part 8A of the Police Act 1990 and later alleges that the Ombudsman (or its officers) discriminated against them on a ground prohibited by the AD Act in the way the complaint was managed. The discrimination might relate to the manner of investigation, failure to contact witnesses, allegedly derogatory remarks, the ultimate decision not to take action, or the response to a complaint about the Ombudsman's own officer.
More broadly, the reasoning applies to any situation in which an individual invokes a statutory power held by a public authority and the authority responds to that invocation. The fact that the authority must act independently, consider the public interest, or perform a monitoring or review role does not prevent the interaction from being characterised as the provision of a service. The precedent is not limited to race discrimination; it applies equally to the other grounds in Part 2 of the AD Act.
It does not matter whether the original complaint was made directly to the Ombudsman or routed through the Police Force. Nor does it matter that s 170 of the Police Act 1990 may limit the admissibility of certain documents; the legal characterisation of the relationship is determined by the statutory scheme and the fact that the complainant has sought the exercise of the Ombudsman's powers.
The decision would not be engaged if the alleged discriminatory conduct occurred in a purely internal administrative step that no member of the public had invoked, or in the exercise of a power that is truly legislative in character. But once a complainant has "knocked on the door" by making a complaint, the subsequent handling is likely to be seen as service provision.
How later courts have treated it
The judgment applies the majority reasoning in IW v City of Perth (1997) 191 CLR 1 at paragraphs [18]-[21] and expressly declines to follow the minority view. It treats the High Court's statement that beneficial legislation receives a liberal construction as determinative. The Tribunal also treats the summary dismissal principles in Dey, General Steel and Batistatos as setting a uniformly high threshold that prevents early termination where the legal characterisation of "services" is reasonably arguable.
Within the Tribunal's own jurisprudence the decision is consistent with earlier authorities such as Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 (taking the applicant's case at its highest on summary dismissal) and Margan v University of Technology, Sydney [2003] NSWADTAP 65 (equating failure to disclose a contravention with the absence of a reasonable cause of action). It cites Langley v Niland & Anor [1981] 2 NSWLR 104 and Reyes-Gonzalez v Sydney Institute of Technology for the meaning of "lacking in substance" but distinguishes those cases because the Ombudsman's application turned on a legal characterisation rather than the absence of factual merit.
The decision therefore sits squarely in the line of authority that refuses to draw a bright line between statutory duty and service provision when a public authority interacts with an individual who has requested the exercise of statutory powers. It has reinforced the proposition that the AD Act's reach extends to the manner in which public authorities handle complaints made to them.
Still-open questions
The judgment leaves open the precise limits of the "service" characterisation. It does not decide whether every conceivable decision made by the Ombudsman under the Police Act or the Ombudsman Act 1974 would constitute a service. For example, a decision to decline to investigate a complaint on public-interest grounds without any engagement with the complainant might be argued to fall on the other side of the line, although the present reasoning suggests otherwise once a complaint has been received.
The Tribunal did not need to explore whether the s 170 inadmissibility provision in the Police Act 1990 creates any practical barrier to proving discrimination at a final hearing. That question remains for another day.
Another open issue is the interaction with the "reasonableness" defence or exemption provisions that exist in other parts of the AD Act but were not relevant at the summary dismissal stage. The decision confirms that the complaint can proceed but does not indicate how a full hearing would balance the Ombudsman's independence against the prohibition on race discrimination.
Finally, the judgment notes at [2] and [17] that Mr Rae's argument that his complaint was made under the Ombudsman Act 1974 rather than the Police Act was rejected. The precise statutory characterisation of a complaint may still arise in future cases and could affect the scope of the service relationship.
Gotchas
Most practitioners assume that because the Ombudsman is statutorily independent and must act in the public interest, its decisions are immune from anti-discrimination scrutiny. Rae shows that once a member of the public makes a complaint, the oversight function is treated as a service to that person. Lawyers acting for public authorities routinely plead the "no service" point at an early stage; this decision demonstrates that such applications will rarely succeed on the pleadings alone.
Another trap is believing that the s 170 confidentiality and inadmissibility provisions in the Police Act 1990 will prevent a discrimination claim from getting off the ground. The Tribunal noted the provision but still refused summary dismissal, indicating that sufficient material may be available outside the protected Part 8A documents or that the prohibition does not extend to proceedings that review administrative action.
Compliance professionals advising government agencies should not assume that "public interest" language in a statute automatically removes the conduct from the AD Act. The majority view in IW v City of Perth, adopted here at [18] and [21], treats the two concepts as capable of co-existing. The liberal construction mandate means that borderline cases will usually be resolved in favour of the legislation applying.
Finally, the high threshold for summary dismissal is regularly underestimated. Citing General Steel and Batistatos is not enough; the Tribunal requires the respondent to show that the claim is "manifestly groundless" or "so obviously untenable that it cannot possibly succeed". An arguable construction of "services", even if ultimately unsuccessful at final hearing, will almost always survive an interlocutory strike-out application.