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[2009] NSWADT 195
plaintiff. The respondent's application for the complaint to be dismissed is refused.
Mr Rae complained that the NSW Ombudsman discriminated against him on the ground of his Indigenous race while investigating his complaint about alleged police racial abuse. The Ombudsman asked the Tribunal to throw the case out immediately, arguing that overseeing police complaints under Part 8A of the Police Act is a public-interest regulatory function, not a 'service' to individual complainants, so the discrimination law could not apply. The Tribunal refused to dismiss the complaint. It held that when the Ombudsman accepts a complaint from a member of the public, monitors the police investigation, asks for more information, and tells the complainant what happened, that is a service to the person who complained. Discrimination laws must be read broadly. The fact the Ombudsman is independent and acts for the public does not stop the relationship with the individual complainant from being one of service provision. The case can therefore go to a full hearing. The decision emphasises that public authorities cannot easily escape anti-discrimination obligations when dealing with members of the public who ask them to exercise their statutory powers.
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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.
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.
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.
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.
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.
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.
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.
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.
CITATION: Rae v State of New South Wales (NSW Ombudsman) [2009] NSWADT 195
Applicant: Darryl Rae PARTIES: Respondent: State of New South Wales (NSW Ombudsman)
BEFORE: Hennessy N - Magistrate (Deputy President)
CATCHWORDS: Summary dismissal, whether Ombudsman providing 'services' to complainants making complaints under Part 8A of Police Act 1990
Anti-Discrimination Act 1977 LEGISLATION CITED : Ombudsman Act 1974 Police Act 1990
Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 Langley v Niland & Anor [1981] 2 NSWLR at 104 Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT 4 CASES CITED: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 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 Margan v University of Technology, Sydney [2003] NSWADTAP 65 IW v City of Perth (1997) 191 CLR 1
Applicant Representative: In person
Respondent Representative: Ms K Morgan, counsel
ORDERS: The respondent's application for the complaint to be dismissed is refused.
1 Mr Rae is an indigenous man who complained to the Ombudsman about the conduct of police. He says that in dealing with that complaint, the Ombudsman discriminated against him on the ground of his race in contravention of s 19 of the Anti-Discrimination Act 1977 (AD Act). The Ombudsman has applied to the Tribunal for the complaint to be dismissed on two grounds. The first is that the President of the Anti-Discrimination Board should have declined the complaint and his failure to do so means that the Tribunal has no jurisdiction to hear it. The alternative ground for dismissal is that the complaint is either lacking in substance or does not disclose a contravention of the AD Act. Both grounds are based on a submission by the Ombudsman that neither he nor his office is providing "services" to Mr Rae when it is overseeing or reviewing complaints against police under Part 8A of the Police Act 1990. Unless the Ombudsman is providing services to Mr Rae, none of the alleged conduct can be unlawful. Section 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.
2 Part 8A sets out the roles and responsibilities of the Commissioner of Police, the Police Integrity Commission and the Ombudsman in relation to complaints about the conduct of police officers. Although Mr Rae submitted that his complaint to the Ombudsman was made under the Ombudsman Act 1974 and not the Police Act, the Ombudsman Act prevents a person from making a complaint about the conduct of police under that Act: Ombudsman Act 1974, s 12 and Schedule 1. While the Ombudsman may make a complaint against a police officer the subject of an investigation under the Ombudsman Act, that did not happen in this case: Police Act, s 156.
3 The issue to be determined is whether Mr Rae's complaint should be dismissed on either of the grounds put forward by the Ombudsman.
4 Mr Rae made his complaint to the President of the Anti-Discrimination Board on 7 February 2008. Neither party provided the President with copies of any of the relevant correspondence, nor did they provide any documentary evidence to the Tribunal. The failure of the Ombudsman to do so may be explained by the fact that apart from the complaint itself, a document brought into existence for the purpose of Part 8A of the Police Act is not admissible in evidence in any proceedings other than proceedings relating to the conduct of police officers or that involve review of administrative action: Police Act, s 170. The lack of documentary evidence leaves the Tribunal with the parties' accounts of what happened. Those accounts vary significantly in some respects.
5 Mr Rae says that on 3 March 2007 he was subjected to racial abuse and assault by two police officers, Superintendent Kenny and Inspector Carey, outside the Tweed Heads Police Station. He says that a member of the public, Mr Francis, was a witness to this incident. The Ombudsman has not commented on the substance of Mr Rae's allegations.
6 On 13 July 2007 the Ombudsman says he received a copy of a letter that Mr Rae had sent to the NSW Police Force containing particulars of the incident. Mr Rae says that he complained directly to the Ombudsman about this incident and did not write to the NSW Police Force. If I needed to make a finding about this issue I would find in favour of Mr Rae given that when hearing an application for summary dismissal, the applicant's case is taken at its highest: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]. However, I do not need to make a finding because I am satisfied that whether or not Mr Rae complained directly to the Ombudsman, his complaint can only have been made pursuant to 8A of the Police Act. The Ombudsman's submission was that when exercising statutory obligations pursuant that Part, he is not providing a service within the meaning of that term in the AD Act.
7 Mr Quirke from the Ombudsman's Office handled Mr Rae's complaint. Mr Rae says that there were some phone calls between himself and Mr Quirke in which Mr Rae told him about Mr Frances. According to Mr Rae, Mr Quirke told him that he had phoned Mr Francis. Mr Rae says he then phoned Mr Frances who denied that Mr Quirke had rung him. Mr Rae then accused Mr Quirke of lying. Mr Rae alleges that Mr Quirke then said he had not contacted Mr Frances because he was "one of Rae's Abo mates." Mr Rae says that Mr Frances is not indigenous and that Mr Quirke should have contacted him to obtain independent evidence about what happened on 3 March 2007. Mr Rae complained to the Ombudsman about Mr Quirke's alleged conduct. These allegations form the basis of Mr Rae's complaint of race discrimination.
8 Following an investigation of both Mr Quirke's conduct and the handling by the NSW Police Force of Mr Rae's complaints against police, no action was taken. The reason for taking no action was the Ombudsman's view that the outcome of the police investigation of Mr Rae's complaints was reasonable and Mr Quirke had properly overseen that investigation.
9 Except for the powers vested in the Minister by s 95(2), proceedings in relation to complaints under the AD Act cannot be commenced directly in the Tribunal. An aggrieved person must first lodge a complaint with the President of the Anti-Discrimination Board. Section 89B empowers the President to accept a complaint or decline it on various grounds including that "no part of the conduct complained of could amount to a contravention" of the AD Act. The President accepted the complaint. The Ombudsman disagreed with that decision. The President referred the complaint to the Tribunal under s 93C. The referral of a complaint under that provision is taken to be an application for an original decision: AD Act, s 95(3).
10 It is well established that the Tribunal can determine the scope of its own jurisdiction: Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 71. The Ombudsman's submission was that the Tribunal does not have jurisdiction because the President erred when he decided to accept the complaint for investigation. The Tribunal's jurisdiction depends on the President of the Board referring a complaint to it pursuant to section 90B, 93A, 93B or 93C. That is clear from s 95(3) of the AD Act:
For the purposes of the Administrative Decisions Tribunal Act 1997, the referral of a complaint to the Tribunal is taken to be an application for an original decision within the meaning of that Act. 11 As the Tribunal's jurisdiction is enlivened by the referral of a complaint by the President, the Tribunal does not lack jurisdiction even if the President accepts a complaint erroneously. This ground for dismissal has not been made out.
12 Introduction. The Tribunal has power to dismiss a complaint if "the complaint or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance" or if "the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision" of the AD Act: AD Act, s 92 and s 102. The Ombudsman applied for the complaint to be dismissed on either or both of these grounds. As we have said, the basis for that application was that when exercising his statutory obligations pursuant to Part 8A of the Police Act, the Ombudsman is not providing Mr Rae with a "service" within the meaning of that word in the AD Act. In our view this submission, if successful, would justify the complaint being dismissed on the ground that it does not disclose a contravention of the AD Act. It would not justify the complaint being dismissed because it lacks substance. A complaint is "misconceived" or "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations, or that the allegations lack merit: Langley v Niland & Anor [1981] 2 NSWLR at 104 at 107; Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT 4. The Ombudsman's submissions were not based on the factual basis of Mr Rae's allegations but rather on the nature of the activity in which he is engaged pursuant to Part 8A.
13 Summary dismissal power. The Tribunal should exercise its discretion to dismiss a complaint summarily with exceptional caution and only if the circumstances clearly warrant such action: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 at 129-30; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at [157] to [161]. In Margan v University of Technology, Sydney [2003] NSWADTAP 65 at [10], the Appeal Panel focused on the power of the Tribunal to dismiss a complaint which failed to disclose a contravention of the AD Act:
The failure of the complaint to disclose a contravention of the Act is analogous to the inherent and/or statutory power of courts to dismiss proceedings when the pleadings fail to show a reasonable cause of action. For example, Part 13, rule 5 of the Supreme Court Rules 1970 allows the Court to stay or dismiss proceedings where no reasonable cause of action is disclosed. The rule gives the Court a discretionary power to dismiss the plaintiff's case when it is so weak that to permit the proceedings to go to trial would be futile: Peter Kent Developments Pty Ltd v Australia & New Zealand Banking Group Ltd (SC (NSW), Hunt J, 6 May 1980, unreported). Ritchie's Supreme Court Procedure NSW (Peter Taylor SC ed, Butterworths 1984) notes at 2325 that "The test to be applied has variously been described as whether the matter is so obviously untenable that it cannot possibly succeed', manifestly groundless', so manifestly faulty that it does not admit of argument', one which the court is satisfied cannot succeed', one where under no possibility can there be a good cause of action'", or one which `would involve useless expense' ( General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129; Pannizutti v Trask (1987) 10 NSWLR 531 at 536; Rajski v Powell (1987) 11 NSWLR 522 at 524; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 942.
14 Part 8A of the Police Act. Part 8A sets out the roles and responsibilities of the Commissioner of Police, the Ombudsman and the Police Integrity Commission in relation to complaints about the conduct of police officers. A complaint may be made to any of these public authorities: Police Act, s 127. Once a complaint has been received, Part 8A sets out the kinds of complaint that are to be investigated by that authority and the kinds of complaints that are to be referred to another authority. For example, the Ombudsman must refer any complaint he receives to the Commissioner of Police unless he is of the opinion that it is not in the public interest to do so: Police Act, 132. Consequently, the Commissioner of Police investigates the majority of complaints. When the Commissioner receives a complaint, he must notify the Ombudsman of his decision to either investigate or not to investigate the complaint: Police Act, s 139.
15 The Ombudsman may also monitor investigations carried out by the Commissioner: Police Act, s 146. Monitoring may include Ombudsman officers attending interviews between complainants and police investigators. The Commissioner must send a report of any investigation to the Ombudsman: Police Act, s 150. In addition, the Ombudsman may request the Commissioner to provide information in relation to a complaint or the investigation of a complaint: s 151 and s 152. The Ombudsman may also request that the Commissioner conduct further investigations: Police Act, s 153. Under s 154, the Ombudsman may request the Commissioner to review any decision concerning any action to be taken as a result of the investigation.
16 Ombudsman's submissions. The Ombudsman submitted that the monitoring and review functions under Part 8A require him to act in the public interest and not in the interests of individual complainants. He said that the oversight of complaints against police is independent of both the NSW Police Force and complainants and is performed "without reference to the private interests of a complainant". As Mr Rae's complaint related to how an officer in the Ombudsman's Office exercised the oversight function, the Ombudsman was not providing Mr Rae with a service as defined in the AD Act. The Ombudsman has also applied for that part of Mr Rae's complaint to be dismissed because he submits that it is intrinsically connected to the performance of the oversight function and is not the provision of a service to Mr Rae.
17 Mr Rae's submissions. Mr Rae's main submission was that his complaint to the Ombudsman was not made pursuant to Part 8A. We have rejected that argument at [2] above.
18 Is the Ombudsman providing services when responding to complaints under Part 8A? Services are defined in the AD Act to include "services provided by a council or public authority": AD Act, s 4. The Ombudsman's office is a public authority. High Court decisions have said that beneficial and remedial legislation like the AD Act should be given a liberal construction: IW v City of Perth (1997) 191 CLR 1 at 11-12 per Brennan CJ and McHugh J. The Ombudsman relied on the High Court's decision in IW v City of Perth (1996) 191 CLR 1. In that case the Council had refused town planning approval for premises to be used as a drop in centre for people with HIV/AIDS. A complaint was made under the Equal Opportunity Act 1994 (WA), against the Council and 15 of its members alleging discrimination on the ground of impairment in relation to the provision of services. A majority of the High Court (Dawson, Gaudron, Gummow, Toohey and Kirby JJ) decided that the Council had provided services when determining whether to grant town planning approvals. Gummow J said at 44 that: 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.
19 The Ombudsman relied on the following passages from the joint judgement of Brennan CJ and McHugh J at 15 who dissented on this point: Thus, when a council is called on as a deliberative body to exercise a statutory power or to execute a statutory duty, it may be acting directly as an arm of government rather than as a provider of services and its actions will be outside the scope of the Act. This is particularly so when councillors are acting as representatives of their constituencies in making by-laws or resolutions that will have the force of law throughout the municipality or borough. Such "legislative" acts have to be contrasted with the acts involved in making operational decisions as to whether a particular service should be provided to certain individuals or to a section of the community.
Similarly, when a council is required to act in a quasi-judicial role in exercising a statutory power or duty, it may be inappropriate to characterise the process as the provision of a service for the purpose of the Act even in cases where the product of the process is the provision of a benefit to an individual. This is likely to be the case where the council, before making a decision, is required to consider matters that affect the public interest. In such a case, the Council may be providing a "service" in a very general sense because its ratepayers ultimately benefit from the process. But that may not be sufficient to bring the process within the scope of PtIVA of the Act.
20 According to the Ombudsman, this reasoning is applicable to the performance of his functions under Part 8A of the Police Act. Given that Brennan CJ and McHugh J were in dissent on this point, his submission is not persuasive.
21 Conclusion. The NSW Ombudsman is a public authority with various statutory functions designed to ensure that government agencies, such as the Police Force, are fulfilling their responsibilities to the public. One of his statutory functions is to receive complaints from members of the public about the conduct of a government agency, including the conduct of individual police officers. 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.
22 Keeping in mind that a complaint should only be summarily dismissed if the circumstances clearly warrant such action, Mr Rae's complaint should not be dismissed on the ground that the Ombudsman is not providing him with a service when responding to his complaint. I am also satisfied that if a person complains about the manner in which the complaint has been handled, the Ombudsman is also providing a service to that person when responding to that complaint. It follows that Mr Rae's complaint should not be summarily dismissed on the ground that it does not disclose a contravention of the AD Act.
Orders The respondent's application for the complaint to be dismissed is refused.
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.
Rae
State of New South Wales
(1996) 191 CLR 1
[1964] HCA 69
(1999) 46 NSWLR 55
(1949) 78 CLR 62
(1964) 112 CLR 125
(1997) 191 CLR 1
(1987) 10 NSWLR 531
(1987) 11 NSWLR 522
The respondent's application for the complaint to be dismissed is refused.