Rapisarda v Commissioner of Police; Housego v Commissioner of Police; Sheehy v Commissioner of Police; McDonald v Commissioner of Police

NCAT Administrative and Equal Opportunity|2017-11-21

Background

In May 2015 each of the applicants was a Police Officer in the NSW Police Force.
Steven Rapisarda, Shane Housego and Christian McDonald were each Senior Constables. In 2015 Christopher Sheehy held the rank of Constable, although by August 2017 when he affirmed his affidavit for these proceedings he had been promoted to Senior Constable.
We have in these reasons referred to serving officers by their rank at the time of the events in question.
Each of Senior Constable Rapisarda, Constable Sheedy and Senior Constable McDonald were in May 2015 serving at the Newtown Local Area Command of the NSW Police Force. Senior Constable Housego was in 2015 a Senior Constable in the Central Metropolitan Region User Charges Unit.
Each of the applicants openly identified as homosexual. Senior Constables Rapisarda and Housego were in a domestic relationship.
Sergeant George Zisopoulos was the only other male Police Officer working at Newtown Local Area Command in 2015 who openly identified as homosexual. There was one female Police Officer at Newtown Local Area Command who openly identified as homosexual.
In 2015 Superintendent Simon Hardman was the Commander of Newtown Local Area Command.
On 16 April 2015 the NSW Police Drug and Alcohol Testing Unit attended Newtown to conduct random drug screening. On that occasion Constable Sheehy tested negative.
Sergeant Zisopoulos returned a non-negative result. Superintendent Hardman directed Sergeant Zisopoulos to provide a sample of his hair. Further testing of Sergeant Zisopoulos' urine sample, the results of which were received on 24 April 2015, returned a negative result for prohibited drugs.
On 16 May 2015 the tests on Sergeant Zisopoulos' hair sample were received and returned a positive result for the presence of prohibited drugs.
On or about 20 May 2015 Superintendent Hardman signed a document which became Exhibit 2 in these proceedings. Because of the significance of that document to the applicants' case it is appropriate to set it out in full: 16 April 2015 Routine Random Drug Testing occurs at Newtown LAC. Two x non-negative results to urine samples. Sgt George Zisopoulos is subjected to a hair sample also. After testing, he goes off sick. 17 April 2015 George continues his sick leave 20 & 21 April 2015 George emails himself documents re drug testing/hair samples that he has sourced from PANSW (a research paper) and from PSC (a powerpoint presentation). 21 April 2015 George confronts me and professes his innocence. 24 April 2015 Carol Donovan (PSC Drug Testing) emails all concerned that George's "…urine specimen confirmed positive for morphine, codeine and phentermine which is consistent with the medication you stated you were taking at the time of testing." "The hair sample…results are still outstanding." 27 April 2015 (estimated) Sometime around this date, it is noticed that George has shaved his head and arms. It is not known what other body parts have been shaved likewise. NB The PSC powerpoint - which appears to be a teaching aid - at slide 5 'The Hair Sample', states "…the sample should be collected from the…scalp, however, if head hair is not available, alternative collection sites can be considered, including the chest, underarm, forearm or beard." 06 May 2015 Sometime around this date (in the week or ten days following George's shave down), it is noticed that Christian McDonald and Steven Rapisarda are also sporting extremely short hair cuts (clippered with a 2-3mm guide). Underarm, forearm and chest hair is not reported on. Suspicion now develops that this is a deliberate action to avoid drug detection. Further suspicion relies upon the long established close friendships between George Zisopoulos, Steven Rapisarda & his partner Shane Housego (a former NT police employee), and Christian McDonald. To a lesser extent, Christopher Sheehy and Sian Morgan complete the close knit friendship group of homosexual like-minded NT Police. In particular, George, Steven and Christian are renowned for their behaviour when out socially together. They routinely frequent the Stonewall Hotel (Oxford Street), The Ivy (George Street) and the Beresford Hotel (Bourke Street). Surry Hills Licensing Police advise that the Stonewall is a gay venue, catering specifically to its community with events and shows. It is very well known for drug supply and drug use. The other two venues are part of Justin Hemmes' Merrivale Group and cater for the 'high end' clientele, with drug supply and use rife in both venues. Surry Hills PCT has been very successful of late by targeting the Beresford Hotel, detecting 'cocaine' use frequently. Likewise, The Ivy is very well known for 'Cocaine', 'MDMA' and 'Ice'. George, Christian and Christopher are also notorious for their promiscuity. Drug use is thought to be fundamental in such indiscriminate sexual encounters. 14 May 2015 Preliminary advice is received that George's hair sample has tested positive to illegal substances. 15 May 2015 Carol Donovan (PSC Drug Testing) provides the analysis results. In layman's terms, it appears George has tested positive to illegal stimulants 'Ecstasy' and 'Speed' - as well as GP prescribed sedatives Valium, sleeping tablets, anti-depressant/anti-anxiety medication, sleeping pills and pain killers. The GP prescribed medications have never been disclosed by George - contrary to the Drug and Alcohol Policy. Experts advise that some of those sedatives are commonly used by recreational drug users, in combination with the stimulants, to prolong the 'high' of the stimulants (ie speed provides a 3hr high when used alone, however, when combined with a sedative, a 6hr high - albeit not as high - will be achieved). 19 May 2015 In exploring this potential conspiracy to avoid drug detection by removing their body hair, I have sourced George's Police email transactions for the period of 01 April to 18 May inclusive from PSC; to see if any evidence exists there. George's 945 emails have been reviewed fully and NO direct evidence has been discovered to support the theory. 13 of the emails relate to this current matter, however, none of them are a direct exchange between these friends on the topic. Some emails relate to George's close friendship with Steven as they made plans to attend a dance party at the Ivy together on Good Friday, and attend the GLLO Conference in Goulburn together also. Interestingly, both emails and internet browsing history reveal that once he had researched drug testing and hair samples, George turned his attention to job sites and possible means of alternate employment. His behaviour here is contrary to professing his innocence to me (all of which occurs at the same time). 20 May 2015 Information is received that the friendship group interacts regularly on social media sites, where they each openly display their liking for the venues previously mentioned. Analysis of rosters indicates that George has a high frequency of requested rest days (when compared with other officers) which are usually in blocks of between 3 and 6 days. For example: George attended the Ivy dance party on 3 April 2015. George had requested the 3-5 April as days off. It is surmised, the days off after a 'big night out' are sufficient to allow drug use to leave the blood, saliva and urine - thus avoiding routine drug testing detection. This is a common phenomenon among recreational drug users. The 2015 Mardi Gras commenced on Sun 22 February. George requested 20-24 February as 5 days off. Christian requested 21 & 22 February off. Steven was on rostered days off following a block of shifts. The majority of the Mardi Gras 'big' events were held between Sat 28 February and Sunday 08 March. George and Steven both took two weeks annual leave to commence, effectively, on Sat 28 February - with George returning to work on the 17th and Steven on the 19th. Christian commenced LWOP from the same point - the weekend of the 28th. In addition, the Command has a roster request book, whereby staff can request specific days off if required. Often, individuals advise the reasoning behind their requests in that same space (eg sat/sun rest - wedding). George marks more days off than most but never offers a reason. As an example, in April, he requested the following: • Fri 2/4 to Sun 5/4 off - 3 days • Fri 10/4 to Wed 15/4 - 6 days • Sat 18/4 to Sun 19/4 - 2 days Similarly, on Fri 06 February Steven marked the request book for 'no pm shift', then took Sat 07 and Sun 08 off, before returning to work on Mon 09. This was contrary to the block rostering his team was on. Steven has also had two absences whereby he swapped a shift at the eleventh hour and worked it later in the roster rather than take any form of leave to get the day off. One on the Sunday 01/02 day shift and the other on the Wed 29/4 day shift - to then run into a requested 4 days off from Thu 30/4 to Sun 03/05 inclusive. Sick Leave analysis reveals the following: 2015 Average Sworn hh.mm George Steven Christian January 2:09 12:00 12:00 12:00 February 4:49 12:00 12:00 March 3:34 15:30 LWOP April 3:34 12:00 LWOP May Projected 3:34 24:00 12:00 TOTAL 17:40 51:30 36 36

In conclusion, in my opinion, none of these things (apart from George's test results) amount to direct evidence of drug use by the group more broadly or a conspiracy to avoid detection through the removal of body hair. At best, it is guilt by association and/or supposition based upon the anecdotal reputation of the groups' loose morals and reckless behaviours. Their shaving down/sick leave/blocking days off could be easily explained in isolation as legitimate. I cannot justify seeking targeted drug testing of anyone in the group. That said, their regular attendance at licensed premises that have significant intelligence holdings for drug trade is of concern and, even in the absence of evidence, I retain a genuine concern the group is actively involved in recreational/illegal drug use.

The structure of the Central Metropolitan Region of the NSW Police Force (which includes Newtown Local Area Command) and the procedures applicable in 2015 for the conduct of investigations into police officer behaviour were described by Inspector Hansen.
The Central Metropolitan Region is one of six regions within the NSW Police Force. It is comprised of 14 Local Area Commands and a number of operational units, including the User Charges Unit.
Each Local Area Command has a commander at the rank of Superintendent. In addition, each Local Area Command has a Professional Standards Duty Officer who is "broadly responsible for the management of complaints about police officer conduct within their Local Area Command".
Inspector Hansen noted that the conduct of investigations into police officer behaviour is the subject of detailed regulation under Part 8A of the Police Act 1990. Inspector Hansen described the legislative and administrative regime for the investigation of complaints about the conduct of police officers as follows: Complaints in the NSW Police Force … 16. Prior to 1st July, 2017 …, there were three statutory bodies with the power to investigate such complaints under the Police Act 1990, namely: (a) the Commissioner of Police (NSW Police Force); (b) the NSW Ombudsman; and (c) the Police Integrity Commission (PIC). 17. Generally speaking, if a complaint was made to the Commissioner of Police (or their delegate), it would be investigated by the NSW Police Force, and equally, if a complaint was made to the NSW Ombudsman, it would either be investigated by their office, or referred to the NSW Police Force for investigation. In particular circumstances, depending on the nature and gravity of the complaint, an investigation could (historically) have been undertaken by the PIC. 18. If the Commissioner of Police is given the responsibility to triage, assess and potentially investigate a complaint, these steps were the subject of oversight by the NSW Ombudsman. Prior to 1st July, 2017, the NSW Ombudsman held detailed statutory powers to oversight complaint handling and, to intervene in a complaint being handled by the Commissioner of Police. In particular, the NSW Ombudsman had the statutory power to: (a) disagree with a decision by the Commissioner of Police to not investigate a complaint about police officer misconduct, and force the Commissioner of Police to conduct an investigation; (b) seek more information from a complainant or third parties about a complaint of misconduct against a police officer; (c) monitor the progress of the NSW Police Force's investigation, including observing interviews of police officers and accessing the NSW Police Force's complaint files; (d) directing a matter to be re-investigated if they were not satisfied that the complaint had been properly investigated; and (e) directing the Commissioner of Police to re-consider the action to be taken as a consequence of an investigation, if the NSW Ombudsman was not satisfied with the Commissioner of Police's decision as to any action to be taken as a consequence of the investigation. 19. The statutory provisions in Part 8A of the Police Act 1990 are supplemented by NSW Police Force policies such as the NSW Police Force Complaint Handling Guidelines, which provide a policy framework for handling internal complaint matters in a manner that is consistent with the statutory regime.
The NSW Police Force Complaint Handling Guidelines were annexed to Inspector Hansen's affidavit.
Inspector Hansen stated that there is an expectation and obligation on all sworn police officers to come forward with any suspicions they may have about police officer misconduct. Inspector Hansen stated that that expectation is "enshrined in Point 10 of the NSW Police Force Code of Conduct and Ethics" which was also annexed to Inspector Hansen's affidavit. Point 10 of the Code of Conduct provides: "10 An employee of the NSW Police Force must report the misconduct of other NSW Police Force employees. All NSW Police Force employees must report misconduct. This includes criminal offences, corrupt or unethical conduct, serious mismanagement and substantial waste of public resources. Further, employees are encouraged to challenge inappropriate behaviour."
Inspector Hansen also referred to the provisions of clause 49 of the Police Regulation 2008, which required a police officer who sincerely believed that another officer had committed misconduct to report the conduct (or alleged conduct) to a more senior officer, and stated that, if an officer contravened this obligation, they would themselves face disciplinary action.
Inspector Hansen described the process for handling complaints as follows: "NSW Police Force process for handling complaints 26. Complaints about the conduct of police officers attached to LACs [Local Area Commands] within the CMR [Central Metropolitan Region] will, generally speaking, be handled by the LAC itself. Broadly speaking, the process is as follows: (a) a person (be it a member of the NSW Police Force or a member of the public) makes a complaint about the conduct of a police officer in writing to any employee of the NSW Police Force; (b) the complaint is referred to the Professional Standards Duty Officer at the LAC to which the police officer the subject of the complaint is attached. If multiple officers from multiple LACs are involved, it may be referred to the Region office; (c) the Professional Standards Duty Officer will 'triage' the complaint. This involves reviewing the complaint and making an assessment under section 132 of the Police Act 1990 [in 2015 the relevant provision was s 139] as to whether or not the complaint does, or does not, need to be investigated; (d) the Professional Standards Duty Officer refers the complaint, and their recommendation as to whether or not the complaint should be investigated, to the LAC's Complaint Management Team (CMT). The CMT is a group of senior officers within the LAC that meet for the purposes of handling complaints pertaining to officers within their LAC; (e) the CMT will make a decision as to whether or not the complaint should be investigated. If: (i) a decision is made that the complaint will not be investigated; (A) the complainant and the Law Enforcement Conduct Commission (LECC) [in 2015 the NSW Ombudsman] must be notified; and (B) if the LECC [in 2015 the NSW Ombudsman] disagrees with the decision to not investigate, they will notify the Commissioner of Police, who must then cause the complaint to be investigated, or (ii) a decision is made that the complaint will be investigated, in which case, it will be allocated to a sworn police officer within the LAC to conduct the investigation. In cases where the LAC does not have the resources to investigate the complaint, or there is an actual or perceived risk of a conflict arising if the complaint is investigated within the LAC, then the LAC may refer the investigation to Region Professional Standards Manager for consideration of other alternatives. The other alternatives may include the investigation being conducted by another Command or Specialist Unit. (f) the complaint is the subject of investigation, and as a result, findings are made as to whether or not allegations made against the subject officer are sustained or not sustained. The investigating officer submits their investigation report and findings to the Professional Standards Duty Officer where it is reviewed prior to submission to the 'delegate' for ratification of the investigation and outcomes. The 'delegate' is the Commander (Superintendent) of the LAC; (g) the outcome of the investigation is presented to the CMT, who will then either accept or reject the certified findings of the investigation report. If the findings are rejected, the investigation is re-submitted to the investigator to address any deficiencies. If the findings are accepted, the complaint file and findings are then provided to the subject officer's Commander for final sign-off and any decision on reviewable or non-reviewable action to be taken against the subject officer (in cases where 'sustained' findings of misconduct are made). 27. As the Professional Standards Manager (PSM) at CMR, there are various times when complaints will be referred to my office. These include: … (b) where the CMT at a LAC refers the complaint to the CMR, which they may do in the interest of probity or to avoid an actual or perceived conflict of interest; ... (d) where the complaint relates to the Commander of the LAC, or another senior officer who may be part of the CMT at their LAC; or (e) where the complainant is the Commander of the LAC, as they are obliged under the statutory provisions I have referred to earlier in my affidavit to report misconduct to a more senior officer, and as Superintendents of Police, a senior officer is an officer at the rank of Assistant Commissioner or above. 28. Where a complaint is referred to the CMR, it will ultimately be briefed to me as the Professional Standards Manager. I will then put the complaint on the agenda for the CMT at CMR to consider. The CMT at CMR is generally comprised of me, Assistant Commissioner Walton and my Executive Officer. The CMT at CMR will then endorse one of the following recommendations: (a) refer the complaint for investigation by a different LAC within the CMR. This could occur for many reasons, but for example, it may be so referred to assist a LAC in managing a conflict of interest; (b) CMR will agree to conduct the investigation internally within the CMR office. This will only occur on rare occasions, as my office has limited resources available to conduct investigations; (c) CMR will refer the complaint for consideration of investigation by the NSW Police Force Professional Standards Command (PSC). 29. PSC is a specialist Command whose sole focus is to uphold the professional standards of members of the NSW Police Force, including conducting independent investigations into misconduct by sworn and unsworn officers. All LACs and the CMR can issue a 'Request for Assistance' to PSC, asking them to conduct a Part 8A investigation of an allegation where this would assist the LAC or CMR in managing a conflict, or where the investigation will require resources that are not available at the LAC or CMR."
Similar evidence was given by Detective Superintendent Kerrie Lewis. DS Lewis suggested that it was the triage form and not the complaint itself that would be submitted to the Complaint Management Team for consideration as to whether the complaint should be investigated.
The document signed by Superintendent Hardman (Exhibit 2) was forwarded by Superintendent Hardman, Inspector Michael Dykes and Inspector Damien Goodfellow to Central Metropolitan Region. Those three officers constituted the "complaint management team" at Newtown Local Area Command.
At Central Metropolitan Region the document was referred to Detective Superintendent Lewis who was the officer at Central Command's complaint management team with the delegated authority to accept the "request for assistance" and investigate the complaint or to decline it and remit it to Newtown.
The complaint was brought before the complaint management team on 28 May 2015. Detective Superintendent Lewis gave evidence that at that meeting, the allegations made in the complaint were taken at face value (that is not subject to any enquiries to establish the veracity of the allegations) and the complaint management team made a recommendation, which she endorsed, that the complaint be investigated.
A complaint file was then prepared and the matter was allocated to Detective Senior Constable Martin Kiernan for investigation under the supervision of Detective Inspector Glen Browne.
Detective Senior Constable Kiernan was an investigator attached to the Professional Standards Command. The Professional Standards Command gave the investigation of the complaint concerning the applicants, together with a complaint relating to Sergeant Zisopoulos, the name "Strike Force Andro".
DSC Kiernan gave evidence that every investigation conducted by the Professional Standards Command Complaints Management Team is given a Strike Force name.
DSC Kiernan obtained some advice from the Drug and Alcohol Unit of the Professional Standards Command, who are responsible for co-ordinating random and targeted drug testing of Police Officers in New South Wales, about the type of drug testing they could undertake.
DSC Kiernan took no further action until mid-September 2015. He explained that delay on the basis that the only line of enquiry worth pursuing was drug testing and by reason of the suggestion that Senior Constables Rapisarda and McDonald had cut their hair short, he wished to leave time for their hair to re-grow in order that hair samples could be taken if that proved appropriate.
In September 2015 DSC Kiernan obtained the upcoming rosters for Newtown Local Area Command and the Central Metropolitan Region User Charges Unit.
DSC Kiernan approached Ms Carol Donovan at the Drug and Alcohol Unit and asked if random drug testing could be conducted at the relevant locations on one of a range of dates which DSC Kiernan had identified as being dates on which each of the applicants was rostered to perform duties at their respective Commands. Ms Donovan provided information concerning testing which had been undertaken, from which DSC Kiernan ascertained that Senior Constable McDonald had been tested at Newtown Police Station in August 2015 and returned a negative result. DSC Kiernan asked Ms Donovan to arrange testing at Newtown Police Station on 5 October 2015, when DSC Kiernan had identified that Senior Constable Rapisarda and Constable Sheehy were rostered on duty.
On 5 October 2015 random drug testing was undertaken at Newtown Police Station and both Senior Constable Rapisarda and Constable Sheehy were tested. Both returned negative results.
On 8 October 2015 DSC Kiernan asked Ms Donovan to arrange for random testing to occur at Central Metropolitan Region User Charges Unit. Senior Constable Housego was tested and returned a negative result.
DSC Kiernan took the view that this testing was sufficient to finalise his investigation and informed Detective Inspector Browne of that conclusion. Detective Inspector Browne agreed. Detective Inspector Browne informed DSC Kiernan that as a matter of procedural fairness he should advise the subject officers of the investigation.
DSC Kiernan contacted Senior Constable Rapisarda on 16 November 2015 and informed him of the investigation and that it was proposed that the allegation made against him would not be sustained.
On 17 November 2015 DSC Kiernan separately called Senior Constable Housego and Constable Sheehy to inform them of the allegation against them and the proposed not sustained finding in respect of the allegation.
On 3 December 2015 DSC Kiernan called Senior Constable McDonald and informed him of the allegation that had been made and the proposed not sustained finding.
DSC Kiernan finalised his investigation reports on 30 December 2015 and recorded a finding that the allegations against each of the applicants had not been sustained. The investigation reports were duly endorsed by Detective Inspector Browne, Detective Superintendent Lewis and the Professional Standards Command Complaints Management Team.
On 18 November 2015 Constable Sheehy had a meeting with Superintendent Hardman at which Constable Sheehy raised the fact that he had become aware a complaint had been made against him. Constable Sheehy gave evidence that he was told by Superintendent Hardman that it was an anonymous complaint. Constable Sheehy said to Superintendent Hardman "I would hate to think this is because I am gay and have been seen in the same light as George. I hardly drink and I don't take drugs."
In December 2015 the applicants spoke to one another and identified that they had each been subject to the investigation. The applicants sought access to the investigation file but it was not provided.
After the commencement of these proceedings and after applications were made by the applicants under the Government Information (Public Access) Act 2009 (NSW), the applicants received a copy of Exhibit 2 with Detective Superintendent Hardman's signature redacted. It was only on the second day of the hearing that the identity of Superintendent Hardman as the author of Exhibit 2 was disclosed to the applicants (although it may be surmised that the applicants had already anticipated that Superintendent Hardman was the author of the document).
In November and December 2015 each of the applicants took sick leave and submitted Workcover certificates.
On 13 January 2016 Constable Sheehy prepared and signed a statement for use in relation to a workers compensation claim in which he set out the conversation he had had with Superintendent Hardman on 18 November 2015.
On 14 January 2016 Superintendent Hardman submitted a complaint to Professional Standards Command alleging breach of the Surveillance Devices Act 2007 (NSW) by Constable Sheehy. Superintendent Hardman asserted that, in the course of the investigation of Constable Sheehy's workers compensation claim, an investigator, Ms Lynskey, had spoken to Superintendent Hardman concerning the investigation and had asked "Is it legal for Police officers to record each others' conversations?" Superintendent Hardman recorded that Ms Lynskey had explained that: "While interviewing Christopher Sheehy, that morning, he had provided very accurate quotes by making reference to tape recorded conversations that he had stored in his mobile telephone handset. He did so when speaking of Inspector Macey and an incident of up to 18 months (or more) ago. He also did so when speaking of me [Superintendent Hardman] and a meeting we had in November 2015."
In the complaint of 14 January 2016 (which became Exhibit 3) Superintendent Hardman made the allegation that Constable Sheehy had used his telephone to record private conversations with Superintendent Hardman on 18 November 2015 and that Constable Sheehy had referred to that recording when providing a statement to Ms Lynskey on 13 January 2016.
The investigation of that complaint was accepted by the Complaints Management Team and the investigation was allocated to Detective Sergeant Anthony Volpe, an officer attached to St George Local Area Command.
On 16 February 2016 DS Volpe contacted Ms Lynskey and on 17 February 2017 conducted a formal interview with Ms Lynskey as part of his investigation. As recorded in DS Volpe's Investigator's Report: "Ms Lynskey stated categorically that at no time was an audio recording played back in her presence. For certain comments the interviewee [Constable Sheehy] looked at his phone and appeared to read directly from it, but at no stage did she hear any audio being emitted from it." DS Volpe found the complaint not sustained.
Constable Sheehy was informed of that outcome on 2 April 2016.
In January 2016 the applicants consulted a solicitor, Mr Stewart of Dowson Turco, Lawyers. Thereafter, in correspondence with Mr Reid of the Office of General Counsel, NSW Police, Dowson Turco raised the suggestion that there may have been breaches of the Anti-Discrimination Act 1977 (NSW).
In particular, in a letter dated 29 April 2016 enclosing applications by the applicants for the disclosure of information pursuant to the Government Information (Public Access) Act 2009 (NSW), Mr Stewart referred to previous correspondence and stated: "In that correspondence we have raised our clients' various concerns about possible maladministration by Superintendent Simon Hardman while in the position of Commander at Newtown Local Area Command. Those concerns appear particularised, inter alia, as breaches of the Work Health and Safety Act 2011 and Anti-Discrimination Act 1977. Those potential breaches concern the improper use of public resources to systematically target our clients because of their sexual orientation."
Mr Stewart further stated: "In the interests of abundant clarity our clients are concerned that public resources were inappropriately, and perhaps even unlawfully, expended in pursuit of a falsehood which stems from a discriminatory allegation made by Superintendent Hardman."
Mr Stewart asked that Mr Reid provide "the list of actions that have been taken to investigate the serious concerns brought to your attention".
The Office of General Counsel took the view that the letter of 29 April constituted a complaint in writing of alleged misconduct against Superintendent Hardman and referred the letter to Inspector Craige Hansen, the Professional Standards Manager for the Central Metropolitan Region. Inspector Hansen undertook a process of triaging the complaint and concluded that an investigation of the complaint was not required or warranted. The Complaints Management Team responsible for the complaint comprised Inspector Hansen, then Assistant Commissioner Fuller and an Executive Officer. Inspector Hansen gave evidence that he prepared a draft letter advising that the complaint had been triaged but declined for investigation and that letter was signed by Assistant Commissioner Fuller on 24 May 2016.
That letter set out extracts from Mr Stewart's letter of 29 April 2016 and concluded: "With regard to your complaint issues against Superintendent Hardman: Discrimination of L/S/Con Rapisarda as a result of his sexual orientation; Discrimination of Con Sheehy as a result of his sexual orientation; Discrimination of S/Con Housego as a result of his sexual orientation; Discrimination of "former" S/Con McDonald as a result of his sexual orientation; Possible maladministration, including the improper use of public resources. All of these matters have been declined pursuant to section 141(1)(a). I am satisfied that the complaint investigations P1501954 and P1600351 were appropriate in the circumstances and each have been subject to various review upon finalisation. I understand that you have also been instructed to pursue other avenues, such as Government Information (Public Access) Act (GIPAA) applications.
As in force in 2016, section 141(1)(a) of the Police Act 1990 (NSW) provided that: "In deciding whether a complaint should be, or does not need to be, investigated, the Commissioner or Ombudsman may have regard to such matters as he or she thinks fit, including whether, in his or her opinion: 1. Action has been, is being or will be taken to remedy the subject matter of the complaint without the need for an investigation."
On 22 February 2016 Constable Sheehy applied to be considered for the prosecutions command in the NSW Police Force. This involved an application to undertake the prosecutor's education programme. Senior Constable Sheehy gave evidence that on 3 May 2016 he attended a panel interview for consideration for entry into the programme. He was not successful.
At this time Constable Sheehy was working at Eastern Beaches Local Area Command having just returned to work from sick leave. On Constable Sheehy's application, Acting Sergeant Northam, his team leader, recorded "Application supported. Appears to be a suitable candidate." Under that comment Superintendent Hardman wrote: "Sheehy started at Eastern Beaches on 15.02. One week later this comment is offered by an A/Sgt?!"
The form provided for Superintendent Hardman to provide his own comments as Constable Sheehy's commander. Superintendent Hardman stated: "Const Sheehy has 3 yrs 10 mths service, all at Newtown, predominantly in GD's [general duties] with some PCT rotation [Pro-active Crime Team]. At best, I would describe him as an 'average' performer. Recent sick leave, for a psychological illness, and his current return to work program demonstrates a considerable lack of resilience. In current circumstances, I do not support this application and I do not recommend him to you."
Constable Sheehy asserts that his lack of success in this application was a consequence of the two complaints against him and Superintendent Hardman's adverse comments. This was alleged to constitute victimisation of Constable Sheehy by Superintendent Hardman by reason of the fact that Constable Sheehy had raised the possibility that complaints had been made against him because he was homosexual.

The Applicants' complaints

On 22 September 2016 Mr Stewart on behalf of each of the applicants lodged a complaint of homosexual discrimination under section 49ZH(2)(c) of the ADA with the President of the NSW Anti-Discrimination Board. Mr Stewart attached to the complaint a factual statement of each of the applicants. The factual statements are generally consistent with their affidavits filed in these proceedings.
On 28 March 2017 the President referred the complaint to the Tribunal for public hearing under section 93C of the ADA on the basis that she had "endeavoured to resolve the complaint by conciliation but conciliation has not been successful".
In accordance with directions of the Tribunal, the applicants filed Points of Claim on 24 May 2017 and the respondent filed Points of Defence on 25 September 2017. The respondent by leave filed Amended Points of Defence at the hearing.

The Points of Claim

By the Points of Claim the applicants raise three discrete allegations of discrimination. The first complaint is: 9. The Applicants claim they were targeted for investigation, including drug testing and other measures known as Operation "Andro" because they are homosexual men (the drug investigation). 10. The Applicants claim that the Respondent discriminated against them within the meaning of discrimination on the ground of homosexuality set out in s.49ZG of the Anti-Discrimination Act 1977 (NSW) (the Act). 11. The Applicants claim that the Respondent's drug investigation contravened s.49ZH of the Act because, on the ground of homosexuality the Respondent: (a) failed to afford them a safe workplace; (b) concocted criminal allegations against them; (c) fabricated evidence against them; (d) targeted them for investigation; (e) exposed them to ridicule, abuse, bullying and harassment; (f) injured the Applicants' access to opportunities for promotion, transfer or training, or to any other benefits associated with employment; and (g) otherwise subjected the Applicants to a detriment.
The second complaint alleged that Constable Sheehy was victimised in contravention of s 50 of the ADA because of his request for information about the drug investigation, including requests for information about the grounds for the investigation.
In paragraph 13 of the Points of Claim, Constable Sheehy alleged that: Sheehy claims that the victimisation was in the form of complaints being generated against him while he was on leave and as a consequence of Sheehy alleging discrimination or as a consequence of the Respondent suspecting that Sheehy intended to make a formal complaint of discrimination including starting legal proceedings against the Respondent. Sheehy claims the Respondent contravened s 50 of the Act in this regard.
The third discrimination claim by all the applicants is that the respondent's conduct in refusing to investigate their original complaint that they had been the subject of discrimination, constituted by the letters Mr Stewart sent to the respondent in the period leading up to 23 May 2016 and by the letter of 23 May 2016, was discrimination on the ground of homosexuality contrary to s 49ZG of the ADA and was a contravention of s 49ZH of the ADA because "on the ground of homosexuality the respondent discriminated in relation to the terms and conditions of the employment it afforded the applicants and subjected the applicants to a detriment".

Clarification of the First Complaint

It is convenient at this point to address one issue concerning the nature of the first complaint that arose in the course of oral submissions.
In particulars provided in respect of the first discrimination complaint the applicants stated that Superintendent Hardman had made homophobic remarks and comments in the lead up and following the drug testing and investigation.
In their evidence before the Tribunal each of the applicants gave evidence of conduct by other officers that they suggested demonstrated that there was a homophobic culture at Newtown Local Area Command under Superintendent Hardman.
Senior Constable Rapisarda stated that he overheard officers talking about victims and offenders, referring to them as "gay cunts", "faggot", "lezzo". He described an incident in 2013 when a male victim came to the station to report being assaulted and who was effeminate and was crying. Senior Constable Rapisarda described other officers mimicking the victim's voice and laughing.
Senior Constable Rapisarda also gave evidence that Inspector Dykes said things to him in front of other Police officers such as "hurry up Rapisarda, get your skirt on" and "you big girl". Senior Constable Rapisarda suggested Inspector Dykes would speak to him in an effeminate tone "mimicking an homosexual stereotype".
Senior Constable Rapisarda described another occasion in 2014 in which Inspector Dykes said to him in relation to the execution of a search warrant "The bloke is one of your kind. They've got him for a whole lot of child porn." When asked by Senior Constable Rapisarda "What do you mean one of my kind?" Senior Constable Rapisarda alleged Inspector Dykes responded "You know, he's gay".
Constable Sheehy gave evidence that the common terminology and phrases used around the station included "faggot", "poofter", "gay cunt", "gay as AIDS", "homo", "hommus" and "eat a dick". Constable Sheehy also stated that he heard Police colleagues and officers and senior management "make derogatory and insensitive remarks regarding members of the [LGBTQI] community, particularly towards trans-gender persons, cross-dressing persons and homosexuals". Constable Sheehy stated that Newtown Police officers would avoid attending the Imperial Hotel in Erskineville because it is known as an LBGTQI friendly bar, making statements such as that they didn't want to go because there are always "trannies" and "guys in arseless chaps".
Constable Sheehy stated that he had been rostered to assist GLLOs (gay and lesbian liaison officers) in responding to protests concerning an incident involving a trans-gender female notwithstanding that he was not GLLO- trained. He asserted that he was directed to undertake the task because he was gay.
Constable Sheehy also gave evidence of Inspector Macey speaking dismissively of Senior Constable McDonald's manner of speech.
Senior Constable McDonald gave evidence that he had experienced homosexual harassment and prejudice at Newtown Police Station. In particular he identified incidents involving Superintendent Hardman: 1. On one occasion Superintendent Hardman used the word "pansy" in referring to Senior Constable McDonald when speaking to other people. 2. In 2012 Superintendent Hardman when referring to a request by Senior Constable McDonald to assist with the "Splendour in the Grass" music festival had said words to the effect "splendour in your arse". 3. When Senior Constable McDonald had injured himself falling over in the dark on the way to work, Superintendent Hardman had said "you should be used to having your head down arse up in the concrete".
Senior Constable McDonald also asserted that Inspector Dykes had made "daily negative comments about gays and the gay community, bullying in the form of embarrassing me in front of my colleagues and using my sexuality to make fun of me".
Senior Constable McDonald gave evidence that in 2015 Inspector Dykes said to him, in expressing his opposition to same sex marriage, "It disgusts me and it will never be OK".
Senior Constable Housego was posted at Newtown Local Area Command between May 2007 and October 2012. He gave evidence that he also heard derogatory comments such as "poof" and "faggot" uttered by Police at Newtown Police station in 2012 and described one incident in which another officer had stated in relation to a gay complainant reporting a gay domestic violence assault "I told him to pull his head in and work it out man to man. I sent him away without taking a report".
In their written submissions the applicants sought to describe their complaints as follows: 10. In respect to s.49ZH(2)(a) of the Act, an employer owes a duty to take reasonable care to ensure the safety of its employees. That duty is implied into every contract of employment, and bullying and harassment is recognised as a particular hazard that an employer has a duty to minimise [citing Waters v Commissioner of Police [2000] 1 WLR 1607]. Where an employer is aware of a danger that another employee might post to fellow employees, and the employer does not do anything about the activities, the employer is in further breach of the duty [citing Hudson v Ridge Manufacturing Company Limited [1957] 2 All ER 229]. 11. In respect of s.49ZH of the Act, the Applicants contend that the Respondent failed to afford them with access to a safe workplace and access to a safe system of work that was free from bullying and harassment; and/or denied them access to training, transfer and promotion because of the Applicants' homosexuality; and, in the case of the applicant McDonald, constructively dismissed him from his employment. The Applicants contend that these failures were the result of their sexual orientation as homosexual men. 12. The Applicants further contend that the Respondent encouraged or condoned a culture of bullying and harassment that ultimately gave rise to: A. within the first complaint of discrimination the actions of: (i) Superintendent Hardman, in making the Complaint and then assessing, triaging and escalating the Complaint to the CMR; (ii) Inspectors Goodfellow and Dykes, who signed off on the assessment, triaging and escalation of the Complaint to the CMR; (iii) (then) Assistant Commissioner Fuller, the then Commander of the CMR, who authorised and approved the Complaint for investigation; and (iv) the PSC who conducted the investigation of the Complaint, including in a discriminatory manner. B. within the second complaint of discrimination, that the Respondent, primarily through the actions of (then) Assistant Commissioner Fuller, failed to take appropriate action to investigate and remedy the bullying and harassment subject of the first complaint of discrimination, despite being aware that the investigation had been proceeded from the bigotry that is explicitly recorded in the written Complaint [see Exhibit 2]. 13. In respect of s.49ZG(1) of the Act, the Applicants contend that the Respondent discriminated against each of them by treating them less favourably than their heterosexual colleagues who: were not bullied or harassed by reason of their sexuality (including by neither being targeted for false allegations of drug use, nor being investigated in a manner that departed from standard investigatory practice): and, who would not have been ignored and/or victimised if they reported the alleged misconduct.
The respondent submitted that the claim as so elucidated is a new case not incorporated within the Points of Claim. The respondent also submitted that the complaint referred by the President of the Anti-Discrimination Board to the Tribunal under s 95 of the ADA defines the jurisdiction of the Tribunal. The respondent submitted that the complaint referred by the President in the case of each of the applicants was in respect of the specific period from 15 May 2015 onwards, that is after the incidents of homophobic conduct referred to in the applicants' affidavits.
The respondent further submitted that in any event "the conduct alleged in the affidavits of the applicants refers to a series of isolated incidents but do not demonstrate a regular pattern of conduct that could properly be characterised as 'bullying'".
The applicants submitted in reply that the Points of Claim do include an allegation that the respondent failed to afford a safe workplace and exposed them to ridicule, abuse, bullying and harassment and submit that: "The applicants' evidence, upon which the above particulars are based, was also filed and served well in advance of the hearings. In the applicants' submission the particulars and evidence served on the respondent sufficiently detailed the claims addressed in the Outline of Closing Submissions such that there has been no reformulation of their case."
We accept the respondent's submission that the case as outlined in paragraphs 10 to 13 of the applicants' outline of submissions is not one encapsulated within the Points of Claim. As the respondent points out, the Points of Claim do not contain allegations that the respondent encouraged or condoned a culture of bullying and harassment. Moreover, the allegations in the Points of Claim that the respondent failed to accord a safe workplace and exposed the applicants to ridicule, abuse, bullying and harassment are specifically said to arise from the drug investigation.
The purpose of Points of Claim in the Tribunal is, as with pleadings in a Court, to define the issues so that the parties understand in advance of the hearing the case they are expected to meet. To permit the applicants to raise a case not fairly encapsulated within the Points of Claim would not be fair to the respondent and we will not consider the applicant's case outlined in paragraphs 10-13 of the applicant's outline of submissions.
In any event, we also accept the respondent's submission that the conduct outlined in the applicants' various affidavits does not establish the existence of a culture of bullying and harassment of the applicants, or any of them individually, on the basis of their homosexuality. The evidence as outlined above referred to isolated incidents over a number of years and, whilst not to be condoned, it cannot in our view amount to unlawful discrimination by the respondent on the grounds of homosexuality contrary to ss 49ZG and 49ZH of the ADA.
Mr Eurell of counsel, who appeared for the applicants, sought to rely on the examples of homophobic conduct on the part of other officers identified in the applicants' affidavits as evidence of the circumstances in which Superintendent Hardman prepared and submitted the complaint (Exhibit 2) and as evidence of prejudice against the applicants by reason of their homosexuality, on the part of Superintendent Hardman. We will address the evidence in that context in due course when we come to consider whether Superintendent Hardman's act of submitting the complaint was carried out on the ground of the applicants' homosexuality.
We note that only three incidents the subject of evidence by Senior Constable McDonald specifically involved Superintendent Hardman. None of the other incidents of which the applicants gave evidence involved conduct of Superintendent Hardman, nor was he said to have been present at the time of the incidents or shown to have been aware of them.

The Respondent's Defence

The respondent raised a number of matters by way of defence to the applicants' claim. As summarised in paragraph 9 of the respondent's submissions they were: 9. In summary: (a) In relation to both the First Discrimination Claim and Further Discrimination Claim [1] : (i) the Applicants have not identified a comparator (whether real or hypothetical) in the same circumstances or in not materially different circumstances such as to enable any demonstration that they were treated "less favourably" within the meaning of s 49ZG(1) of the AD Act; (ii) the Applicants have not been treated "less favourably"; (iii) the Applicants have not shown that the Respondent has treated them less favourably on the ground of homosexuality; (iv) the things complained of by the Applicants do not concern employment in the NSW Police Force, which has the consequence, given s 4B of the AD Act, that the Respondent is not to be taken to have determined or done anything complained of by the Applicants. (b) in relation to the Further Discrimination Claim, at the time of making the complaint, Mr McDonald had ceased employment; (c) in relation to the Victimisation Claim: (i) Mr Sheehy's "requests for information about the drug investigation, including the grounds for the investigation" is not a ground upon which a person may be victimised under s 50(1) of the AD Act. (ii) Mr Sheehy had not done any act within the meaning of s 50(1) of the AD Act; (iii) Mr Sheehy has not been subjected to any detriment; (iv) Mr Sheehy has not been subjected to any detriment on a ground in s 50(1); (d) the Respondent did not, for the purposes of ss 4B(2) and 53(1) of the AD Act, "authorise" the acts of Superintendent Simon Hardman or other relevant police officers alleged to have engaged in unlawful acts; (e) the making of the complaints comprised in Exhibit 2 and Exhibit 3 [the complaint against Constable Sheehy regarding the alleged use of a recording device] is not behaviour that is unlawful pursuant to s 54 of the AD Act because the complaints were necessary for compliance with cl 49 of the Police Regulation 2008 (NSW) (as in force at the time Exhibit 2 was created) and cl 50 of the Police Regulation 2015 (NSW) (as in force at the time Exhibit 3 was created); (f) even if the Respondent has engaged in unlawful discrimination or victimisation, by s 213 of the Police Act 1990 (NSW) (Police Act), the Respondent is not liable for any injury or damage caused to the Applicants because each of the matters complained of was an act of a member of the NSW Police Force, in good faith, of a function conferred or imposed by the Police Act; and (g) the Applicants have not shown that they have suffered any damage.
It is convenient to address the complaints by reference to the issues identified in the Points of Defence.
However, before we do so, it is appropriate to deal with two matters which arose in the course of the hearing.

The Operation of Part 8A of the Police Act

As we have noted above, the conduct of investigations into police officer behaviour is regulated by Part 8A of the Police Act. Part 8A, consisting of sections 121 - 172, is headed "Complaints about conduct of police officers, administrative employees and the NSW Police Force". It is necessary to take note of two specific provisions in part 8A of the Police Act, the operation of which affected the conduct of these proceedings.
Section 169A of the Police Act provides: 169A Identity of complainant not to be disclosed A member of the NSW Police Force must not disclose to any person the identity of a complainant unless the disclosure is made: (a) In accordance with guidelines established by the Commissioner, or (b) with the consent of the complainant, or (c) in accordance with a requirement of or made under this or any other Act, or (d) for the purposes of any legal proceedings before a court or tribunal.
Section 170 of the Police Act provides: 170 Certain documents privileged (1) A document brought into existence for the purposes of this Part is not admissible in evidence in any proceedings other than proceedings: (a) that concern the conduct of police officers, and (b) that are dealt with by the Commissioner, by the Industrial Relations Commission or by the Supreme Court in the exercise of its jurisdiction to review administrative action. (2) Subsection (1) does not apply to or in respect of: (a) a document comprising a complaint, or (b) a document published by order of, or under the authority of, the Presiding Officer of a House of Parliament or either House, or both Houses, of Parliament, or (c) a document that a witness is willing to produce. (3) Subsections (1) and (2) do not operate to render admissible in evidence in any proceedings any document that would not have been so admissible if this section had not been enacted.
As we have noted above, it was only on the second day of the hearing that the applicants were given access to an unredacted copy of Exhibit 2 which disclosed that the complaint had been prepared and signed by Superintendent Hardman. The police officers who gave evidence in the respondent's case (specifically Detective Senior Constable Kiernan) had "anonymised" the identity of Superintendent Hardman in their affidavits.
The respondent submitted that s 169A prohibited the disclosure of the identity of Superintendent Hardman as the complainant in respect of Exhibit 2.
The respondent further submitted that, even if s 169A did not prohibit the disclosure of the identity of the author of Exhibit 2, the Tribunal nevertheless had a discretion to prohibit disclosure of the name of the informant and that, by reason of the principles of public policy relating to the identity of informants, the identity of the author of Exhibit 2 should not be disclosed.
We heard argument on the questions so raised on the first day of the hearing and, for reasons then given, determined that the identity of the author of Exhibit 2 should be disclosed.
The provisions of s 170 had a greater impact on the proceedings. A number of witnesses called by the respondent referred to documents in their affidavits which they indicated were documents "brought into existence for the purposes of Part 8A of the Police Act". The witnesses did not annex those documents to their affidavits and in each case stated: "As a consequence the document is inadmissible under s170 of the Police Act 1990, and I am not willingly producing these documents. This is consistent with the NSW Police Force policy of not releasing complaint information or documents from investigation files where no sustained finding is made against a subject officer."
Section 170 was the subject of consideration by Davies J in Beckett v State of NSW (No. 3) [2013] NSWSC 791. At [46] - [51] his Honour stated: 46 The Plaintiff also relied on s 170(2)(c) concerning documents that a witness is willing to produce. The Plaintiff submitted that the word "witness" could not be construed as being a reference to the Commissioner of Police simply because he had the custody and possession of the files. Rather the "witness" would be a reference to the person who made the statement that constituted the document brought into existence for the purposes of Part 8A of the Act. The Defendant submitted that the Commissioner was the witness. 47 In Jean Luc Clavel [Jean Luc Clavel v John Savage (No 3) [2010] NSWSC 5] a similar situation arose as in the present case although that case concerned production by reason of a subpoena. Rothman J said: [13] The purpose of s 170 of the Act is plainly to protect from use in a court (other than specified tribunals and for specified and related purposes) those documents that are brought into existence for the purpose of a complaint against a Police Officer. While ever such a document retains that status (i.e. it may have or acquire another purpose) it may not be admitted into evidence. The Commissioner, unless she or he is a witness, does not even have the capacity to waive that protection. 48 Whilst I accept that the last sentence concerning the Commissioner was made in passing it provides support for the view that the witness referred to in s 170(2)(c) is the person who made the statement or document in respect of which privilege is claimed and not the Commissioner simply because he is the Defendant or the recipient of a subpoena. In the present case he is neither. The only relevance of the Commissioner of Police in the present matter arises from the suggestion that he (on behalf of the State of New South Wales) has possession and custody of the complaint files. 49 In my opinion, and adopting a purposive approach to the legislation, a reference to a witness in s 170 must be a reference to the person who made the statement or created the document in respect of which privilege is claimed. The section is likely to have been intended to provide some protection for people making complaints or giving evidence in support of complainants. That purpose would not be advanced if it was the Commissioner who could decide to give consent to the use of some other person's document. Nor could the Commissioner (as Rothman J noted in Clavel at [13]) waive the privilege. 50 It would be for the person asserting the exception to the privilege established by s 170(1) to demonstrate that any relevant witness is willing to produce an otherwise privileged document. I do not consider that anything said in Re Southland Coal Pty Ltd (Recs and Mgrs apptd) (in Liq) [2006] NSWSC 899; (2006) 203 FLR 1 at [14] is inconsistent with this. Austin J said there: (c) Onus - The party claiming privilege bears the onus of establishing the basis of the claim and the party seeking production does not bear the onus of excluding privilege (Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 at 337; ASIC v Rich [2004] NSWSC 1089 at [2]; In the matter of Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 543 at [24]). The party claiming privilege must establish the facts from which the court can determine that the privilege is capable of being asserted (National Crime Authority v S (1991) 100 ALR 151 at 159). The facts are to be proved on the balance of probabilities (Evidence Act, s 142). 51 In the present case the Defendant has demonstrated that it has the privilege by virtue of s 170(1). Sub-s (2) provides exceptions to that privilege. In my opinion the onus is on the party asserting an exception because, ordinarily in civil cases, a party is not required to disprove a negative.
Detective Sergeant Volpe, who was responsible for the investigation of the complaint against Constable Sheehy concerning his alleged use of a recording device, was asked during cross-examination whether he would voluntarily produce a number of documents which he had prepared in the course of that investigation. DS Volpe stated that he was willing to produce the documents. In those circumstances the provisions of s 170 did not preclude their admission into evidence and the Investigation Log, Investigation Plan and Investigator's Report prepared by DS Volpe became Exhibits 20, 21, and 22 respectively.
Senior Constable Kiernan, who investigated the complaint against the applicants, Exhibit 2, and Inspector Hansen, who investigated the complaint by the applicants against Superintendent Hardman, were not willing to produce documents they had prepared in the course of those investigations. Other documents contained in the investigation files in respect of the three complaints could not be voluntarily produced, as the authors of the documents either could not be identified or did not give evidence before the Tribunal.
The outcome, that witnesses were able to refresh their memories from documents which could not be called for and tendered in evidence, and upon which they could not effectively be cross-examined, might be thought to be somewhat anomalous. However, no objection was taken to the witnesses giving evidence based upon documents which could not be tendered in evidence, and the Tribunal was not called upon to determine whether fairness would have required that such evidence be excluded.

The Tender of the decision of the Industrial Relations Commission in Zisopoulos v Commissioner of Police or paragraphs from that decision

In the course of closing submissions, Counsel for the applicants sought to tender as part of their case, a number of paragraphs from the decision of the Industrial Relations Commission in Zisopoulos v Commissioner of Police [2018] NSWIRComm 1011. By that decision, delivered on 7 March 2018, Commissioner Murphy upheld Sergeant Zisopoulos' application for review of the decision of the Commissioner to remove Sergeant Zisopoulos from the police force and ordered Sergeant Zisopoulos' reinstatement.
Mr Eurell identified the paragraphs of the decision said to be relevant to these proceedings as paragraphs 3, 4, 11, 23(2), (3) and (10), 29 to 31, 46, 81, 110 to 114, 142, 159, 160, 177, 180 and 189. Mr Eurell explained what the applicants submitted was the relevance of the decision on the basis that the tendered paragraphs indicated that there was a risk of cross-contamination from exhibits relating to drug seizures undertaken by the police and that: "[E]mployees of the respondent [Commissioner] have conducted studies at the time that it took the hair test and received the results from the laboratory knowing that the work environment from which the likes of George Zisopoulos worked are ripe for contamination and that where the results, the conclusive results of a negative urine test are combined with low readings from a hair test, that contamination is to be more readily concluded." and "[W]here an investigation starts to pursue a line of enquiry designed to inculpate or reach a conclusion that the applicants were drug users when the knowledge already in the possession of the respondent which Mr Hardman could quite easily have obtained would suggest that there was an innocent explanation in circumstances where Mr Zisopoulos was known to be working in an environment where he had contact with drugs and where the respondent's experts knew that given the results of the urine test and the low readings in the hair test he was likely contaminated."
Mr Eurell conceded that there was "no part of [the Industrial Relations Commission] decision that goes directly to the question was Superintendent Hardman motivated by homosexual prejudices or stereotypes at the time the complaint [Exhibit 2] was made". However Mr Eurell submitted that the knowledge of the police officers disclosed in the decision, of the possibility of cross-contamination, "puts into context what actually should have happened in the course of this investigation, had there been any regard at any point in time to the existing holdings of the NSW Police Service". Mr Eurell submitted that that evidence gave "some indication or insight into what would have happened if [the applicants] were not homosexual".
The Tribunal indicated in the course of the hearing that it rejected the tender and indicated that reasons would be given in the final decision.
The reason for the rejection of the tender of the decision, and the identified paragraphs of the decision, was that the relevant paragraphs which Mr Eurell sought to suggest were relevant in these proceedings were entirely directed to the explanation for Sergeant Zisopoulos' hair sample results. There is no basis in the decision to found any submission that Superintendent Hardman, at the time he prepared the complaint, Exhibit 2, was aware of the possibility of cross-contamination or any other explanation for the results of the urine and hair sample testing of Sergeant Zisopoulos.
In our view, evidence of what other officers in the police force may have known or understood or of information that might have been available to Superintendent Hardman had he sought it out, does not in any way affect the assessment which the Tribunal is required to undertake as to whether the conduct of Superintendent Hardman was on the ground of the applicants' homosexuality. That decision must be determined by reference to what it can be shown or inferred that Superintendent Hardman knew and what may be inferred from the evidence before the Tribunal as to Superintendent Hardman's motivations. No part of the decision of the Industrial Relations Commission had any potential relevance to those questions and for that reason the tender of the identified paragraphs of the decision was rejected.
We now turn to address the applicants' claims. The background to the applications which we have set out at [4] - [60] above was not controversial and those paragraphs represent our findings in respect of the matters set out.

Did the conduct of which the applicants complain occur on the ground of their homosexuality?

Discrimination on the ground of homosexuality is defined in Section 49ZG of the ADA as follows: 49ZG What constitutes discrimination on the ground of homosexuality (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of homosexuality if the perpetrator: (a) on the ground of the aggrieved person's homosexuality or the homosexuality of a relative or associate of the aggrieved person, 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 who he or she did not think was a homosexual person or who does not have such a relative or associate who he or she thinks was a homosexual person, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not homosexual persons, or who do not have a relative or associate who is a homosexual person, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's homosexuality if it is done on the ground of the person's homosexuality, a characteristic that appertains generally to homosexual persons or a characteristic that is generally imputed to homosexual persons.
As the High Court held in Purvis v New South Wales (2003) 217 CLR 92 (especially at [160]-[161] and [222]-[225]) the definition requires that, to establish discrimination on a prohibited ground (in Purvis, disability, in the present case, homosexuality), a "comparator" be identified, that is, relevantly in this case, a person in circumstances that are the same or not materially different (who was not homosexual or believed to be homosexual) who would not have been treated in the same way.
It is not necessary that an actual comparator be identified, a "hypothetical comparator" may be posited. Nevertheless, to succeed, the applicants must establish that the relevant comparator would not have been treated in the same way.
At the first level, in relation to their primary complaint, the applicants submit that Superintendent Hardman would not have lodged a complaint against a non-homosexual police officer.
The difficult question is, what characteristics must the hypothetical non-homosexual police officer have in order that the circumstances be not materially different.
The applicants submitted, effectively, that the relevant comparator was a male heterosexual police officer stationed at Newtown LAC and that it was enough, to establish that the lodgement of the complaint (Exhibit 2) was on the grounds of the applicants' homosexuality, that no heterosexual police officers were the subject of any complaint.
Mr Eurell referred to Employment Services Australia v Poniatowska [2010] FCAFC 92 where the Full Court of the Federal Court upheld the finding of the trial Judge that the dismissal of a female employee, which the trial Judge found occurred by reason of the employee's complaints of sexual harassment, was "on the ground of her sex despite the fact there was no evidence concerning how such a complaint from a male employee would have been addressed." The trial Judge inferred in the circumstances that a male employee who had made such complaints would not have been dismissed.
That decision clearly stands as authority for the propositions: first, that it is not necessary to identify an actual comparator, it is sufficient to hypothesise a comparator; and secondly, that it is permissible to reach conclusions in relation to the way in which the comparator would have been treated, by way of inference from all the circumstances, without direct evidence of the way in which persons of a different sex (or who are not homosexual) were treated.
We do not accept Mr Eurell's submission that it is sufficient that no heterosexual male officers were the subject of complaint. In our view the applicants' submissions identify the comparator too broadly.
The respondent on the other hand submitted that the relevant comparator was a male police officer stationed at Newtown who was not homosexual but had all the other characteristics which Superintendent Hardman referred to in Exhibit 2 as characteristics which the applicants possessed.
The respondent's written submissions did not attempt to identify the relevant comparator. In oral submissions Mr Fernon SC, who appeared with Mr Seck for the respondent, although maintaining that it was not for the respondent to identify the comparator, submitted that the relevant comparator would be a heterosexual male police officer, associated by friendship with Sergeant Zisopoulos, who had frequented premises known for drug use, was promiscuous, had been observed to have adopted a short haircut and had requested specific days off to ensure there were blocks of several days when they were not required to work.
We will consider the correct identification of the relevant comparator below. Before doing so it is convenient to consider whether the applicants' homosexuality was a reason for the complaint being made against them. The answer to that question will inform the question whether the applicants were treated differently in that a complaint would not have been lodged against a relevant comparator.
The complaint against the applicants (Exhibit 2) was signed by Superintendent Hardman. The respondent did not suggest that Superintendent Hardman was not the author of that document. Superintendent Hardman did not give evidence in these proceedings.
The applicants did tender a statement of Superintendent Hardman in relation to a workers compensation claim lodged by Senior Constable Rapisarda (Exhibit 16). The statement was signed by Superintendent Hardman on 6 January 2016. In relation to the matters the subject of these proceedings the statement relevantly states as follows: "21. In May 2015, I received an allegation regarding suspected involvement in illicit drug use. I referred that allegation, which related to the Claimant [Senior Constable Rapisarda] and three other officers to the Professional Standards Command, for their consideration. A complaint investigation, conducted by that command, followed. It resulted in a not sustained finding. The Claimant was advised of this in November 2015."
Having referred to the fact that Senior Constable Rapisarda had been "the subject officer in a number of complaints", Superintendent Hardman stated: "24. I reject the assertion that the Claimant is being targeted due to his sexual orientation. I am adamant that any and all actions taken with regard to the Claimant, in his time at Newtown LAC (with me), have been in strict accordance with the NSW Police Force's Policies and Procedures; many of which have been oversighted by other offices and departments. All actions should be considered legitimate management action. 25. If his assertion is that he is being targeted due to his sexual orientation, I am deeply offended by that. There are a large number of homosexual employees at Newtown LAC and I have never been the subject of such a spurious claim."
To the extent that Superintendent Hardman in paragraph 21 of that statement suggested that he had "received an allegation regarding suspected involvement in illicit drug use…which related to [Senior Constable Rapisarda] and three other officers" we observe that Superintendent Hardman may be thought to have been not been entirely candid, as it is quite apparent from Exhibit 2 that Superintendent Hardman did not receive any complaint concerning the four applicants but rather lodged the complaint himself. Nevertheless the statement, which was tendered by the applicants, does contain a generalised assertion by Superintendent Hardman that he did not "target" Senior Constable Rapisarda by reason of his sexual orientation.
That is evidence to be brought to account in our consideration. Apart from that evidence, in the absence of direct evidence from Superintendent Hardman, the Tribunal is left to determine the question whether the applicants were treated less favourably by reason of their homosexuality on the basis of inferences to be drawn from the evidence, in particular the complaint, Exhibit 2, itself.
In that context the fact that Superintendent Hardman did not give evidence, and no explanation was proffered by the respondent for the failure to call him, permits the application of the principle usually referred to as the rule in Jones v Dunkel (1959) 101 CLR 298, that his evidence would not have assisted the respondent and enables the Tribunal more readily to draw inferences adverse to the respondent available from other evidence.
Because Superintendent Hardman has not given evidence to explain the reasoning behind the lodgement of the complaint, we can only assess the reason for the lodgement of the complaint on the basis of the contents of the complaint itself. In undertaking that task it is necessary to have regard both to the document as a whole and to the individual propositions set out in the document.
Both the terms in which the complaint is expressed and evidence concerning the accuracy of the assertions in it are relevant to the determination of the reason for the preparation and lodgement of the complaint.
The fact that Superintendent Hardman did not give evidence to explain the thought processes or motivations behind the preparation of Exhibit 2 does not cast an onus on the respondent to provide an explanation for the making of the complaint, which led to the investigation of the applicants. The onus of proof remains upon the applicants to establish the elements of their complaint on the balance of probabilities. As Fullager J stated in Department of Health v Arumugan [1988] VR 319 at 330: "If all that is proved, by inference or otherwise, in the absence of explanation, is less than all the elements of proof required for the complaint to succeed, neither a total absence of explanation nor a non-acceptance of an explanation can by itself provide an element of proof required. It can enable already available inferences to be drawn against dishonest explainers with greater certainty, but that is all."
The respondent referred to the summary of the relevant principles in relation to drawing inferences in discrimination cases to prove the causal link between protected status and less favourable treatment in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]: 70 The exercise of drawing inferences was discussed in detail by this Tribunal, differently constituted, in Hafez v Warilla Women's Refuge Ltd & Ors [1997] NSWEOT, in A v B [1997] NSWEOT, and in Edwards. The authorities canvassed in those decisions, and in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, identify the following considerations in the drawing of inferences: i. a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts ii. an inference must be reasonably drawn on the basis of the primary facts iii. an inference can be drawn from a combination of facts, none of which viewed alone would support that inference. iv. iv. a fact relied on as the basis of an inference need not be proved to the requisite standard of proof iv. it is not enough that the inference is a mere possibility: it must be one of "probable connection" v. the inference must be a logical one, and not supposition vi. an inference cannot be made where more probable and innocent explanations are available on the evidence.
The respondent also submitted that the seriousness of the allegations made by the applicants brought into play the "higher degree of persuasion of the mind" as identified in Briginshaw v Briginshaw (1938) 60 CLR 336. The respondent submitted that "in large part the case is based on allegations that Superintendent Hardman made a false complaint on the ground of homosexuality" and submitted that "such allegations are serious in nature and reflect heavily on the character of Superintendent Hardman".
We accept the gravity of the allegations made and that the Tribunal is required to take into account the seriousness of the allegation and other relevant factors before determining whether it is satisfied on the balance of probability that the allegation has been proved.
As the Appeal Panel of the Administrative Decisions Tribunal held in Dutt v Central Coast Area Health Service [2003] NSWADTAP 3 at [15] and [17], referring to the Judgment of Smith J in State of Victoria v McKenna (1999) 140 IR 256 at [37]: "The principles discussed in Briginshaw apply generally in all civil proceedings and to all issues". That is: "In the sense that the seriousness of the allegation and other relevant factors are to be taken into account before determining whether the Tribunal is satisfied 'on the balance of probabilities' that an allegation has been proved. The matters to be taken into account are 'the nature and consequence of the facts to be proved including the seriousness of an allegation made, the inherent unlikelihood of a given description, and the gravity of the consequences flowing from a particular finding."
However we do not consider that for the applicants to succeed it must necessarily be the case that Superintendent Hardman knowingly made a false report. The intention or motive to discriminate on a prohibited ground is not a necessary element of unlawful discrimination under the ADA and equivalent statutes in other jurisdictions: Waters v Public Transport Corporation (1991) 173 CLR 349 at 359.
All that is required is that the complaint, Exhibit 2, was made against the applicants on the ground of their homosexuality, that is that in circumstances that were the same or not materially different such a complaint would not have been made against a Police officer who was not homosexual. The ADA does not require that Superintendent Hardman was explicitly conscious that his report was false or unwarranted. What is required is that, consciously or unconsciously, there was a relevant causal connection between his preparation and submission of the complaint and the homosexuality of the applicants. Nor need it be the case that the homosexuality of the applicants was the only reason for the making of the complaint: ADA s 4A.
We accept that an allegation that a Police officer was, even unconsciously, motivated to single out the applicants by reason of their homosexuality is a serious allegation, and we accept that we are required to be comfortably satisfied that the preparation of the report was on the ground of the applicants' homosexuality before the first complaint can succeed.
The respondent correctly submitted that the drawing of an inference requires that the circumstances appearing in the evidence "do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture": Bradshaw v McEwan (1951) 217 ALR 1 at 5 to 6.
The respondent further submitted that: "an adverse inference may not be drawn to the effect that conduct occurred on the ground of a particular status or prohibited ground unless there is sufficient evidence to reject all innocent explanations for the conduct."
For that proposition the respondent relied upon State of Victoria v McKenna at [42]. That case is not authority for that proposition. The correct position as set out in State of Victoria v McKenna at [42] is that, having regard to the existence of racism (and, we interpolate, prejudice against homosexual persons) in the community, an inference might arise that race (or homosexuality) was a factor in the choice: "if, after an analysis of the proven facts, the initial inference of racial discrimination remains open and the innocent explanations offered are rejected, it is not clear to me why the inference should not normally be drawn".
As Anderson J held in KLK Investments Pty Ltd v Riley (1993) 10 WAR 523 at 527, where an allegation of racial discrimination was founded, in part, on the fact that a person of Aboriginal descent had been evicted from a bar after an altercation with a non-Aboriginal person who was not evicted: "There may be circumstances in which to evict one but not the other may raise a positive inference of racial discrimination, but the circumstances would have to be such as to fairly raise in an unsuspicious mind the inference of racial discrimination as the probable explanation for the different treatment".
In the consideration of the evidence concerning the preparation and submission of the complaint against the applicants (Exhibit 2) a significant factor is the description by Superintendent Hardman of the applicants, Sergeant Zisopoulos and Sian Morgan as a "close knit friendship group of homosexual like-minded NT Police".
The explicit reference to the applicants' sexuality is a matter which would fairly raise in an unsuspicious mind the likelihood that the applicants' sexuality was, at least in part, a factor in the inclusion of each of them in the complaint.
The respondent suggested that the reference to "homosexual like-minded NT police" was merely a description of the relevant officers. We do not find that argument persuasive. The respondent did not suggest any reason why, if the sexuality of the applicants was not an element in the reasoning by which the applicants were jointly made the subject of the complaint, the description was necessary in the context of the complaint.
The respondent's written submissions referred to evidence given by Detective Inspector Browne in cross-examination that "If I'm investigating, for example, a homosexual murder then homosexual relationships and associates would be relevant" and submitted that the relevance of the applicants' homosexuality "is no different". We do not accept that submission.
After DI Browne gave that evidence he was asked by Mr Eurell: "Q. Of course they will be because two-thirds of every homicide are committed by somebody who knows the victim so you're always going to go and look at the associates aren't you? A. That's right. Q. We're not talking about that category of case are we? A. No."
The respondent does not point to any connection between Sergeant Zisopoulos' non-negative drug test and his homosexuality. In the absence of such a connection, DI Browne's comparison is not apt.
In our view the use of the term "homosexual like-minded NT police" suggests a process of reasoning, not necessarily conscious, by which the four male homosexual Police officers at Newtown and the domestic partner of one of them were presumed to be engaged in drug use by reason of their homosexuality. Even if a reference to the applicants' sexuality were to be regarded as merely descriptive, the use of the term "like-minded" is explicable only as indicative of the drawing of a conclusion about the applicants' behaviour from the fact that they were homosexual.
The respondent submitted that the fact that Sian Morgan was included within the description but not the subject of the complaint is inconsistent with the applicants' homosexuality having been the "motivating factor behind the complaint". We do not accept that submission. Constable Morgan was female. Although the reference to Constable Morgan might diminish the strength of the inferences otherwise to be drawn from the use of the term "homosexual like-minded NT Police", it cannot be said to be inconsistent with the inference that the complaint was made against the male homosexual police officers by reason of their homosexuality. It is common knowledge that community prejudice ascribes different stereotypes to male homosexuals and female homosexuals. The different treatment of a female homosexual does not necessarily indicate anything about whether male homosexuals are being treated in a particular way by reason of their homosexuality
In considering whether there is an "innocent explanation", that is an explanation that does not involve the applicants' homosexuality, for the lodgement of the complaint against four male homosexual police officers, specifically identified as "homosexual like-minded NT police", it is appropriate to identify the separate matters relied upon in the document as justifying the "suspicion" or "genuine concern" that each of the applicants was using prohibited drugs.
It is possible to identify eight specific matters:

First, the assertion that sometime around 6 May 2015 "it is noticed that Christian McDonald and Stephen Rapisarda are also sporting extremely short haircuts (clippered with a 2-3 millimetre guide)".
Secondly, the "long established close friendships between George Zisopoulos, Stephen Rapisarda and his partner, Shane Housego … and Christian McDonald" and the proposition that "to a lesser extent Christopher Sheehy and Sian Morgan complete the close knit friendship group of homosexual like-minded NT police".
Thirdly, that Sergeant Zisopoulos and Senior Constables Rapisarda and McDonald are "renowned for their behaviour when out socially together".
Fourthly, that they routinely frequent The Stonewall, The Ivy and The Beresford, The Stonewall being a well-known gay venue "well known for drug supply and drug use", The Ivy and The Beresford "catering for the 'high-end' clientele, with drug supply and use rife in both venues".
Fifthly, that Sergeant Zisopoulos, Senior Constable McDonald and Constable Sheehy were "notorious for their promiscuity" and the suggested corollary that "drug use is thought to be fundamental in such indiscriminate sexual encounters".
Sixthly, the fact that some emails found on Sergeant Zisopoulos' email account "relate to George's close friendship with Stephen as they made plans to attend a dance party at The Ivy together on Good Friday and to attend the GLLO conference in Melbourne together".
Seventhly, information "received" that "the friendship group interacts regularly on social media sites, where they each openly display their liking for the venues previously mentioned". (Emphasis added)
Eighthly, four matters relating to rostering: 1. That Sergeant Zisopoulos and Senior Constable McDonald sought days off the first weekend of the 2015 Mardi Gras (noting that Senior Constable Rapisarda was rostered off for the same days) 2. Sergeant Zisopoulos and Senior Constable Rapisarda taking two weeks annual leave to commence the week of the Mardi Gras 'big events' during the period when Senior Constable McDonald had taken leave without pay 3. The fact that Senior Constable Rapisarda marked a request for a block of two and a half days off contrary to his team's block roster and on two occasions swapped a shift at the "eleventh hour" to get blocks of four days off 4. The fact that each of Senior Constable Rapisarda and Senior Constable McDonald took above average sick leave.

The evidence concerning the allegations in Exhibit 2

The applicants led evidence to establish that a number of the allegations in Exhibit 2 were not warranted.
Senior Constable Rapisarda gave evidence that, prior to the events the subject of these proceedings, he was not friends with Constable Sheehy or Senior Constable McDonald. They worked on different teams and different roster cycles. He was not friends with them on social media. Senior Constable Rapisarda stated that he was friends with Sergeant Zisopoulos and that when they socialised together they would normally do so at bars popular within the LGBTI community.
Senior Constable Rapisarda gave evidence that he and Sergeant Zisopoulos were and remained friends on social media. He stated that he used social media to communicate with family overseas and friends interstate and that as far as he could recall there was only one occasion that photographs were posted of him and Sergeant Zisopoulos on Facebook. He did not use Facebook to communicate with Sergeant Zisopoulos.
Senior Constable Rapisarda gave evidence that he and Sergeant Zisopoulos worked on different teams at Newtown and Senior Constable Rapisarda's team followed Sergeant Zisopoulos' team in the roster cycle which meant they very rarely had blocks of days off together or worked together.
Senior Constable Rapisarda stated that LGBTI-friendly venues were "safe places for homosexuals to congregate and socialise. They are places where we are free from the risk of harassment, intimidation or violence". Senior Constable Rapisarda disputed that LGBTI-friendly venues were patronised by drug suppliers or drug users.
Senior Constable Rapisarda gave evidence that he does not use prohibited drugs.
Senior Constable Rapisarda also provided to the Tribunal a bundle of photographs which became Exhibit 12. The photographs were identified by Senior Constable Rapisarda as being photographs of himself taken on various dates from 2012 to December 2015 and in particular, photographs from 15 April 2015 to May 2015.
The photographs disclose that Senior Constable Rapisarda maintained a relatively short haircut but not one that could be described as "extremely short" or having been "clippered with a 2-3 millimetre guide". In particular in a photograph dated 2 May 2015, that is 5 days after Superintendent Hardman recorded in Exhibit 2 that Sergeant Zisopoulos had shaved his head and arms and shortly prior to the date, 6 May 2015, when Superintendent Hardman recorded that it had been noticed that Senior Constable Rapisarda was "also sporting [an] extremely short haircut (clippered with a 2-3 millimetre guide)", Senior Constable Rapisarda appears to have his hair cut to a length longer than 2-3 mm and of similar length to other photographs taken during 2015. In cross-examination Senior Constable Rapisarda commented that on 2 May 2015 his hair was "probably a little bit on the long side" and accepted that he was "due for a haircut".
Senior Constable Rapisarda gave evidence that he had a haircut every three to four weeks. Senior Constable Rapisarda was cross examined about the dates attached to the photographs and explained in detail in relation to each photograph how he identified the relevant dates. We accept that the photographs in Exhibit 12 were taken on the dates identified.
Senior Constable Rapisarda agreed that he would have had a haircut between the photographs taken on 2 May and 15 June 2015. It was not put to Senior Constable Rapisarda that in the week after 2 May 2015 he had cut his hair extremely short or "clippered with a 2-3 millimetre guide".
In cross-examination Senior Constable Rapisarda identified the LGBTI-friendly venues that he and Sergeant Zisopoulos had socialised at as, in particular, The Stonewall Hotel, The Columbian, The Oxford Hotel and The Midnight Shift Bar and acknowledged that he and Sergeant Zisopoulos would socialise at bars popular within the LGBTI community. Senior Constable Rapisarda agreed that on occasion he and Sergeant Zisopoulos attended The Beresford Hotel but stated that he had never attended The Ivy before 2016.
Senior Constable Rapisarda gave evidence that Sergeant Zisopoulos had asked him to go to The Ivy on Good Friday in 2015, but he had said no because he was working that weekend.
Senior Constable Rapisarda's evidence in cross-examination included the following: Q. Would you accept that the Stonewall Hotel is a hotel known for drug supply and drug use? A. I would probably, in answer to that, I couldn't tell you because I don't know the, the details of whether it's a drug supply or drug use, I don't partake in drug supply or drug use, I definitely haven't seen drug supply or drug use in the times that I visited there but I would say in my experience as a police officer of 15 years that throughout Sydney the drug or at least drug use for that matter, not supply, is prevalent in most licensed premises and I wouldn't be saying that it was specific to one location.
In re-examination, Senior Constable Rapisarda gave evidence that as well as drinking with Sergeant Zisopoulos on occasions he also socialised and went drinking with heterosexual Police officers from Newtown Local Area Command, none of whom had been the subject of any complaint of drug use.
Senior Constable Housego gave evidence that he had limited social contact with Sergeant Zisopoulos and that he was friends with him on social media but was also friends with many other Newtown Police officers and staff. He was not friends with Senior Constable McDonald or Constable Sheehy.
Senior Constable Housego gave evidence that he did not take drugs.
In cross examination Senior Constable Housego gave evidence that although he was in a long-term stable relationship with Senior Constable Rapisarda, he did not go out with him all the time as he was older than Senior Constable Rapisarda. He gave evidence that he did go to gay venues but not often and that in 2015 he had had social contact with Sergeant Zisopoulos but only through Senior Constable Rapisarda. In terms of venues, Senior Constable Housego agreed that he had been to The Stonewall prior to May 2015, The Beresford Hotel only on Sunday afternoons and that he had been to The Ivy once but that was after the "investigation period", that is after the complaint of potential drug use had been finalised.
Senior Constable McDonald gave evidence that he was in Sergeant Zisopoulos' team at Newtown and socialised with him on occasion but in the context of work functions involving other members of Newtown LAC. Senior Constable McDonald gave evidence that he was friends with Sergeant Zisopoulos on social media.
Senior Constable McDonald stated that he did not have a friendship with Senior Constable Rapisarda outside of work and did not work with him at Newtown. Senior Constable McDonald stated that he did not have anything to do with Senior Constable Housego and did not know him at the time of the investigation. He was aware that Senior Constable Housego was in a long-term relationship with Senior Constable Rapisarda. He stated that he had never socialised with either Senior Constable Rapisarda or Senior Constable Housego.
Senior Constable McDonald stated that he was a friend of Constable Sheehy and that they had socialised in the past at gay bars in Darlinghurst. Senior Constable McDonald stated that he does not use prohibited drugs and had not witnessed any of his friends or associates using prohibited drugs.
Senior Constable McDonald gave evidence that he was overseas in March and April 2015. He produced a bundle of photographs which became Exhibit 17. With one exception those photographs were taken between 2 March 2015 and December 2015. The exception was a photograph that was identified as appearing on a social media site on 28 May 2015 but was a "time hop" photograph which had been taken some time previously.
The photographs included one taken on 11 April 2015 and one taken on 9 June 2015. The photographs taken in March and April 2015 show Senior Constable McDonald with a relatively short haircut but not clipped to 2 to 3 millimetres. The photograph taken on 9 June 2015 shows the side of Senior Constable McDonald's head with a relatively short haircut possibly fitting the description, "clippered with a 2-3 millimetre guide", but the top of Senior Constable McDonald's head, where other photographs suggest Senior Constable McDonald generally wears his hair longer, is not visible.
In cross examination Senior Constable McDonald gave evidence that he had socialised with Constable Sheehy in gay bars in Darlinghurst including The Stonewall Hotel and The Beresford but never The Ivy. He had done so on several occasions but not frequently. Senior Constable McDonald gave evidence that he used Facebook for keeping in touch with friends and family overseas which did not include Constable Sheehy.
Constable Sheehy gave evidence that his relationship with Sergeant Zisopoulos was professional and that he had nothing to do with him until he commenced working on the same team in 2012. He did not have anything to do with Sergeant Zisopoulos outside of work. From September 2014 when he ceased to work on the same team as Sergeant Zisopoulos he had had nothing to do with him. He stated that he was friends with Sergeant Zisopoulos on social media "in the same way I am friends with most of Newtown station, including several Sergeants". Constable Sheehy was friends with Senior Constable McDonald on social media.
Constable Sheehy stated he was never friends with Senior Constable Rapisarda, that he knew nothing about him other than the fact he was in a relationship with Senior Constable Housego and he had no interest in socialising with him. He was never friends with Senior Constable Housego and did not recall ever having had a conversation with him. Constable Sheehy stated that he was friends with Senior Constable McDonald and became friends soon after starting at Newtown LAC but they did not "hang out much outside of work".
In cross-examination Constable Sheehy gave evidence to the effect that he was not a close friend of Senior Constable McDonald and that, particularly after December 2014, he had moved house and become more isolated from the city and "almost ceased any face to face interaction with him outside of work".
Constable Sheehy specifically rejected the assertions that he was promiscuous or had loose morals and was a person of reckless behaviour. In re-examination, and over objection by Mr Fernon, Constable Sheehy gave evidence that throughout 2015 and before, he socialised with other Police officers who were heterosexual and stated that the large majority of his friends were heterosexual.
The respondent did not seek to contradict the evidence of the applicants outlined above and did not put to any of the applicants that their evidence was inaccurate or false. We accept the evidence of each of the applicants.
The respondent led evidence of leave rosters for Sergeant Zisopoulos, Senior Constable Rapisarda and Senior Constable McDonald. The respondent submitted that the rosters disclosed that Sergeant Zisopoulos regularly avoided being rostered to work on weekends between January and May 2015. The respondent identified six weekends during that period when Sergeant Zisopoulos sought not to be rostered on weekends and noted that, out of 20 weekends between 1 January 2015 and 20 May 2015, Sergeant Zisopoulos only worked on five weekends.
The rosters disclosed that Senior Constable Rapisarda also made six requests not to work on weekends between January 2015 and May 2015 and only worked on ten weekends between 1 January 2015 and 20 May 2015.
The rosters disclosed that Senior Constable McDonald worked on five of eleven weekends when he was not on annual leave or leave without pay during that period. Senior Constable McDonald's evidence was that he had travelled to England during that time.
Out of 20 weekends between 1 January and 20 May 2015 Sergeant Zisopoulos and Senior Constable Rapisarda were both rostered off together on nine weekends.
The respondent also tendered extracts from the leave request book from Newtown LAC. Those extracts recorded what the respondent described as: "regular occasions where Mr Zisopoulos and Mr Rapisarda sought to avoid being rostered on the same shifts, and in some cases, with the requests seemingly recorded in the same handwriting, suggested it was made by one of the men with the knowledge and concurrence of the other".
We note that the observation concerning handwriting is in fact applicable only to three requests entered in the diary for 3, 4 and 5 January 2015.
The respondent submitted that the "thrust of the analysis of the leave records in Exhibit 2 is borne out by the evidence of the leave records themselves". That is correct to some degree but it may be noted that Senior Constable McDonald's application for leave without pay to visit his partner's family in England to commence from 1 March 2015 was approved by Superintendent Hardman in December 2014. The proposition implicit in Superintendent Hardman's comment in Exhibit 2 "Christian commenced LWOP from the same point - weekend of the 28th" following the reference to Sergeant Zisopoulos and Senior Constable Rapisarda having taken two weeks annual leave for Mardi Gras, that the three officers' taking of leave was connected, was unfounded and Superintendent Hardman should have known that fact.
The applicants reply submissions responded as follows: "The submissions…concerning the applicants' rosters are an ipso facto quasi analysis that was never put to the applicants for comment in cross examination."
The applicants also relied upon evidence of Detective Senior Constable Kiernan that there was nothing in the rosters which supported the allegation of drug taking.

Conclusions regarding the evidence concerning the allegations in Exhibit 2

The evidence indicates, and we accept, that Senior Constable Rapisarda did not have an extremely short haircut at the relevant time. The evidence with respect to Senior Constable McDonald is more equivocal. But it was not suggested to him in cross-examination that he had cut his hair extremely short shortly before 6 May 2015.
We also note that the evidence of the applicants was that they did not utilise social media to communicate other than with family. It is difficult to understand on what basis Superintendent Hardman might have formed the view that the applicants "interact regularly on social media sites where they each openly display their liking for the venues referred to", that is the venues referred to Exhibit 2. The respondent did not produce any evidence of screenshots, printouts or other records of the social media sites so referred to.
The evidence before the Tribunal suggested that there was nothing unique or exceptional about the venues identified in Exhibit 2 other than that some of them were "gay-friendly" or frequented by the LGBTI community.
Senior Constable Rapisarda gave evidence that, in his experience as a Police officer of 15 years throughout Sydney, drug use is prevalent in most licensed premises. The respondent did not seek to contradict that evidence.
Detective Superintendent Lewis agreed in cross examination that it is "hardly suspicious that Police officers, whether they be heterosexual or homosexual would keep their hair short". She agreed that homosexual Police officers taking days off to attend Mardi Gras is not suspicious.
As noted above, the evidence also indicates that Superintendent Hardman was aware that Senior Constable McDonald had taken leave without pay to visit his husband's family in England. The suggestion that there was ground for suspicion in Senior Constable McDonald having taken leave without pay at the same time as Sergeant Zisopoulos and Senior Constable Rapisarda had taken leave during Mardi Gras was not well founded, and we infer that Superintendent Hardman was aware of that fact.
In general the evidence of the applicants also indicates that the applicants and Sergeant Zisopoulos were not a "close knit friendship group".
There is nothing in Exhibit 2 or elsewhere in the evidence to suggest that there was any sound basis for the suggestion that Sergeant Zisopoulos, Senior Constable McDonald and Constable Sheehy were "notorious for their promiscuity". In the absence of any support for that proposition, we consider that that assertion and the following statement "Drug use is thought to be fundamental in such indiscriminate sexual encounters" reflects stereotypical assumptions concerning homosexual men rather than any well-founded belief on the part of Superintendent Hardman.
Mr Fernon submitted that what was relevant was not the actual facts and characteristics of the applicants but Superintendent Hardman's belief in relation to those facts and that there was no evidence that Superintendent Hardman did not genuinely believe the statements set out in Exhibit 2.
We accept the respondent's submission that the relevant question is not whether the propositions set out in Exhibit 2 were accurate but whether Superintendent Hardman believed them to be accurate. However in circumstances where the evidence tends to suggest that Superintendent Hardman must have been aware that some of the assertions were not accurate - that is the length of Senior Constable Rapisarda's hair, the reason for Senior Constable McDonald taking leave without pay and the suggestion that the applicants interacted regularly on social media sites where they openly displayed their liking for venues such as The Stonewall, The Ivy and The Beresford - we are unable to accept that Superintendent Hardman had any proper basis beyond prejudice against homosexual men for holding a genuine concern that the applicants were "actively involved in recreational/illegal drug use". Our conclusion in this regard is reinforced by (but not dependent upon) the evidence of such prejudice on the part of Superintendent Hardman in the comments he made to Senior Constable McDonald set out at [78] above.
We note that the only issue raised in Exhibit 2 concerning Senior Constable Housego is that he is the domestic partner of Senior Constable Rapisarda. The only assertions relating to Constable Sheehy were that he is "to a lesser extent a member of the close knit friendship group of homosexual Police at Newtown" and that he was "notorious for his promiscuity".

Did the preparation and submission of Exhibit 2 occur on the ground of homosexuality?

We are comfortably satisfied that the only reason Constable Sheehy was included in the complaint was that he was a homosexual male Police officer serving at Newtown Police Station. We note that Constable Sheehy was subject to a random drug test and passed at the same time as Sergeant Zisopoulos returned a non-negative result. We are comfortably satisfied that a heterosexual Police officer, even one believed to be "notorious for his promiscuity", would not on that basis have been made the subject of a complaint. Constable Sheehy's only other stated connection to Sergeant Zisopoulos and the other applicants was that he was a "homosexual like-minded person".
We are comfortably satisfied that the only reason Senior Constable Housego was included in the complaint was that he was the domestic partner of Senior Constable Rapisarda, and a male homosexual police officer.
Although each of the matters relied upon in Exhibit 2 were said to be applicable to Senior Constable Rapisarda, and all but one were said to be applicable to Senior Constable McDonald, we consider that the inclusion of Constable Sheehy and Senior Constable Housego in the complaint, along with the reference to "homosexual like-minded NT police", is sufficient to give rise to the inference that Superintendent Hardman was motivated, consciously or unconsciously, to make the complaints against Senior Constables Rapisarda and McDonald by reason of their homosexuality. As noted above, that inference is more easily drawn in the absence of evidence from Superintendent Hardman.
We are comfortably satisfied that Superintendent Hardman would not have included in the complaint a heterosexual Police officer who was associated by friendship with Sergeant Zisopoulos, who attended licensed venues known for drug supply and drug use, who had short hair, had higher than average sick leave and had made a special request for two and a half days off contrary to his team block roster and on two occasions swapped a shift at the last minute in order to obtain a block of time off.
No individual Police officer with those characteristics who was not the subject of the complaint has been identified, but we draw the inference, that such an officer would not have been the subject of the complaint, from the matters outlined above, in particular the inclusion of two officers who were not close friends with Sergeant Zisopoulos, the reference to "homosexual like-minded Newtown Police" and the three specific respects in which we consider Superintendent Hardman would have been aware that the statements set out in Exhibit 2 were not accurate. We are reinforced in this conclusion by Senior Constable McDonald's evidence of three instances of homophobic conduct involving Superintendent Hardman. We do not consider that the incidents attested to by each of the applicants which did not involve Superintendent Hardman carry any weight in this context.
Accordingly we find that Superintendent Hardman's preparation and submission of the complaint did take place on the ground of the applicants' homosexuality.

Did the subsequent investigation of the complaint occur on the ground of homosexuality?

Insofar as the applicants assert that the decisions taken at various levels in the NSW Police hierarchy to investigate the complaint were taken on the ground of the applicants' homosexuality, in our view the applicants have not established that case.
Detective Superintendent Lewis gave evidence that the complaint was assessed by her, as delegate for the respondent, on the basis that the allegations made in the complaint were taken at face value, that is without investigation.
Detective Superintendent Lewis gave evidence that she considered the fact that Senior Constable Housego was Senior Constable Rapisarda's domestic partner and Constable Sheehy was an associate of the other applicants was sufficient to warrant investigation of those two officers, regardless that there were no other suspicious circumstances identified in respect of those officers. We accept that evidence, as descriptive of DS Lewis's state of mind, but we consider it indicates that, once the complaint was referred to Central Command from Newtown LAC (by Superintendent Hardman acting with Inspector Dykes and Inspector Goodfellow as the Complaint Management Team), no real assessment of whether there was sufficient justification to warrant an investigation of each of the applicants occurred.
The initial complaint having been made on the ground of the applicants' homosexuality, the consequences of that investigation were caused by and consequential upon the initial discrimination. We are not persuaded on the evidence before us that any decision made by any officer after the submission of the complaint to Central Command occurred on the ground of the applicants' homosexuality.
The second complaint of discrimination relates to alleged victimisation of Constable Sheehy. It is convenient to defer consideration of this complaint and deal first with the third complaint, which is common to all applicants.

Did the refusal to investigate the applicants' complaint occur on the ground of their homosexuality?

The applicants' third complaint is that the respondent declined to investigate their complaint (constituted by Mr Stewart's letters including the letter of 23 May 2016) on the ground of their homosexuality.
As we have noted above, Mr Stewart's letters were treated as a complaint of police misconduct and allocated to Inspector Hansen, who prepared a letter declining to investigate the complaint which was signed by then Assistant Commissioner Fuller.
In his affidavit Inspector Hansen gave evidence that he had concluded that an investigation into the complaints was "not required or warranted for several reasons" which he identified as: 1. That particulars supplied by the applicants in connection with their complaint were "entirely insufficient, and would have made it very difficult for any investigator to pursue clear and sensible lines of enquiry, particularly into the broad assertion that Superintendent Hardman had engaged in maladministration"; 2. Each of the NSW Police Force investigations into the applicants had already been "oversighted" by the NSW Ombudsman who "raised no issues or concerns with the complaints that were made, the manner in which they were investigated, or the findings that were reached"; 3. He had "conducted a review of each of the complaint investigation files relating to [the applicants] including the further complaint regarding Sheehy. I was satisfied that the allegations, investigations and findings in respect of each investigation were all appropriate"; and 4. Mr Stewart had made it clear that the applicants "either were or would be, pursuing other claims including applications for documents under the Government Information (Public Access) Act 2009 (NSW). Further it seemed likely, given the tenor of [Mr Stewart's] correspondence, and the fact that it was directed toward [the Office of General Counsel], that [the applicants] either could or would be making some other form of legal claim/s against the NSW Police Force."
In cross examination Inspector Hansen acknowledged that there had been no other instance in his time in his role as Professional Standards Manager that he had received a complaint that a Police officer had fabricated evidence and made a false allegation and he had declined to investigate that allegation.
Inspector Hansen also gave evidence that he had not in the course of his management of Mr Stewart's complaint reviewed Superintendent Hardman's complaint (Exhibit 2). Inspector Hansen was cross examined to suggest that the explanations given in the letter of 24 March for the decision not to investigate the applicants' complaint were either not accurate or insufficient. It was not suggested to Inspector Hansen that the reason he made the recommendation that the complaint not be investigated was the homosexuality of the applicants.
The applicants, with some justification, submit that the reasons given by Inspector Hansen for not investigating the complaint against Superintendent Hardman were not accurate or were insufficient to warrant that course. As the respondent recorded in his written submissions to the Tribunal, the allegation that Superintendent Hardman had lodged an unwarranted and unjustified or false complaint was a serious allegation and yet Inspector Hansen made the recommendation that the complaint not be investigated without having access to Superintendent Hardman's complaint.
As we have found, the proposition that the complaint was lodged against the applicants by reason of their homosexuality is at least suggested by Superintendent Hardman's choice of words, that is "homosexual like-minded Newtown Police" and references to promiscuity, loose morals and reckless behaviours.
However the fact that Inspector Hansen failed to review Superintendent Hardman's complaint when recommending that the applicants' complaint should not be investigated does not establish, or enable us to draw the inference, that the decision not to investigate the complaint was founded upon the applicants' homosexuality.
We are unable on the evidence before us to reach the conclusion that the decision not to investigate the complaint was taken on the ground of the applicants' homosexuality. As noted above, that proposition was not put to Inspector Hansen.

Was Constable Sheehy subject to victimisation?

The second complaint involves the allegation of victimisation of Constable Sheehy. We are unable to find that the conduct of Superintendent Hardman, either in lodging the complaint of breach of the Surveillance Devices Act or in writing adverse comments on Constable Sheehy's application for the Prosecutor Education programme, occurred by reason of the fact that Constable Sheehy had raised the possibility that the investigation had been founded upon his homosexuality and that there had accordingly been unlawful discrimination, or by reason of a belief on the part of Superintendent Hardman that Constable Sheehy intended to make a complaint of discrimination. There is no basis to reach that conclusion beyond the fact that those events occurred after Constable Sheehy had raised the issue with Superintendent Hardman and made the comment that he hoped the fact that he had been the subject of investigation was not because he was gay.
There are other "innocent" explanations for Superintendent Hardman's conduct which we are not able to reject.
The evidence before the Tribunal does not indicate that Superintendent Hardman did not genuinely believe that the Workcover investigator, Ms Lynskey, had formed the view that Constable Sheehy had referred to tape recordings on his phone during the course of an interview with her.
Accordingly we cannot conclude that the complaint against Constable Sheehy was motivated by anything other than the fact that an apparent breach of the Surveillance Devices Act by Constable Sheehy had been disclosed to Superintendent Hardman.
The fact that Superintendent Hardman expressed a poor view of Constable Sheehy in comments on Constable Sheehy's application for the Prosecutor Education Programme cannot be attributed to any apprehension that Constable Sheehy might complain of discrimination on the ground of his homosexuality. There is simply no basis in the evidence to draw that conclusion.
We are also not persuaded that Constable Sheehy's lack of success in his application was in any way attributable to Superintendent Hardman's adverse comments.
The respondent called evidence from Inspector Rebbecca Becroft who was one of two officers who interviewed Constable Sheehy in relation to his application to be accepted into the Prosecutor's Education programme. Inspector Beecroft gave evidence that the other member of the interviewing panel had since medically retired from the Police Force. Inspector Becroft stated that all applicants for the programme are interviewed, usually by three senior officers within the Police Prosecution Command. On the occasion of Constable Sheehy's interview only two senior officers were available.
Inspector Becroft acknowledged reading the comments of Superintendent Hardman but stated that she gave them no weight. She stated that she had also read comments by the Police prosecutor at Newtown who had made adverse comments regarding a recent criminal brief which Constable Sheehy had prepared and that she had spoken to the prosecutor who had indicated that she had had little to do with Constable Sheehy and could add little to her written comments.
Inspector Becroft described her recollection of the interview. She stated that she had formed the view that Constable Sheehy "had limited insight into his own behaviours" and that "in particular, he was quick to provide excuses for things such as his disciplinary history, rather than acknowledging issues and taking steps to improve his conduct and performance. This was not a desirable quality for a Police prosecutor".
Inspector Becroft gave evidence that the second part of the interview involved Constable Sheehy being given one of three standard hypothetical scenarios, which require the candidate to "identify whether or not a prosecution could be sustained on the facts provided, any relevant defences and any other potential legal issues".
Inspector Becroft described Constable Sheehy's answer to the hypothetical question as "woeful". She stated that he "failed to accurately identify the legal issues and provided a plainly wrong solution".
Inspector Becroft stated that she discussed Constable Sheehy's performance with the other member of the interview panel and both expressed the view that Constable Sheehy did not perform well and was not suitable for the Prosecutor's Education programme.
Inspector Becroft stated that her own decision in this regard was "almost solely based on his very poor answer to the legal hypothetical", but that it was "also partly based on the fact that I considered he presented poorly in the interview generally".
Inspector Becroft denied that Superintendent Hardman's adverse comments had had any impact on the interview panel's consideration of Constable Sheehy's application. Inspector Becroft explained that upon reading those comments it was apparent to her that there was some sort of interpersonal conflict behind the written remarks and therefore gave them no weight.
In cross examination Inspector Becroft acknowledged that her contemporaneous notes of the interview had not been retained and her affidavit had been prepared in September 2017, that is fourteen months after the interview without reference to those notes. She also acknowledged that she had conducted many interviews in that time. Nevertheless Inspector Becroft maintained that she specifically recalled Constable Sheehy's interview because he had failed to identify the critical issues in the hypothetical question even when prompted. Inspector Becroft indicated that this was most unusual and caused her to remember the interview.
It was not suggested to Inspector Becroft that she had in fact relied upon Superintendent Hardman's adverse comments in reaching a conclusion regarding Constable Sheehy's application. She did agree that a very positive recommendation from an applicant's commanding officer would be something that she would take into account favourably.
In final submissions the applicant submitted that Inspector Becroft's evidence could not be relied upon by reason of the absence of contemporaneous notes. It was submitted that because Inspector Becroft could not recall which of three hypothetical scenarios had been put to Constable Sheehy her evidence was not reliable. We do not accept that submission. Inspector Becroft was commendably frank about her absence of recollection of which scenario had been put forward, indicating that "I have a strong suspicion I know which one it is but I don't want to hazard a guess" and "I can't swear on oath what the question was but I have a strong suspicion I know which one it was but I am not prepared to swear on oath that it was that question."
We accept Inspector Becroft's evidence. We find that Superintendent Hardman's adverse comments, even if motivated by an apprehension or belief that Constable Sheehy had complained of discrimination or was likely to do so were not a cause of Constable Sheehy not being accepted into the Prosecutor Education programme.

Have the applicants been treated less favourably in a relevant respect?

The respondent submitted that the respondent's decision which actually gave rise to the 'targeting' of the applicants was made under s139(2) of the Police Act by Detective Superintendent Lewis as the respondent's delegate". The respondent submitted that "neither this decision, the investigation which followed, nor any of the stages of the 'drug investigation' identified in the evidence, was a term or condition afforded to the applicants for the purpose of s49ZH(2)(a) of the ADA (or, indeed a matter arising under 2(c))".
Section 49ZH(2) of the ADA provides: (2) It is unlawful for an employer to discriminate against an employee on the ground of homosexuality - (a) in the terms or conditions of employment which the employer affords the employee, (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee or subjecting the employee to any other detriment.
We have addressed above the proposition that the complaint and subsequent investigation occurred on the ground of the applicants' homosexuality. The fact that the applicants have not established that Detective Superintendent Lewis' decision to recommend referral of the complaint for investigation was made on the grounds of the applicants' homosexuality does not have the result that the referral and the subsequent investigation did not occur on the grounds of the applicants' homosexuality. There was no event or decision which broke the causal nexus between the lodgement of the complaint by Superintendent Hardman and the subsequent events.
For the same reason we find that Detective Senior Constable Kiernan's decision to arrange ostensibly random drug testing of the applicants likewise occurred on the ground of the applicants' homosexuality, not by reason of any decision of Detective Senior Constable Keirnan, but because the complaint made by Superintendent Hardman on the ground of the applicants' homosexuality therefore came to Senior Constable Kiernan for investigation by reason of the applicants' homosexuality.
The respondent pointed out that the applicants had not been subjected to targeted drug tests but rather had only been subjected to testing at the same time as other officers in what was, as far as those conducting the testing were concerned, apparently random testing. The evidence disclosed that when Senior Constable Rapisarda and Constable Sheehy were tested on 5 October 2015, 22 other Police officers at Newtown were tested and that on 8 October 2015 when Senior Constable Housego was tested at Central Metropolitan Region, Senior Constable Housego was one of three Police officers tested on that occasion.
The respondent also pointed out that Senior Constable McDonald was not in fact subjected to any drug test which could be attributed to the investigation as he had been tested in the ordinary course of his duties since the lodgement of the complaint.
The respondent submitted: "the 'targeting' of the applicants did not involve any hostile work environment, abuse, ridicule, bullying, harassment, nor did they suffer any adverse perceptions from being randomly drug tested at the same time as their colleagues. Until the investigations had concluded and the applicants had been informed of the outcome of the drug tests, the applicants did not know of the decision to investigate an allegation of prohibited drug use. No detriment was suffered by the applicants in relation to the conduct of the investigation."
The applicants submitted that the complaint would be recorded in the applicants' complaint histories and that the applicants' knowledge of that fact had caused them to become upset and 'sustain psychological injuries'. Putting to one side the question whether the psychological injuries were in fact established, we accept that the applicants were upset to discover they had been the subject of the complaint. The issue for determination is whether the circumstances in which the applicants came to be aware of the fact they had been the subject of complaint was itself a detriment related to their employment.
Each of the applicants gave evidence that they were distressed by the revelation that the complaint of drug use had been made. Each of the applicants took time off work and lodged workers compensation claims. We accept the evidence of the applicants describing their distress. It would not be considered surprising that a Police officer who discovered he had been the subject of allegations of illegal drug use would be distressed by that revelation.
The evidence also disclosed that the lodgement of the complaint will remain on the applicants' files notwithstanding that the outcome of the investigation, that the allegations were not sustained, is also recorded.
The evidence of Inspector Hansen was that a Police officer's complaint history would be reviewed when a Police officer applied for a promotion and was identified as the preferred candidate. Inspector Hansen's evidence was that in those circumstances a review of the officer's complaint history is undertaken to ensure that there is not an open complaint, "so that you wouldn't have someone being promoted that may have an outstanding complaint matter".
The respondent submitted, and we accept, that the evidence does not establish that the making of the complaint could have any effect on the applicants' prospects for promotion.
In those circumstances the respondent submitted that there was no less favourable treatment of the applicants by reason of either the complaint or the subsequent investigation. As Mr Fernon put in oral submissions: "They haven't been denied an opportunity, they haven't been denied a promotion, they haven't been denied a job, they haven't been given conditions which are less favourable to work under. This is not the sort of treatment which constitutes less favourable treatment for the purposes of discrimination legislation."
Section 49ZH of the ADA relevantly prohibits discrimination by an employer against an employee on the ground of homosexuality "in the terms or conditions of employment which the employer affords the employee" or "by dismissing the employee or subjecting the employee to any other detriment".
We do not accept the applicants' submission that the lodgement or investigation of the complaint constituted discrimination in the terms or conditions of employment. As Lee J held in Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at 55, the expression "terms or conditions of employment is: "not restricted to the matter of the terms of contract of employment, but being designed to encompass as well, all those demands and requirements, and benefits and concessions in the actual employment which the employee must comply with or can accept as the case may be".
In our view, being the subject of a complaint of drug use and the subject of investigation for suspected drug use cannot fairly be described as a demand or requirement which an employee must comply with. The applicants were not subjected to the imposition of different terms or conditions of employment to other Police officers. They were not subject to demands or requirements not imposed upon other Police officers.
However we find that the lodgement of the complaint and the subjection of the applicants to investigation did involve the applicants being subjected to a detriment. In the ordinary course of employment an employee would not expect that they would be subjected to unfounded allegations, by reason of their sexual orientation or for any other reason.
As we have found that the lodgement of the complaint was founded upon the applicants' homosexuality, the applicants' legitimate expectations in that regard were effectively denied. Until Senior Constable Kiernan communicated the result of the investigation to the applicants there had not been any practical impact upon them, as the only active step undertaken in the investigation was the procurement of "random" drug tests for each of Senior Constable Rapisarda, Senior Constable Housego and Constable Sheehy.
Senior Constable Housego did give evidence that he had suspicions at the time of the drug test that there was an element of targeting involved, but we do not consider that is significant in our assessment of the situation. Whatever the situation might have been if the applicants had never become aware of the existence of the complaint, once the complaint was disclosed to them, they were understandably distressed and the fact that the making of the complaint led to that distress is in our view sufficient to constitute a detriment to the applicants.

Were the applicants "employees" of the respondent for the purposes of the ADA?

Section 4B of the ADA provides: 4B References to certain employers (1) A reference in this Act to an employer: (a) in relation to employment in a Public Service agency, is a reference to the head of the agency, and (b) in relation to employment in the NSW Police Force, is a reference to the Commissioner of Police, and (c) in relation to employment in the Teaching Service, is a reference to the Secretary of the Department of Education. (2) Any thing determined or done with respect to any matter concerning any such employment by a person who is employed in any Public Service agency, the NSW Police Force or the Teaching Service and who is authorised to determine and do things in that respect is taken to have been determined or done by the head of the agency, the Commissioner of Police or the Secretary of the Department of Education, respectively. (3) Subsection (2) includes anything determined or done with respect to: (a) any offer of employment, or (b) the terms and conditions on which employment is offered, or (c) the opportunity afforded for promotion, transfer, training or other benefits associated with employment, or (d) dismissal from employment.
Section 4B was amended by the Statute Law (Miscellaneous Provisions) Act (No 2) 2015 (NSW). Sub-clause [4] of clause 3.8 of Schedule 3 to that Act (the Amending Act) provided for the replacement of sub-section 4B(2).
Prior to that amendment sub-section 4B(2) provided: (2) Anything determined or done with respect to any matter concerning any such employment by an officer or employee in any Department, in the NSW Police Force or in the Teaching Service who is authorised to determine and do things in that respect is taken to have been determined or done by the Department Head, Commissioner of Police or Director-General of the Department of Education and Training, respectively.
The respondent submitted that: "At common law it is well settled 'trite law' that members of the Police Force are not 'employees'. The relationship of master and servant does not exist between the Crown and its Police officers. Police officers are independent office holders exercising 'original authority' in the execution of their duties."
This proposition was affirmed by Leeming JA with whom McColl and Ward JJA agreed in State of New South Wales v Briggs [2016] NSWCA 344; 264 IR 309 at [50] to [70].
In Commissioner of Police v Russell (2002) 55 NSWLR 232 Spigelman CJ, with whom Stein JA and Davies A-JA agreed, held that section 4B in the form it had before its amendment in 2015 had the effect that the word "employee" in the ADA extended to the situation of a non-executive Police officer and was not confined to situations in which there was a contract of employment. His Honour held: 92 There are a number of textual indications that the word "employee" should not be read in a narrow sense. The word appears most frequently in the context of references to "work". Accordingly, the Division in each of the Parts which refer to discrimination in employment is headed "Discrimination in work". The definition of employment is expressed to include "work under a contract for services". Similarly the definition of employment agency refers, disjunctively, to the conduct of "supplying employers with workers or employees" in the context of "finding work or employment for others". 93 Of particular significance for present purposes is the reference in s4B(2) to "such employment by an officer or employee". Each of the paragraphs of s4B(1) relate to an employer "in relation to employment" in, respectively, any government Department, the Police Service and the Education Teaching Service. The reference to "employment" in the phrase "in relation to employment" in subs (1) was intended to encompass persons who were both "officers" and "employees". This is a strong textual indicator that the word "employee", where otherwise appearing in the Act, should not be given a narrow definition. 94 In my opinion the purpose served by the various sections in which the word "employee" appears, including s53, is such that the word "employee" should not be confined to situations in which there is a contract of employment, but extend to the situation of a police officer.
The respondent's Points of Defence explicitly admitted that each of the applicants was "a sworn Police officer in the employ of the Commissioner of Police" and that each of them had been "employed" at the relevant time.
Mr Fernon sought to withdraw that admission and submitted that the effect of the decision in Russell had been overturned by the replacement of sub-section 4B(2) in 2015.
Mr Fernon pointed to the fact that Spigelman CJ in Russell at [93] had relied upon the reference in the earlier version of section 4B(2) to "such employment by an officer or employee" as a "strong textual indicator that the word 'employee', where otherwise appearing in the Act, should not be given a narrow definition" and described that reference as being "of particular significance". Mr Fernon submitted that that reasoning was no longer applicable in the interpretation of section 4B as the relevant words had been removed from the ADA.
We do not accept that the amendment of section 4B in 2015 was intended to have that effect. The Explanatory Note accompanying the Statute Law (Miscellaneous Provisions) Bill (No 2) 2015, as introduced into Parliament, identifies the objects of the Bill as relevantly "to make minor amendments to various Acts and Instruments consequent on the enactment of the Government Sector Employment Act 2013".
Although, by virtue of section 3 of the Amending Act, the matter appearing under the heading "Explanatory note" in any of the schedules does not form part of the Amending Act, reference to that material is nevertheless permitted pursuant to section 34 of the Interpretation Act 1987 (NSW), and under generally applicable principles of statutory interpretation, in order to identify the purpose or object underlying the Amending Act.
The heading to Schedule 3 of the Amending Act is "Consequential amendments relating to enactment of Government Sector Employment Act 2013" and the explanatory note appearing at the commencement of Schedule 3 is as follows: This Schedule contains amendments that update terminology and references relating to Public Service agencies, heads of agencies and Public Service employees as a consequence of the Government Sector Employment Act 2013. The Schedule also includes other miscellaneous amendments that are consequential on the enactment of that Act and the making of past administrative changes orders.
It is, in our view, clear that the amendment of section 4B by the Amending Act was not intended to make substantive changes to the operation of that provision and in particular to the judicial construction of that provision as set out in the Court of Appeal decision in Russell.
As the applicants did not identify any prejudice that they would suffer if the respondent were permitted to withdraw the admission that the applicants were employed by the respondent, we would, if appropriate, have permitted the respondent to withdraw that admission. However, we consider that the admission was appropriately made and find that the applicants were, by virtue of section 4B of the ADA, considered to be employed by the respondent for the purposes of the ADA.

Did the respondent authorise Superintendent Hardman to make the complaint?

The respondent submitted that the conduct of Superintendent Hardman in lodging the complaint was not relevantly authorised by the respondent.
Section 53 of the ADA provides: 53 Liability of principals and employers (1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. (2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability. (3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act. (4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.
As the respondent submitted, the word "authorise", which appears both in section 4B and in section 53 of the ADA, has been held to embrace "sanction, approve, countenance and permit": Shellharbour Golf Club v Wheeler [1999] 46 NSWLR 253 at [58].
The respondent submitted that the complaint was made under section 126(1) of the Police Act as in force in 2015, under which any person may make a complaint. The respondent also submitted that sub-clause 49(1) of the Police Regulation 2008 (NSW), as in force in 2015: "required Superintendent Hardman to report any alleged conduct by the applicants to a senior police officer if: (a) an allegation had been made to him that the applicants had engaged in conduct which, in his opinion, constituted a criminal offence or other misconduct; or (b) he sincerely believed that the applicants had engaged in any conduct of that kind."
The respondent submitted that the Commissioner of Police had no role or function in authorising the making of any complaint and that Superintendent Hardman had a statutory right to make the complaint.
In Shellharbour Golf Club v Wheeler, Studdert J dealt with a submission that it was not sufficient to render an employer liable for discriminatory conduct by an employee to find that the employee was "ostensibly performing his duties" at the time he engaged in the discriminatory conduct and that it was necessary for a complainant to establish that "the very act complained of was done 'as the agent'".
Studdert J stated (46 NSWLR 253 at [30]) that section 53 should not be construed in that manner as: 30 To do so would defeat one of the statutory objectives …. A body corporate can only act through its servants or agents. An employer would not ordinarily employ an employee to engage in misconduct such as that committed by the second respondent in this case. Nor would a principal ordinarily engage his agent to do so. Hence the construction for which Mr Neil contends, viewing the Act as it stood at the relevant time, would preclude redress to an employee who has been sexually abused by another employee, or by the agent of a principal, even though the misconduct occurred in the workplace environment. 31 Section 53(1) must be read as a whole. The key to the sub-section is to my mind to be found in what should properly be considered as the exception: "Unless the principal or employee did not, either before or after the doing of the Act, authorise the agent or employee, either expressly or by implication, to do the Act." 32 If Mr Neil's submission was correct that exception would have no work to do, applying the general principles relating to the law governing principal and agent. 33 However, as I construe s 53(1), once it was established that the misconduct occurred in the workplace environment and the offender was ostensibly at the time acting in the discharge of responsibilities as agent for his principal, what he did was deemed to be done by his principal, unless the conduct was unauthorised by the principal either expressly or by implication.
This passage was approved by the Court of Appeal in NSW Breeding and Racing Stables Pty Ltd v V & X [2005] NSWCA 114 at [26] to [31].
As Studdert J held in Shellharbour Golf Club (at [40]), the onus lies upon the respondent to establish that the conduct of Superintendent Hardman was not authorised. The respondent submitted: 43. In the present case, the central thrust of the Applicants' case is that because the complaint within Exhibit 2 was "demonstrably false", and that Superintendent Hardman had "concocted" criminal allegations against them and had fabricated evidence, it must follow that the complaint within Exhibits 2 made on the ground of homosexuality. Similarly the Applicants alleged that the complaint in Exhibit 3 was false and thereby made for a proscribed reason. 44. There is no evidence that the Respondent authorised the making of a false complaint. To the contrary, s 167A(1) makes it a criminal offence to make a false complaint under Part 8A. The Respondent's complaint handling guidelines reinforce this prohibition. These factors stand against any inference being drawn that the Respondent authorised a false complaint. The Applicants have not shown, on the evidence, that the Respondent authorised the making of a false complaint or any complaint. Rather, the source of the right to make a complaint is contained in the Police Act.
While we accept that Superintendent Hardman was not authorised to lodge a demonstrably false complaint or to concoct criminal allegations against the applicants or to fabricate evidence, such findings are neither implicit in nor essential to our conclusion that Superintendent Hardman lodged the complaint against each of the applicants on the ground of their homosexuality. We have not concluded that Superintendent Hardman concocted allegations or fabricated evidence.
Although there were certain matters such as the state of Senior Constable Rapisarda and Senior Constable McDonald's hair and the content of their social media exchanges that were not accurately recorded in the complaint, we do not attribute that to a deliberate decision on the part of Superintendent Hardman to misstate the facts. It is in our view more likely that those statements were attributable to a "rush to judgment" influenced by stereotypical assumptions about homosexual men.
The respondent has not sought to demonstrate that Superintendent Hardman engaged in deliberate falsehoods or fabricated evidence. In those circumstances we conclude that the respondent has not satisfied the onus of establishing that the conduct of Superintendent Hardman was not authorised. Regardless that the right to make a complaint is an independent right under the Police Act afforded to all persons, it is clear that Superintendent Hardman was acting in his capacity as a police superintendent and officer in charge of Newtown Local Area Command in lodging the complaint.
In this regard we repeat the statement of Studdert J in Shellharbour Golf Club at [33] set out above.

Was the conduct of Superintendent Hardman less favourable treatment within sub-section 4B(3)?

The respondent submitted that the provisions of sub-section 4B(3) were exhaustive of the forms of less favourable treatment to which section 4B applied. The respondent referred to the advice of the Privy Council in Dilworth v Commissioner of Stamps [1899] AC 99 at 105 where their Lordships stated: "The word 'include' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But word 'include' and 'is susceptible of another construction', which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined." It may be equivalent to 'mean and include', and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions."
In Batchelor & Co Pty Ltd v Websdale (1963) 63 SR (NSW) 49 at 52, Sugerman J held, in considering the definition of "security" in s 24(2) of the Money-lenders and Infants Loans Act 1941 (NSW): The enumeration in sub-s. (2) adds nothing to the natural import of the word 'security'. Indeed all the matters enumerated are within the strictest meaning of that term and, within that meaning, the second limb of the definition is of the widest import. All the matters enumerated share the common characteristic that they relate to securities by which rights in relation to specific property of the debtor are conferred. These considerations lead to the conclusion that 'include' in sub-s. (2) is equivalent to 'mean and include' and that the definition therein given is intended to be exhaustive, or at least that the securities intended to be embraced all share the common characteristic of conferring rights against specific property.
That statement was cited with approval by McTiernan J in Y Z Finance Co Pty Ltd v Cummings (1964) 109 CLR 395 at 399. In that case Kitto J held at 402: Unlike the verb "means", "includes" has no exclusive force of its own. It indicates that the whole of its object is within its subject, but not that its object is the whole of its subject. Whether its object is the whole of its subject is a question of the true construction of the entire provision in which the word appears. The well-known statement of Lord Watson in Dilworth v. Commissioner of Stamps should not be taken so literally as to reduce the inquiry in a case like the present to an inquiry into the meaning of the word "includes". Strictly speaking, that word cannot be equivalent to "means and includes". But a provision in which it appears may or may not be enacted as a complete and therefore exclusive statement of what the subject expression includes. A provision which is of that character has the same effect as if "means" had been the verb instead of "includes". The question whether a particular provision is exclusive although "includes" is the only verb employed is therefore a question of the intention to be gathered from the provision as a whole.
In Victims Compensation Fund v Brown (2002) 54 NSWLR 668 at 674 Spigelman CJ stated: 30 The word "includes" has been given an exhaustive meaning where the context in which it appears indicates an intention to confine a general word by providing a limited list of words. Indeed, even though the primary meaning of "include" is expansive, where the words that follow would ordinarily fall within the meaning of the general word, the fact that they are expressed will often indicate an exhaustive or exclusive use of "includes". (See e.g. YZ Finance Co v Cummings (1964) 109 CLR 395 at 398-399, 401-402, 403; Dilworth v Commissioner of Stamps [1899] AC 99 at 105-106. A number of authorities have recently been discussed by Malcolm CJ in R v Tkacz [2001] WASCA 391 esp at [45]-[56]. See also Pearce and Geddes Statutory Interpretation in Australia (5th ed) at 6.56-6.60.)
The applicants in reply submitted that the respondent's submissions on this topic were misconceived stating: "Firstly, section 4B(3) does not have a limiting effect in the way the respondent contends. It does nothing more than clarify the matters which are encompassed by the liability imposed by s4B(2). Secondly, s4B(3) is drafted in inclusive not exclusive statutory language. There is no basis for reading s4B(3) as confining the language of s49ZH or s49ZJ."
In the eighth edition of their work, Statutory Interpretation in Australia (2014), Pearce and Geddes (at [6.62]) discuss the drafting problems which would arise from the use of "includes" as exhaustive and, after setting out the statement of the Privy Council in Dilworth, state: "This passage is almost invariably cited in cases dealing with 'include' type definitions. It is, however, one of those blithe statements that are so often made in relation to the interpretation of statutes but which achieve very little in the way of practical assistance. It will always be the task of the Judge to determine whether 'the context is sufficient to show that [includes] was not merely employed for the purpose of adding to the natural significance of the words or expressions defined'. No guidance is given as to how to go about this task. But the defect in the statement is that it suggests that this construction is one that can be regularly used … This, it is submitted, should not be the case."
The equivalent passage in the 5th edition of that work was referred to by Basten JA in Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 at [88]-[89]: 88 It is undoubtedly true to say that the term "include" may have different meanings in different contexts. One use of the term is to indicate that which was intended to be covered, by way of illustration. Strictly speaking, such inclusions may be mere surplusage. On the other hand, they may indicate the narrowness or breadth of the class intended to be identified and may, at some point on a continuum, engage the second purpose, namely to identify items which might not generally be thought to fall within the class, but which are intended to be included in this provision. At [40], the primary judge set out a passage from the opinion of the Privy Council in Dillworth v Commissioner of Stamps [1899] AC 99 at 105-6, in which the different usages of "include" are considered before it is stated that: "It may be equivalent to 'mean and include', and in that case may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions." 89 As his Honour noted, that passage is cited in Pearce and Geddes, Statutory Interpretation in Australia, (5th ed, 2001) at [6.58]. However, the authors go on to warn that the passage gives little practical assistance in determining when an exhaustive explanation may be ascribed to the class identified, and suggest that such an approach should not too readily be adopted. For reasons noted below, that caution should be accepted.
Section 4B was first inserted into the Act by the Anti-Discrimination Amendment Act 1997 (NSW) (the 1997 Amendment Act). The Explanatory Note to the Anti-Discrimination Amendment Bill 1996, which subsequently became the 1997 Amendment Act, explained the inclusion of section 4B as follows: At present, discrimination in employment is prohibited in respect of each ground of unlawful discrimination. For instance, section 8 provides that it is unlawful for an employer to discriminate against a person on the ground of race in respect of arrangements made for determining who should be offered employment and in the terms on which the employer offers employment. (Similar provisions are made in respect of each other ground of unlawful discrimination). Those provisions operate by reference to an "employer". At present, section 4(7) of the Act says, in effect, that a public servant's employer is the relevant Department Head. Schedule 1[6] and [7] replace the provisions that set out who is the "employer" of a public servant and update the terminology of that provision.
Clause [7] of Schedule 1 to the 1997 Amendment Act inserted section 4B into the ADA. Clause [6] repealed section 4(7) of the ADA. Prior to its repeal that provision was as follows: (7) A reference in this Act to an employer shall be read and construed, in relation to employment in a Department, or Administrative Office, within the meaning of the Public Service Act 1979, as a reference to the Department Head, within the meaning of that Act, of that Department or in relation to that Administrative Office, as the case may require, and (a) the offer of any such employment; (b) the terms and conditions on which any such employment is afforded; (c) the opportunity afforded for promotion, transfer, training or other benefits associated with any such employment; or (d) dismissal from any such employment. or with respect to any other matter concerning employment, by an officer or employee in any such Department or Administrative Office who is authorised to determine and do things in that respect shall be deemed to have been determined or done by the Department Head.
In our view section 4B is ambiguous. Reference to the Explanatory Note is authorised by s 34(1)(b)(i) of the Interpretation Act.
It is significant, in our view, that sub-section 4(7), which was replaced by section 4B, included the words, following sub-paragraph (d), "or with respect to any other matter concerning employment". That, in our view, was clearly sufficient to include the terms and conditions of employment and any other detriment. It is thus apparent that sub-section 4(7) did not limit the categories of less favourable treatment in respect of which the extended meaning of employment for the purposes of the Act was intended to operate. There is nothing in the Explanatory Note to the 1997 Amendment Act (or in the second reading speeches in relation to the 1997 Amendment Act, which did not make any reference to the amendments which inserted section 4B and repealed sub-section 4(7)) which suggests that a substantive change was intended to the categories of less favourable treatment covered by the expanded meaning of employment.
The respondent submitted that the circumstance of discrimination in the terms or conditions of employment which an employer affords an employee or the subjecting of an employee to any other detriment: "would be expected to be dealt with by the Industrial Relations Commission of New South Wales which has jurisdiction to hear and determine industrial matters…which includes 'discrimination in employment in any industry (including in remuneration or other conditions of employment) on a ground to which the Anti-Discrimination Act applies' (see Industrial Relations Act 1996 (NSW) section 6(2)(f))."
However the examples of industrial matters listed in s 6(2) of the Industrial Relations Act 1996 (NSW) also include "(e) the termination of employment of (or the refusal to employ) any person or class of persons in any industry". The respondent's submissions did not explain why the regulation of discrimination in the terms and conditions of employment and the subjection to other detriment should have been made exclusive to the Industrial Relations Commission, while discriminatory termination and/or refusal of employment were not excluded from the ADA, or why such exclusivity of jurisdiction should be limited to employment in a Public Service Agency, the Police Force or the Teaching Service.
We do not accept that the specification of four forms of treatment in sub-section 4B(3) was intended to limit the operation of section 4B so as to exclude its operation in relation to the subjection of a Police officer to "any other detriment".
As the passages excerpted above indicate, the word "includes" can be construed as exhaustive so as to mean effectively "means", but the ordinary meaning of "includes" is not exhaustive. In light of the legislative history we have referred to above, we conclude that sub-section 4B(3) was an attempt to encapsulate the elements of s49ZH and equivalent provisions rather than a deliberate limitation of the extent of the section.

Has the respondent established a defence under s 54(1)(b) of the ADA or s 213 of the Police Act?

Section 54 of the ADA provides: 54 Acts done under statutory authority (1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of: (a) any other Act, whether passed before or after this Act, (b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act, (c) an order of the Tribunal, (d) an order of any court, not including an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment,
Section 213 of the Police Act 1990 provides: 213 Protection from personal liability A member of the NSW Police Force is not liable for any injury or damage caused by any act or omission of the member in the exercise by the member in good faith of a function conferred or imposed by or under this or any other Act or law (whether written or unwritten).
The respondent submitted that the provisions of s 54(1)(b) of the ADA and s 213 of the Police Act "operate to exclude liability on the part of the respondent in circumstances where the evidence demonstrates that Superintendent Hardman had a particular state of mind at the time of making the complaint in Exhibit 2" and "Superintendent Hardman made the complaint in Exhibit 2 in accordance with an obligation under clause 49 of the Police Regulations 2008 (since repealed) to report potential misconduct. He did so on the basis that either an allegation had been made to him that the applicants had engaged in conduct which, in his mind, constituted a criminal offence or other misconduct (sub clause 49(1)(a)); or he sincerely believed that the applicants had engaged in conduct which, in his opinion, constituted a criminal offence or other misconduct (sub clause 49(1)(b)).
Clause 49 of the Police Regulation 2008, as in force in 2015, provided: 49 Police officer to report misconduct (1) If: (a) an allegation is made to a police officer that another police officer has engaged in conduct which, in the opinion of the officer to whom the allegation is made, constitutes a criminal offence or other misconduct, or (b) a police officer sincerely believes that another police officer has engaged in any conduct of that kind, the officer is required to report the conduct or alleged conduct by the other officer to a senior police officer (being a police officer who is more senior in rank than the officer making the report). (2) This clause does not apply to conduct or alleged conduct: (a) that has been made the subject of a complaint under Part 8A of the Act, or (b) that has been the subject of evidence or other material given, or submissions made, in the course of criminal proceedings, or (c) that has already been reported under this clause to a senior police officer. (3) A senior police officer to whom conduct (or alleged conduct) by a police officer is reported is required to report it promptly to the Commissioner or a police officer nominated by the Commissioner if the senior police officer believes that the conduct (or alleged conduct): (a) constitutes (or would constitute) a criminal offence, or (b) could provide sufficient grounds: (i) for taking section 80 dismissal action, or (ii) for making a reviewable section 173 order or a section 181D order.
The respondent submitted that the obligation on Superintendent Hardman under clause 49 was cast in "specific and mandatory terms" and referred to the decision of the Administrative Decisions Tribunal in Lavery v Commissioner of Fire Brigades [2003] NSWADT 93.
In that decision at [80] to [81] the Tribunal stated: 80 To adopt the language of McHugh J in Waters v Public Transport Corporation (1991) 173 CLR 349 at 413, the requirements of the Liquor Act 1982 and the Public Health Act 1991 concerning the supply of liquor and cigarettes to people under the age of 18 are "mandatory and specific" and therefore fall within the "protective cloak" of s 54. In the same case Dawson and Toohey JJ pointed out (at pp 389-390) that the Victorian equivalent of s 54 could not be relied upon "if there were a discretion as to the manner in which the specific directions might be carried out which offered a choice between discrimination and no discrimination". Thus, in order for the respondent to successfully rely upon the "protective cloak" provided by s 54 it seems necessary to establish that the requirements of the other Act are mandatory and specific, and permitted no means of compliance except acting in a manner that would otherwise constitute unlawful discrimination. Whether particular conduct attracts the "protective cloak" of s 54 appears to be a mixed question of fact and law; the construction of the "requirements of the other Act" is a question of law, and whether the respondent was obliged to act as he/she did in order to comply with the requirements of the other Act is a question of fact. 81 In this case the legislative provisions upon which the respondent seeks to rely in order to attract the 'protective cloak' of section 54(1)(a) are mandatory, but not specific. This lack of specificity does not, of itself, render it legally impossible for the respondent to rely upon the 'protective cloak', because s 54(1)(a) simply refers to it being "necessary" to comply with a requirement of another Act. It appears that the need for specificity was highlighted by McHugh J when describing the operation of the former Victorian equivalent to s 54 because it will usually be practically impossible for a respondent to argue that his/her conduct, which would otherwise constitute unlawful discrimination, was rendered lawful because it was "a requirement" for him/her to act as he/she did in order to comply with a general, as opposed to a specific, obligation cast upon him/her by another statute. The comments by Dawson and Toohey JJ in Waters amplify the observations made by McHugh J in that case. If a respondent has a discretion or choice concerning the manner in which he/she complies with a statutory obligation then it cannot be said that the particular obligation is both mandatory and specific.
The respondent submitted that: "Once Superintendent Hardman formed the requisite opinion, he had a legal obligation to report it to a senior officer. It would not matter if the opinion or belief had been formed erroneously or that the reasons for forming the belief were flawed."
The respondent submitted in the alternative that Superintendent Hardman's making of the complaint in Exhibit 2 was the "exercise in good faith of a function imposed upon him by the Police Act and regulations" so that liability on the part of Superintendent Hardman and consequently the respondent was excluded by s 213 of the Police Act.
The respondent referred to the statement of Dixon J in Little v The Commonwealth (1947) 75 CLR 94 at 112: The truth is that a man acts in pursuance of a statutory provision when he is honestly engaged in a course of action that falls within the general purpose of the provision. The explanation of his failure to keep within his authority or comply with the conditions governing its exercise may lie in mistake of fact, default in care or judgment, or ignorance or mistake of law. But these are reasons which explain why he needs the protection of the provision and may at the same time justify the conclusion that he acted bona fide in the course he adopted and that it amounted to an attempt to do what is in fact within the purpose of the substantive enactment.
In Trobridge v Hardy (1955) 94 CLR 147 Fullagar J stated, at 157: "it seems now to be settled that, while there must be some factual basis for the belief, and while the actual facts known to a defendant may often be relevant to the question of the existence of a real belief, it is not necessary that the belief should be based on reasonable grounds".
This statement was approved by Mason CJ, Deane and Dawson JJ in Webster v Lampard (1993) 177 CLR 598 at 607 to 608.
In response, the applicants referred to the statement concerning the meaning of the provisions of the Equal Opportunity Act 1984 (Vic) equivalent to s 54 by Mason CJ and Gaudron J (with whom Deane J agreed) in Waters v Public Transport Corporation (1991) 173 CLR 349 at 368 to 369: If the relevant words [necessary … in order to comply … with a provision of any other Act] fell to be construed in isolation, we would favour the wide construction of them. When par. (e)(ii) is construed in its context in the Act, however, it appears to us that the narrow construction is the preferable one. … More importantly, the wide construction seems to us to be inconsistent with the general scheme of the Act. It is one thing to provide that the Act should give way to an express direction contained in an actual provision of another Act or in a statutory instrument. It is a quite different thing to provide, in effect, that the Act shall give way to any subordinate direction, no matter how informal, to which a provision of any other Act requires obedience.
The applicants submitted that the respondent, not having called evidence from Superintendent Hardman, could not establish that regulation 49 obliged Superintendent Hardman to lodge Exhibit 2 or that Superintendent Hardman was acting in good faith in preparing and lodging Exhibit 2.
In support of the submission that Superintendent Hardman had acted in good faith and in a bona fide belief that the submission of Exhibit 2 was justified, the respondent relied upon the terms of Exhibit 2 itself and also upon Superintendent Hardman's statement filed in Senior Constable Rapisarda's workers compensation proceedings (Exhibit 16).
We have addressed above the evidence concerning Superintendent Hardman's state of mind in preparing and submitting Exhibit 2 and the inferences which may be drawn from Exhibit 2 in the absence of evidence from Superintendent Hardman.
We are not persuaded that regulation 49 of the Police Regulations 2008 obliged Superintendent Hardman to lodge Exhibit 2. As we have found above, Exhibit 2 made allegations against four male homosexual police officers which would not have been made against other police officers who were not homosexual or thought to be homosexual. As the applicants point out, Exhibit 2 does not include any statement that Superintendent Hardman "sincerely believed" that the applicants had engaged in misconduct or criminal conduct. To the contrary, Exhibit 2 acknowledges that there was no direct evidence of drug use on the part of any of the applicants and describes the allegation as "at best … guilt by association and/or supposition".
Although Superintendent Hardman stated in the last paragraph of Exhibit 2 that "I retain a genuine concern the group is actively involved in recreational/illegal drug use", that statement does not amount to an assertion that Superintendent Hardman "sincerely believed" that each (or any) of the applicants had "engaged in conduct which … constitutes a criminal offence".
A "genuine concern" does not on any construction amount to a "sincere belief".
Although the respondent sought to rely upon regulation 49(1)(a) there is no evidence that any allegation had been made to Superintendent Hardman that any of the applicants had engaged in conduct which constituted a criminal offence, beyond the assertion in paragraph 21 of Exhibit 16, that is Superintendent Hardman's statement in the Workers Compensation proceedings, that: "in May 2015, I received an allegation regarding suspected involvement in illicit drug use. I referred that allegation, which related to the claimant [Senior Constable Rapisarda] and three other officers to the Professional Standards Command, for their consideration.
There is nothing in Exhibit 2 which suggests that Superintendent Hardman had received any allegation "regarding suspected involvement in illicit drug use". In our view Exhibit 2 makes it clear that the only allegation was that made by Superintendent Hardman himself.
As the applicants point out, at the time Superintendent Hardman prepared his statement for the Workers Compensation proceedings, the applicants had not been given access to Exhibit 2 and were not aware of the identity of Superintendent Hardman as the author of the complaint (which was not disclosed to the applicants until the hearing in these proceedings). In the absence of direct or independent evidence of any complaint made to Superintendent Hardman, we are not prepared to conclude, on the basis of paragraph 21 of Exhibit 16 alone, that any such complaint was made.
In the circumstances, in the absence of evidence from Superintendent Hardman, we do not find that Superintendent Hardman did receive any allegation from another person and we do not find that Superintendent Hardman was required by regulation 49(1)(a) of the Police Regulation 2008 to report the allegations contained in Exhibit 2.
In the absence of evidence from Superintendent Hardman we are also not prepared to find that Superintendent Hardman was acting in good faith in lodging the complaint Exhibit 2.
The respondent submitted that the provisions of the ADA and s 213 should be "construed to produce a harmonious result" (citing Commissioner of Police v Eaton (2013) 252 CLR 1 at [78]).
We do not accept that s 213 should be construed so as to exclude liability in a police officer who engages in what would otherwise be unlawful discrimination. Whether the discrimination be deliberate or arise through the unthinking or unconscious application of stereotyped assumptions, treating a person less favourably by reason of their homosexuality (or any other prohibited ground) cannot be said to be the exercise by the police officer "in good faith" of any function conferred under the Police Act or any other law.
Accordingly we find that the respondent has not established a defence to the applicants' complaints either pursuant to s 54 of the ADA or pursuant to s 213 of the Police Act.

Remedies

We have concluded that each of the applicants has established that they have been subjected to unlawful discrimination contrary to s 49ZH of the ADA by the preparation and submission of the complaint, Exhibit 2 and to that extent we find the complaints lodged by each of the applicants substantiated.
The consequences of the discrimination against each of the applicants included the subsequent investigation of the complaint, the notification of each of the applicants of the existence of the complaint and the recording of the complaint and the fact that it had not been upheld on each of the applicants' complaint history.
The remedies for unlawful discrimination which the Tribunal may grant are set out in s 108(2) of the ADA which provides: (2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following - (a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, (b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, (c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, (d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both), (e) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination, (f) make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations, (g) decline to take any further action in the matter.
Each of the applicants gave evidence of the distress they had experienced upon learning of the complaint. However the applicants did not lead detailed evidence of the losses which they claim to have suffered.
In the course of final submissions Mr Eurell indicated that, if successful, the applicants would seek to lead further evidence to establish actual economic loss flowing from the less favourable treatment. Mr Fernon opposed that course. Mr Eurell indicated that he had understood that the quantification of damages, in the event the applicants succeeded, was to be separately determined. Mr Fernon pointed to the transcript of a directions hearing held before Deputy President Hennessy on 4 July 2017 at which the question of particularisation of loss was canvassed. Senior counsel then appearing for the applicants stated, in response to a request for particulars of loss claimed by Senior Constable McDonald: "Certainly that is the kind of material that must be in our affidavit evidence or our statement evidence, and that's the appropriate time for the detailed articulation of how the loss is conceived and calculated."
The Deputy President decided that the applicants should not be required to amend their points of claim but noted: "I do request that, when the evidence is put on, it's made clear as to exactly what his claims are by way of remedy."
We indicated at that time that we would not foreclose Mr Eurell from making application to lead further evidence of loss in the event the applicants were successful. Accordingly we do not at this stage seek to address the question whether the applicants did in fact sustain any specific loss beyond the distress which we accept they experienced. The proceedings will need to be relisted to enable the applicants to make application, if so advised, to lead that further evidence and we expect that at that time the circumstances leading to that evidence not being led at the initial hearing will be fully explained.
We have not heard submissions concerning what remedy other than damages would be appropriate, or what damages might be awarded in the absence of specific evidence of loss, and we will receive such submissions at the further hearing of the matters.

Orders

Our orders are: 1. The proceedings are listed at 2pm on 10 December 2019 for the making of directions for the further conduct of the matters.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

Endnote

The claim we have referred to above as the third discrimination claim. 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: 29 November 2019

Anti-Discrimination Amendment Act 1997(NSW)

Police Regulation 2008(NSW)

Police Regulation 2015(NSW)

Money-lenders and Infants Loans Act 1941(NSW)

Equal Opportunity Act 1984(Vic)

Little v The Commonwealth (1947) 75 CLR 94 Purvis v New South Wales (2003) 217 CLR 92 NSW Breeding and Racing Stables Pty Ltd v V & X [2005] NSWCA 114 Shellharbour Golf Club v Wheeler [1999] 46 NSWLR 253 State of New South Wales v Briggs [2016] NSWCA 344; 264 IR 309 State of Victoria v McKenna [1999] VSC 310; 140 IR 256 Trobridge v Hardy (1955) 94 CLR 147 Victims Compensation Fund v Brown (2002) 54 NSWLR 668 Waters v Public Transport Corporation (1991) 173 CLR 349 Webster v Lampard (1993) 177 CLR 598 Y Z Finance Co Pty Ltd v Cummings (1964) 109 CLR 395 Zisopoulos v Commissioner of Police [2018] NSWIRComm 1011 Texts Cited: Pearce, DC and Geddes, RS, Statutory Interpretation in Australia, 8th ed (2014) Category: Principal judgment Parties: 2017/00100954: Steven Rapisarda (Applicant) Commissioner of Police, NSW :Police Force (Respondent)

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Judgment (24 paragraphs)

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Cases Cited (31)