Equal opportunity - Discrimination on grounds of sex, race and age ­ Whether police officers engaged in provision of services ­ Police officers ­ Vicarious liability ­ Less favourable treatment

Equal Opportunity Act 1984 (WA), s 4, s 8, s 20, s 36, s 46, s 66V, s 66ZF, s 161

Police Act 1892 (WA)

Police Act 1990 (NSW), s 6(2)(a)

State Administrative Tribunal Act 2004 (WA)

Cheng v Commissioner of Police, NSW Police [2006] NSWADT 321

Commissioner of Police, NSW Police Service v Estate of Russell [2001] NSWSC 745

Dare v Hurley [2005] FMCA 844

Farah v Commissioner of Police of the Metropolis [1998] QB 65; [1997] 1 All ER 289; 1 WLR 824

IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1

Lambe v Anti-Discrimination Commission and Commissioner of Police (2001) NTMC 54

Mooney v Commissioner of Police, New South Wales Police Service (No 2) [2003] NSWADT 107

Rainsford v Victoria [2007] FCA 1059

Rice v Connolly [1966] 2 All ER 649

Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349

1 Two brothers, Sheldon and Tyson Richards, brought a claim against the Commissioner of Police on the basis that the Commissioner was vicariously liable for certain alleged discriminatory conduct on the part of two police officers in Kalgoorlie on 29 December 2006. The two brothers had been engaged in a fight on Hannan Street which the police attended. The applicants alleged that the police refused to escort them out of danger, failed to provide first aid to Sheldon Richards and failed to call an ambulance when requested to do so, and that the police officers thereby treated them less favourably than they would have treated someone of different characteristics of race, age or sex.

2 After the brothers left the scene of the initial incident, they were attacked again, and Tyson Richards was very seriously injured. The same two police officers that had dealt with him in relation to the first incident attended after the second incident. The applicants alleged that, at the second incident, the police acted towards them in a discriminatory way by failing to administer first aid to Tyson Richards.

3 Because discriminatory behaviour contravenes the Equal Opportunity Act where the conduct is associated with the provision of goods or services, the Tribunal needed to consider whether, at the incidents in question, the police were engaged in the provision of services. It concluded that the police were engaged in providing a service in the relevant sense.

4 The Tribunal examined the evidence in relation to the two incidents. It concluded that the allegations as to a failure to administer first aid at either incident were not made out on the evidence. The Tribunal concluded that the police did decline to escort the brothers and their associates from the scene of the first incident, and that no ambulance was called to the first incident. The Tribunal concluded, however, that the conduct of the police did not involve treatment less favourable to the applicants than would have been accorded to any other person, and that, in any event, there was no basis to conclude that the actions of the police were influenced in any way by considerations of race, age or gender. Accordingly, the application was dismissed.

5 Sheldon Richards (Sheldon) and Tyson Richards (Tyson) allege that certain police officers acted towards them in a way which discriminated against them on the basis of race, sex and age on the night of 29 December 2006. On that night, Tyson and Sheldon, who are brothers, and a relative Jaylin Sambo (Jaylin), who is their nephew, were in Hannan Street, Kalgoorlie talking with friends. They were approached by a group of men of Maori origin (who we will refer to for convenience as 'the Maori group'), and a fight broke out. Sheldon suffered a broken jaw as a result of that fight. The police attended, the fight was broken up and the protagonists left the scene. We will refer in these reasons to those events as the first incident.

6 The applicants allege that, at the first incident, the police behaved in a discriminatory manner by reason of the applicants' race, age and sex by:

1. refusing to escort them out of danger when requested to do so on reasonable grounds of apprehension and fear of further attacks from the Maori group;
2. failing to provide first aid to Sheldon following the first incident; and
3. failing to call an ambulance when requested to do so because 'he felt he had a broken jaw'.

7 After the first incident, Sheldon; (then aged 19), Tyson (then aged 17) and Jaylin (then aged 20) left Hannan Street on foot, turning into Maritana Street with the intention of going to the hospital. They were then set upon by members of the Maori group. Tyson was seriously injured in that assault. The assailants fled and the police subsequently attended the scene. We will refer in these reasons to those events as the second incident. The applicants allege that the police acted in a discriminatory manner towards them during the second incident by reason of their race, age and sex in that they failed to administer first aid to Tyson when they arrived.

8 In relation to discrimination on the basis of race, the applicants rely on s 46 of the Equal Opportunity Act 1984 (WA) (EO Act). That section provides

It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's race ­

(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

(b) in the terms or conditions on which the first­mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c) in the manner in which the first­mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

9 In relation to the allegation of discrimination on the ground of sex, the applicants rely on s 20 of the EO Act which provides:

It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's sex, marital status or pregnancy ­

(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

(b) in the terms or conditions on which the first­mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c) in the manner in which the first­mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

10 In relation to the allegation of discrimination on the basis of age, the applicants rely on s 66ZF of the EO Act which provides:

(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's age ­

(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

(b) in the terms or conditions on which the first­mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c) in the manner in which the first­mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

(2) Nothing in subsection (1) applies to or in respect of ­

(a) bona fide benefits, including concessions, provided to a person by reason of his or her age; or

(b) holiday tours offered or provided to persons who are of a particular age.

[Section 66ZF inserted by No. 74 of 1992 s. 19.]

11 Section 161 of the EO Act provides that an employer is vicariously liable for unlawful acts done by an employee in connection with his or her employment. It is on that basis that the Commissioner of Police (Commissioner) is named as respondent to the proceedings, and the Commissioner accepts that, if the officers concerned are guilty of unlawful discrimination, s 161 of EO Act renders him liable for that conduct.

12 In order to determine the applicants' claim, it is necessary to determine:

1. what actually occurred at each of the first and second incidents;
2. whether at each of the incidents, the police were engaged in the provision of services to the applicants so as to bring their conduct within the category of conduct rendered unlawful by s 20, s 46 and s 66ZF; and
3. if so, did the police act in a way which discriminated against the applicants in the sense described in s 20, s 46 and s 66ZF of the EO Act.

13 Around 6 pm on Friday, 29 December 2006, Sheldon, Tyson, Jaylin and Bullaroo Kingsley came together socially. Different witnesses used different names and described different relationships between themselves and Bullaroo Kingsley, but nothing turns on those differences. We will refer to him in these reasons as Bullaroo. They spent time in various places, with different friends and family, sometimes together and sometimes separated, before finally meeting up together around 2 am on Hannan Street outside of the Dome café. As they were standing talking, the Maori group approached them. According to Sheldon, there were approximately five or six Maori males. Jaylin's recollection was that there were three, and Tyson spoke of 'a big group of Maori men' approaching them.

14 One of the Maoris said to Bullaroo words to the effect 'you've got your brothers and I've got mine. Let's battle'. Bullaroo responded to the effect that the Maori man who had made that comment had mistaken him for somebody else. According to each of Tyson, Sheldon, and Jaylin, the Maori man then punched Bullaroo in the face. A fight between those two then ensued. A second Maori man then approached Sheldon and punched him in the face, causing him to stumble sideways. Sheldon's recollection of what happened next was, quite understandably, somewhat uncertain, but he recalled a woman approaching him and swinging her handbag at him. Eventually he found himself on the roadway towards the opposite kerb from where he was when the fight broke out. He recalled the person who had punched him shaping up to punch him again when he received a blow to the side of his head which caused him to fall to his knees. While he was on his knees, his assailant approached him, grabbed him by the head with both hands and kneed him three times to the face. He recalled then being tackled by somebody else from the side, and being held down on his stomach.

15 It is clear that, whilst Sheldon was being assaulted, other skirmishes were taking place in the vicinity.

16 At that point, the police arrived. The first police on the scene were Senior Constable Shane O'Neill and Constable Daniel O'Connor. Constable O'Neill said that when he arrived he did not see any punches or blows being exchanged, but saw a male person, who he subsequently ascertained to be Rongohiere Nere Keene, holding down Sheldon. He then observed a security officer from the nearby De Bernales Tavern, one Owen Edmunds, move in and ensure that Sheldon stayed on the ground after Keene released him. Constable O'Neill then identified himself to Keene as a policeman, and moved him towards the police vehicle where he had a conversation with him. Constable O'Neill then spoke to two of Keene's friends, and obtained details from them about the incident. By this stage, another police car had arrived, and Senior Constable Simon Sustek and Constable Stephen Clarke took over responsibility for dealing with Sheldon and his group.

17 It is the conduct of either Constable Sustek or Constable Clarke that is the subject of complaint in relation to the first incident. While the accounts of the different witnesses as to what then occurred differ to some degree, there is a substantial amount of consistency in their evidence.

18 According to Sheldon, when the police arrived, he was being held down by someone who had his knee in Sheldon's back. The man got off his back and police took him to the side of the road outside of the front of the post office. He said that the police asked what had been happening, and he told them that he thought his jaw was broken and asked for a lift to the hospital. He said that the policeman replied that he 'wasn't a taxi service' and took hold of his jaw, moved it from side to side and told him to open his mouth. He complained about the pain from that action, and said that the policeman replied that he had nothing but a broken tooth.

19 At some point, the police asked Sheldon to identify himself. Sheldon said that because he couldn't speak, he handed his wallet to the policeman because it contained identification.

20 Under cross­examination, Sheldon said that Hannan Street was quite busy that night, and at the time of the incident there were people coming out of the various licensed premises in Hannan Street. He confirmed that he asked the police for a lift to the hospital, but said that he didn't ask them to call an ambulance. He said that the police did not offer to call an ambulance. He said that he simply wanted to get out of the area because of concern about future problems with the Maori group. In his statement given to the police shortly after the incident, which he confirmed as true in his evidence before the Tribunal, he said that he 'asked the police to watch out for us'. In cross­examination, he said that he could not recall if the police had said they would keep an eye on Sheldon's group, but said that the police told them that there was a taxi rank up the road and that they had enough money to catch a taxi. It was clear that that comment was based upon the fact that Sheldon had provided his wallet to the police, and they had observed that he had money in his wallet. Sheldon said that they then moved off up Hannan Street towards the taxi rank.

21 Tyson gave a similar account of events. He said he remembered Sheldon telling the police that his jaw felt funny and that he may have broken it. He said that the police told Sheldon to 'show us your mouth' and proceeded to hold him by the bottom jaw and told him to open it. He said that he recalled the police saying that they thought it was just a broken tooth, and Sheldon swearing in pain when they moved his jaw. He also recalled the police replying that they 'were not a taxi service' when Sheldon asked them to 'help us out of this place'.

22 Tyson said that whilst this was occurring, the Maori group were continuously abusing them and shouting threats and racial abuse. He said that they asked the police officers 'what about them?', and the police replied 'we will watch you from here. Nobody will touch you.' He said that they then started walking toward the taxi line.

23 In his written statement of evidence, Tyson said that the police did not offer to call an ambulance, but had they offered, 'we would have taken it.' In cross­examination he confirmed that the police did not offer to call an ambulance, but said that 'we asked for them to call an ambulance', but that the police just laughed at them, and said that Sheldon had enough money to catch a taxi. In re­examination, Tyson was unsure whether they had asked for an ambulance to be called.

24 Jaylin also gave a similar account of the police speaking to Sheldon, Sheldon complaining that his jaw was broken, and the police inspecting inside Sheldon's mouth with a torch. He said that they requested a ride to the hospital, but were told to catch a taxi, and that the police said they were 'not a taxi service'. Jaylin said that they told the police to 'keep an eye on the Maori boys', and that they headed off toward the taxi rank.

25 Jaylin's written statement, made the day after the incident, gave a slightly different account of the conversation about going to the hospital from that which he gave in his oral evidence. In his written statement he said:

They told us to take Sheldon to the hospital and to go home. We asked the police for a lift and they told us to catch a taxi.

Sheldon said he was right and didn't want to go to the hospital.

We told the police there were more people across the road gathering and they [sic] said they wouldn't let anyone follow us.

We all walked off up Hannan Street, intending to go to the taxi rank outside the exchange.

26 Constable Sustek said that when he arrived at the scene of the first incident, he saw a crowd controller restraining Sheldon on the ground with his knee. He said that Constables O'Neill and O'Connor were already at the scene and standing in the centre of the median strip in Hannan Street talking to a group of Maori males. Constable Sustek said that Sheldon told him he had a sore jaw, but that he was able to maintain a conversation. He said that Sheldon's groups were 'in an excited state, and that everyone was talking at once'. He said that after speaking to Sheldon's group, he had a brief conversation with the Maori group, and then re­turned to Sheldon's group. Constable Sustek said that he may have shone his torch towards Sheldon's lip but that he didn't know what Sheldon's injuries were at that time. He said that he heard Sheldon ask for a lift, and thought that his response was to offer to call an ambulance but that someone in Sheldon's group said that that would not be necessary. He then said that he suggested they catch a taxi and pointed to the taxi rank which he thought was approximately 50 metres away and within view of where they were standing. He said that he asked whether Sheldon's group wished to make a complaint, that the response was that they 'just wanted to leave the area' and that he directed them to a taxi. He denied saying that 'we're not a taxi service' but accepted that he told the group that they could not take them to the hospital as they needed to stay in the area in case further fighting broke out. He said that while he was speaking to Sheldon's group, the Maori group was being spoken to by the other police officers, and there was no abuse being yelled between the groups at that stage.

27 In cross­examination, Constable Sustek said that he could remember Bullaroo saying that he wanted to leave the area and that Sheldon's group were concerned that there may be another fight.

28 Constable Clarke confirmed that when he arrived at the scene, he saw Sheldon being restrained by a crowd controller, Owen Edmunds, whom he knew worked at De Bernales Tavern. He said that they spoke to Mr Edmunds to ascertain what had taken place and instructed him to let Sheldon stand up as he was then calm and compliant. He then spoke to Sheldon, who commented that he had a sore jaw and that it could be broken. He confirmed that he asked Sheldon to move his jaw up and down and side to side which he did. He confirmed that he shone his torch into his mouth and saw some blood, but denied that at any time he touched Sheldon on the face or on any other position on his body. Constable Clarke said to Sheldon words to the effect that if he could still move his jaw it probably was not broken. He recalled another member of Sheldon's group also complaining that he had been hit in the mouth, and pulling his bottom lip down to reveal a small cut with a small amount of blood.

29 Constable Clarke said that Sheldon's 'group then collectively enquired if we could take them up to the hospital as they were concerned of further trouble from the Maori group'. He said that Sheldon did not want them to call an ambulance, and that in any event his own belief was that the injuries were not serious enough to require the attendance of an ambulance. He said that he advised Sheldon's group that it was not the role of the police to convey people to hospital unless it was an extreme emergency. He also said that he advised the group that they could catch a taxi and that he pointed to three vacant taxis waiting for a fare at the taxi rank approximately 100 metres further along Hannan Street. In cross­examination, Constable Clarke accepted that he may have said words to the effect that 'the police are not a taxi service'.

30 Constable Clarke said that the group continued to show concern about the presence of the Maori group, but that he told them there was a strong police presence in Hannan Street, and if they walked directly to the taxi rank they would be okay. He said that one member of the applicants' group said that they did not have any money and could not afford a taxi, but that he (Constable Clarke) responded that he had observed a large amount of cash in Sheldon's wallet when he had earlier produced identification.

31 Constable Clarke said that he did not hear any conversations between the two groups, or observe the Maori group yelling abuse and threats. He said that he then left Sheldon's group and they began to walk up Hannan Street towards the taxi rank. He and Constable Sustek then continued to conduct a slow vehicle patrol of Hannan Street.

32 We are satisfied that each of the witnesses to the incident gave their evidence honestly and endeavoured, to the best of their ability, to accurately recall the events which occurred. To the extent that there are discrepancies between their accounts, they are discrepancies which might reasonably be expected given the passage of time, and the different roles and perspectives of each witness in what was undoubtedly a tense and distressing situation.

33 Having regard to all of the accounts, we find that Sheldon did complain to Constable Clarke that his jaw was sore, and that he thought it might be broken. We find that Constable Clarke asked Sheldon to move his jaw while Constable Clarke shone his torch into the jaw to inspect his mouth. It is less clear whether Constable Clarke actually held Sheldon's jaw and endeavoured to manipulate it, and we are not prepared, given the conflict of evidence on that point, to find that he did so. It is not, in any event, a matter upon which, in our view, anything turns. We do accept that Sheldon's attempts to move his jaw caused him pain, and that he swore as a result of that pain. We accept that Constable Clarke formed the view that, given that Sheldon was able to hold a conversation with him, and able to move his jaw, the jaw was not broken. That assessment proved to be incorrect, but we accept that it was a view genuinely formed by Constable Clarke. In that regard, we are mindful of Sheldon's evidence that he handed his wallet to the police because he 'couldn't speak'. That evidence is inconsistent with Sheldon's own evidence that he said certain things to the police, and evidence to that effect by other witnesses; for that reason we do not accept that Sheldon could not speak, although no doubt he was in some degree of pain. It was reasonable for Constable Clarke to have regard to Sheldon's capacity to converse in assessing the extent of his injury.

34 We find that, while someone may have mentioned the possibility of calling an ambulance, there was no request made by Sheldon for them to do so. That is Sheldon's evidence and it is consistent with the evidence of Constables Clarke and Sustek. While, therefore, we find as a fact that no ambulance was called, the failure to call an ambulance was not a result of a refusal to do so by the police.

35 All witnesses agree that Sheldon, or someone in his group, asked the police to drive them from the area. We also accept that, in substance, the police responded that it was not their function to convey people to hospital, and we accept that it was probably said by words to the effect of those asserted by Sheldon and Tyson, namely that 'we are not a taxi service'. The significance of those words is a matter to which we will return later. We find that the police suggested that Sheldon and his group should go to the taxi rank and take a taxi to leave the area, and that a comment was made to the effect that they had sufficient funds to do so (as was the case). We also accept that Sheldon's group expressed concern about the continuing presence of the Maori group and about the prospect of further trouble. We also accept that the response was to the effect that they would be safe because the police would keep an eye on the situation.

36 We find that, while the police were on the scene speaking to the two groups, the Maori group were not shouting abuse at Sheldon's group. In that respect we accept the evidence of the police officers. Given that the police were in attendance, and each group was being interviewed, it is unlikely that the Maori group were shouting abuse. It may be that after Sheldon's group walked some way up Hannan Street toward the taxi rank, and the police resumed their patrol duties, some abuse may have been directed across the street. But, we find that, at the time Sheldon's group set off from the scene of the first incident, the situation had calmed down and no abuse was, at that point, being shouted at Sheldon's group

37 The applicants did not identify what the police should have done by way of administration of first aid following the first incident, but failed to do by reasons of Sheldon's age, race or gender. The evidence establishes that, in response to Sheldon's complaint that he thought his jaw was broken, Constable Clarke proceeded to make an assessment of Sheldon's jaw. He did not simply ignore the complaint. He formed a view that the jaw was probably not broken. The matter was left on the basis that Sheldon would catch a taxi to the hospital to have his injury attended to. The applicants' counsel conceded in closing submissions that the applicants had not identified what else should have been done by way of first aid, and nothing is apparent to the Tribunal in that respect. The allegation of failing to provide first aid is not made out on the facts.

38 After speaking with Constables Sustek and Clarke, Sheldon and his group moved off towards the taxi rank which was located further up Hannan Street, the other side of Maritana Street. Constables Sustek and Clarke continued their vehicle patrol. Shortly after, they drove past the Palace Hotel, which is on the corner of Hannan and Maritana Streets. Constable Clarke observed a Maori male who had been involved in the first incident walk in to the bar of the Palace Hotel. He and Constable Sustek decided to go to speak to the doorman of the Palace Hotel to make him aware of the presence of possible troublemakers. They did so, and then continued conducting more vehicle patrols of Hannan Street.

39 When Sheldon and his group reached the corner of Maritana Street, they changed their mind about catching a taxi and decided to walk to the hospital by turning left into Maritana Street. The hospital is approximately a ten minute walk from that intersection. Tyson's recollection was that he suggested that they should go to a shishkebab shop near the taxi rank on Hannan Street to try to call his sister to arrange a lift home. However, Sheldon said that he was in pain and wanted to go to hospital. They therefore headed off up Maritana Street. They said at that stage they were being abused by members of the Maori group from across the road at the Palace Hotel.

40 Having decided to walk to the hospital, Sheldon, Tyson, Jaylin and Bullaroo walked along Maritana Street. They passed the first intersection with Brookman Street and continued towards the intersection with Dugan Street. As they were walking, they heard people running behind them. They stopped and turned. They saw a group of Maori men, apparently different people from those who had been involved in the earlier altercation, running towards them. The men stopped running when they caught up with Sheldon's group. One of them punched Sheldon who put up his hands to protect his face. Jaylin said that, when he heard them, he moved out across the road to an island in the middle of the carriageway. He heard shouting and ran to grab a wooden picket from a fence to defend himself before running back across the road to help the other boys. As he was running back he saw Tyson on the footpath on the corner of Dugan and Maritana Streets. He saw a male person holding onto a brick pillar on the side of the road, and stomping on Tyson's head. He said that there were two other men also kicking Tyson on the ground. As he got to the island in the middle of the road, Jaylin was shouting and swearing at the men assaulting Tyson. The men then ran off and as Jaylin continued across the road, the police wagon pulled up and the police told him to put down the picket that he was holding.

41 Sheldon, having himself been punched, also saw Tyson on the ground being kicked by a number of men. He said the police then arrived, and the Maori men stopped kicking and punching Tyson before running away. He said he then ran over to Tyson who was unconscious. Sheldon said that the police were focussed on Jaylin because he 'had a weapon or something' (obviously a reference to the picket which Jaylin said he had obtained) but Sheldon was giving his attention to Tyson on the ground. He said that the police told him not to touch Tyson, and Jaylin came over and put him in the coma position. Jaylin also said that, having put the stick down, he turned and ran towards Tyson and placed him onto his side, put him into the recovery position and checked his airways to make sure he was breathing properly, which he was. He said the police then came over and called an ambulance. According to Jaylin, the police were trying to calm Sheldon and Bullaroo down.

42 The police who arrived were Constables Clarke and Sustek. Constable Clarke confirmed that, at about 2.45 am, they were driving north along Maritana Street when they observed a man, who they subsequently ascertained to be Jaylin, carrying a white picket fence above his head in a threatening manner on Maritana Street. They activated their emergency lights and ordered Jaylin to put the fence picket on the ground.

43 Constable Clarke said that Jaylin was extremely excited and was yelling 'they've just stomped on his head'. Constable Clarke then saw Tyson lying on the footpath and he said that both he and Constable Sustek immediately went over to check on Tyson's welfare. He said that Constable Sustek spoke to Tyson, but that there was no response, and he appeared to be unconscious but breathing. He said he radioed to police base for an ambulance and for urgent assistance. He said that he then noticed that Tyson had been placed in the recovery position, and he believed it was Constable Sustek who did that as he was the only person near Tyson and was kneeling beside him trying to get a response. Police in another vehicle then arrived and, after speaking to Constable Clarke, departed on a search for those involved in the incident. An ambulance arrived a few minutes later. They said that both Jaylin and Sheldon, who were both present at that stage, were very upset and began to yell abuse at the ambulance officers. He said that he had to restrain them from interfering with the first aid attention being given by the ambulance officers and that he spoke to them to calm them down. He said he then instructed Sheldon to get into the ambulance with Tyson and go to the hospital. He and Constable Sustek then conducted vehicle patrols of Hannan Street in an attempt to locate possible offenders.

44 Constable Sustek agreed that, when they arrived at the scene of the second incident, they initially told Jaylin to drop the picket, and that Jaylin directed their attention to Tyson. Constable Sustek said that he then went to Tyson and tried to speak to him. He said that there was no response and that Tyson was unconscious but breathing. He said that he placed Tyson in the recovery position and tried to monitor him until the ambulance arrived. He said that he did not see anyone else provide first aid to Tyson while he was at the scene. He said that whilst trying to monitor Tyson, he also had to control Jaylin who was yelling abuse and repeatedly picking up the picket. He agreed with Constable Clarke that it was necessary to keep Jaylin and Sheldon away as the ambulance officers attended to Tyson, as they were both shouting abuse at the ambulance officers.

45 The allegation in relation to the second incident is a failure to administer first aid, and in that way to have acted in a discriminatory manner towards Tyson by reason of his age, race or sex. In our view, that allegation fails on the facts, regardless of whose version of events is accepted.

46 The applicants did not identify the precise nature of the first aid that should have been administered, other than that Tyson needed to be put into the recovery position. All witnesses agree that Tyson was, in fact, put into the recovery position. The disagreement is as to who put him in that position. If the evidence of Constables Sustek and Clarke is accepted, it was Constable Sustek who did so. If the evidence of Sheldon and Jaylin is accepted, it was Jaylin who did so. There is no suggestion in Jaylin or Sheldon's evidence that Jaylin administered first aid because of a failure or refusal to do so by either of the police officers. Rather, their evidence is to the effect that Jaylin, having complied with the police request to put down the fence picket, immediately ran to Tyson and put him in the recovery position. It is common ground that the police then promptly called for an ambulance. If Jaylin's evidence is accepted, there was nothing more for the police to do by way of administering first aid. If Constable Sustek and Constable Clarke's evidence is accepted, then they did everything by way of first aid which, on the applicants' own case, was required in the circumstances. It is not, therefore, necessary for us to make a finding as to who placed Tyson into the recovery position, but because a deal of evidence was directed to that question, we will do so. It is clear to us that Jaylin is trained in first aid, and we have no doubt that he would have understood the requirement to place Tyson into the recovery position and ensure that his airways were clear. On the other hand, we accept that Jaylin was, quite understandably, in an agitated state, and his recollection of events may not be clear. On balance, we prefer the evidence of Constable Sustek for that reason. In doing so, however, we acknowledge that, as in relation to the first incident, we consider that all witnesses gave their evidence as accurately as their memories permitted.

47 In relation to the second incident, however, the applicants' case must fail simply because the evidence establishes that the required first aid was administered to the extent that the applicants contend it should have been.

48 Section 46 of the EO Act makes it unlawful to discriminate on the ground of a person's race either by refusing to provide, or make available, goods or services, or in the manner in which those goods or services are made available. Discrimination in the same way but on the basis of person's gender is rendered unlawful by s 20 of the EO Act, and on the basis of age by s 66ZF. In order for discriminatory conduct to be rendered unlawful, the conduct must be concerned with the provision of goods or services. Obviously, in this case, the relevant question is whether or not the conduct of the police involved the provision of services.

49 Services are defined in s 4 of the EO Act to include 'services of the kind provided by a government, a government or public authority or a local government body'.

50 In IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 (IW) at [11], Brennan CJ and McHugh J said:

The term 'services' has a wide meaning. The Macquarie Dictionary relevantly defines it to include 'an act of helpful activity'; 'the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance'; 'the organised system of apparatus, appliances, employees, etc., for supplying some accommodation required by the public'; 'the supplying or the supplier of water, gas, or the like to the public'; and 'the duty or work of public servants'. But wide as the definition is, in our opinion it is not capable of including a refusal to exercise the statutory discretion provided for by the Town Planning and Development Act 1928 (WA) and Clause 40 of the City of Perth City Planning Scheme to approve the use of premises for use other than as a shop.

51 Dawson and Gauldron JJ noted (at 23) that the word 'services' should be read as having its ordinary and broad meaning. They drew support for that position from decisions given in respect of anti­discrimination legislation in the United Kingdom, noting that:

It has also been held to extend to 'those parts of a police officer's duties involving assistance or protection of members of the public - Farah v Commissioner of Police of the Metropolis (1998) QB 65 at [78] per Hutchison LJ.

52 Dawson and Gauldron JJ disagreed with Brennan CJ and McHugh J as to whether or not, in considering applications for planning approval, a local government was providing a service. They concluded that the Local Government was providing a service being 'the exercise of a discretion to grant or withhold planning approval'.

53 Gummow J also took the view that the local government could be considered as providing a service in the context of the discharge of its statutory functions. He said, at 44:

An issue of characterisation is involved. Each statute operates in aid of particular ends considered important by the legislature. There is no reason in logic or good sense to deny the proposition that the Council may be engaged in the provision of services, not only to the community as a whole, but also to individual applicants who invoke the exercise of the powers of the Council under the town planning law. There is no dichotomy here between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions (119).

The point may be illustrated by reference to the decision of the English Court of Appeal in Farah v Commissioner of Police of the Metropolis (120). Otton LJ said (121):

[P]olice officers perform duties in order to prevent and detect crime and to bring offenders to justice. They are also vested with powers to enable them to perform those duties. While performing duties and exercising powers they also provide services in providing protection to the victims of crimes of violence.

The plaintiff had sought such protection. Her claim was that because of her race she did not obtain the protection others would have been afforded and that she had suffered unlawful discrimination within the meaning of s 20 of the Race Relations Act 1976 (UK), by reason of the deliberate omission to provide services to her. The Court of Appeal held that such a claim was maintainable against the police.

54 Farah v Commissioner of Police of the Metropolis [1998] QB 65; [1997] 1 All ER 289; 1 WLR 824 involved a claim by a young Somalian woman who had called for police assistance following an attack on her by some white teenagers. She alleged that instead of helping her and seeking to detain her attackers, police detained and charged her with assault. She was subsequently acquitted with no evidence being offered against her. She alleged that the police officers' conduct amounted to unlawful racial discrimination. The question arose as to whether or not the police were providing services to the public for the purposes of the unlawful discrimination provisions of the Race Relations Act 1976 (UK). Hutchison LJ concluded that those words 'are entirely apt to cover those parts of a police officer's duties involving assistance to or protection of members of the public.' His Lordship continued:

What is said is that the service sought by the plaintiff was that of protection and that she did not, because of her race, obtain the protection of others that would have been afforded. It seems to me that that is no less the provision of a service than is the giving of directions or other information to a member of the public who seeks them.

55 Hutchison LJ distinguished between the role of police in providing protection to a member of the public and the action of police in pursuing, arresting or charging alleged criminals. That distinction was questioned by Sundberg J in Rainsford v Victoria [2007] FCA 1059 although His Honour did not need to pursue the question (at [73]).

56 Counsel for the respondent contended that a police officer will be providing services by way of prevention and detection of crime to members of the public when investigating the allegation that a criminal offence has been committed, but they are not providing services to an individual until after that person has been arrested. She relied for that submission on the decisions in Cheng v Commissioner of Police, NSW Police [2006] NSWADT 321 (Cheng): Commissioner of Police, NSW Police Service v Estate of Russell [2001] NSWSC 745 (Estate of Russell) at [74]; Lambe v Anti-Discrimination Commission and Commissioner of Police (2001) NTMC 54 (Lambe) at [52].

57 Cheng was a decision of a Deputy President of the Administrative Disputes Tribunal in New South Wales. The Deputy President referred to 'binding authority for the proposition that NSW police are only providing a service to an individual suspect (as distinct from the community at large) after they have arrested that person.' She referred to Estate of Russell in support of that proposition. The claim in Cheng involved the apprehension of Mr Cheng by a police officer who was called as a result of an argument between a bus driver and Mr Cheng. The Deputy President referred to the provisions of s 6(2)(a) of the Police Act 1990 (NSW) which identified the functions of the NSW Police as including 'to provide police services for New South Wales'. Section 6(3)(a) and (b) of that Act defined services to include:

(a) services by way of prevention and detection of crime; and

(b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way ...

58 She relied on the reasoning expressed by Sully J in Estate of Russell at [43] and [44] when it was said:

It seems to me that the Police Service of New South Wales, as established by section 4 of the Police Service Act, has by reason of sections 6 and 7 of that Act, duties, functions and characteristics sufficient to establish it as a public authority in the sense discussed by the High Court. The Police Service of New South Wales cannot operate, relevantly, except by and through police officers who are serving members of the Service. It seems to me to follow that services provided by such serving police officers are services provided by a public authority in the sense contemplated by the Anti­Discrimination Act.

A correct assessment of the conduct of the individual police officers in the course of their pursuit and arrest of the late Mr. Russell is in my opinion as follows:

The police officers who took part in the pursuit of Mr. Russell were providing to the community at large services of the kind described in section 6(3)(a) and (b) of the Police Service Act.

The police who took part in the arrest of the late Mr. Russell were also thereby providing to the community at large services of those two kinds.

As soon as the late Mr. Russell had been formally arrested, and had passed thereupon into police custody, the arresting police, and any police officer who had any part at all in the way in which Mr. Russell was subsequently handled; or who witnessed the way in which Mr. Russell was handled; became thereupon charged with a public duty to provide to the late Mr. Russell police services by way of the protection of his person from injury or death, and the protection of his property from damage, 'whether arising from criminal acts or in any other way'.

59 Lambe is a decision of the Local Court of the Northern Territory on appeal from the decision of the Anti­Discrimination Commissioner. It is apparent that the plaintiff's complaints in that matter are lengthy, but the learned magistrate's analysis identified that the conduct complained of included preferring a charge on Australia Day, service of the summons related to that charge and the manner of execution of a search warrant. The magistrate found (at [52]) that none of those activities constituted a service on the basis that:

Generally when police are performing any duties involving the investigation, charging (or possible charging) and prosecution of alleged criminal activity they are not providing any service to a possible or actual defendant, and therefore no valid complaint may be made under the Act.

60 In this State, the Police Act 1892 (WA) (Police Act) does not expressly identify the functions of police officers. Section 10 of the Police Act requires any person holding office as a policeman to subscribe to an engagement by undertaking to 'see and cause Her Majesty's peace to be kept and preserved' and prevent, to the best of that person's power, all offences against the peace. Other than to confirm that police officers perform a function of assisting in the keeping of the peace, the terms of the Police Act do not assist in resolution of the question as to whether or not they are engaged in the provision of services in their various activities.

61 Notwithstanding the absence in the Police Act of an equivalent of the Police Act 1990 (NSW) provisions defining service, it is clear that police officers in this State perform the functions not only of prevention and detection of crime, but also the protection of persons from injury or death, and restoring and maintaining peace and good order when they intervene in situations where there is a disturbance of the peace or where an offence has been, or may be, committed. We do not take that proposition to be in issue, and it is consistent with the evidence of the police officers in this case. All four police officers gave evidence to the effect that, the first incident having occurred, they took steps to ensure that no further fighting erupted. Constable O'Connor described his role at the scene as 'watching that the group were not attacking each other.' Constable O'Neill said that Hannan Street at that time of night was a 'hotspot' and required police presence. He said that in situations of disturbance, police will assess what should be done having regard to time, place and circumstances, and exercise their discretion in light of that evaluation. Constable Sustek's evidence was to the same effect. Constable Clarke gave as a reason for not taking Sheldon to hospital that his duty was to be in Hannan Street patrolling so as to prevent any further disturbances.

62 A similar description of the role of a police officer was given in Rice v Connolly [1966] 2 All ER 649 at 651, albeit in a different context.

63 In our opinion, as Gummow's discussion in IW of the decision in Fahar indicates, police officers, when exercising their role of restoring or maintaining peace and good order, for the protection of the public, are engaged in the provisions of services within the meaning of that expression under the EO Act. Whilst undoubtedly those services are being provided to the public in general, to the extent that they are required to ensure the safety and protection of persons involved in the event in respect of which they are performing their services, they can be considered to be providing services to the individuals concerned. As Gummow J noted, 'there is no dichotomy ... between the discharge of statutory functions and the provision of services to those seeking the discharge of those services.' In the same way, there is no dichotomy between the services provided by Police Officers for the general public benefit, and the provision of services to those seeking the discharge of those services.

64 In the present case, by the time Constables Clarke and Sustek arrived at the first incident, the fighting between the two groups had ended following the intervention of Senior Constable O'Neill and Constable O'Connor and Mr Edmunds. While their function undoubtedly included the investigation of the incidents which had taken place, they were clearly involved in restoring the peace and preventing, so far as possible, further disturbances. Part of the service of maintaining the peace and protection of the public involved taking appropriate steps to avoid the danger or risk to health of those involved at the scene.

65 In IW Brennan CJ and McHugh J said at 16 ­ 17:

In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides.

66 In Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 404 ­ 405, McHugh J said:

Accordingly, the goods or services which must be identified are those goods or services which are relevant to the complainant or any person or persons whom the complainant represents. Before there can be a finding of discrimination by a person in relation to the provision of goods or services, therefore, the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination. If a person is alleged to have refused to perform services, e.g., the services in question must be identified in sufficiently concrete terms to enable the Board to determine whether or not there has been a refusal to perform those services. What is a sufficiently precise identification of the service in one case may be too general in another. If the discrimination alleged was the refusal to allow impaired persons to travel on trams to St Kilda, it would be meaningless to identify the service provided as 'the public transport system'. If, however, the discrimination alleged was the refusal to allow impaired persons to travel on trams generally, 'transportation of members of the public by trams' might identify the service with sufficient precision to enable the relevant issues to be resolved.

67 In this case, the applicants, in their amended statement of issues, facts and contentions, have expressed the issues relating to service as follows:

(i) did the police officers' alleged refusal to escort the applicants out of danger constitute a refusal of a service within the meaning of the Act?

(ii) did the police officers' alleged failure to provide first aid to the first applicant, or to request an ambulance for the first applicant, constitute a refusal of a service within the meaning of the Act? and

(iii) did the police officers' alleged failure to provide first aid to the second applicant constitute a refusal of a service within the meaning of the Act?

68 Inherent in those issues is the proposition that the service being provided by the police on the night in question was a service of escorting people out of danger, providing first aid or procuring the attendance of an ambulance at the scene. No doubt that level of precision is alleged in order to meet the requirements outlined by McHugh J in Waters. The consequence is, however, to focus the inquiry on considerations as to whether police are engaged in the provision of service of providing transport to hospital or administering first aid. In our view, a broader description of the service involved in the facts of this case is more apt. That service is the service of restoring and keeping the peace, and protecting the public, including individuals involved in the events, from physical danger and jeopardy to their health. The performance of that service required the police to assess the situation and the risks of harm faced by those with whom they were dealing, and to take appropriate action to remove or minimise those risks. In the context of that general service, the allegations of particular failures by the police to do certain things should be seen as particulars of the failure to provide the broadly described service, or in other words, particulars of the manner in which it is alleged the service was provided in a way less favourable to the applicants than it would have been to a person of different characteristics of race, age or gender.

69 In our view, following their intervention at the first incident, the police officers concerned were providing a service to the public of restoring and maintaining peace, and avoiding danger to the public. Provision of that service involved provision of services to individuals who might be in danger or whose health or physical wellbeing was threatened. The particular failings alleged in this case can, and in our view should, be fairly read as particulars of the way the applicants allege the police provided the service in a discriminatory manner.

Did the police discriminate against the applicants?

70 A person discriminates against another person where the discriminator treats that person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat another person without the relevant characteristics of the aggrieved person ­ EO Act s 8 in relation to sex discrimination; s 36 in relation to racial discrimination, s 66V in relation to age discrimination. To amount to discrimination, the less favourable treatment must be (relevantly to this case) 'on the ground of' sex, race or age. In other words, there must be a causal connection between the discriminatory reason and the relevant conduct. The nature of the causal connection was explained by Kirby J in IW at 63 when he said:

The object of the Act is to exclude the unlawful and discriminatory reasons from the relevant conduct. This is because such reasons can infect that conduct with prejudice and irrelevant or irrational considerations which the Act is designed to prevent. Because persons faced with allegations of discrimination, genuinely or otherwise, assert multiple and complex reasons - and because affirmative proof of an unlawful reason is often difficult - the Act has simplified the task for the decision-maker. It is enough that it be shown that the doing of the act was 'by reason' or 'on the ground' of the particular matter in the sense that the unlawful consideration was included in the alleged discriminator's reasons or grounds. It must be a real 'reason' or 'ground'. It is not enough to show that it was a trivial or insubstantial one. But once it is shown that the unlawful consideration truly played a causative part in the decision of the alleged discriminator, that is sufficient to attract a remedy under the Act.

71 We have found that, as a matter of fact, the complaint of a failure to provide first aid to Sheldon at the first incident, and first aid to Tyson at the second incident, must fail. What remains is to consider whether the refusal to drive Sheldon to hospital (or the group from the area), and the failure to call an ambulance, was less favourable treatment than would have been extended to a person of a different age, race or gender, and if so, whether that less favourable treatment was undertaken by reason of the applicants' age, race or gender.

72 In order to determine whether the conduct of the police officers towards Sheldon was less favourable than it would have been to another person in the same or not materially different circumstances, it is necessary to identify the hypothetical other person against whom the comparison can be made ­ Dare v Hurley [2005] FMCA 844; Mooney v Commissioner of Police, New South Wales Police Service (No 2) [2003] NSWADT 107. The applicants' case was put on the basis that 'juveniles' or 'senior citizens' would have been treated differently, that had the applicants been females, they would have been treated differently, or had the applicants been of a different race, they would have been treated differently.

73 Evidence was given by Elizabeth Sambo, an aunt of Sheldon and Tyson. She gave evidence that on 31 December 2006, the day after the assault on Sheldon and Tyson, she was sitting outside a shop on the corner of Cassidy Street and Hannan Street, Kalgoorlie. It was shortly before midnight. She saw two police officers in a police vehicle. She recognised them as officers who had been involved in an incident which she had witnessed involving the arrest of a nephew on the previous night. That arrest had nothing to do with Sheldon or Tyson Richards, and the police officers were not any of the officers who had attended at the first incident.

74 When she saw the police car, one officer was in the front seat driving, and the other officer was in the back seat. There were two young white girls in the car, both about 19 or 20 years old. Elizabeth Sambo says that the girls appeared intoxicated and in a merry mood. She saw the girls alight from the vehicle and kiss the police officers goodbye. The two officers then drove off. Ms Sambo said that she felt angry because the police had not wanted to take her nephews to the hospital, but were carrying young white girls in their patrol car.

75 That evidence was adduced to support the proposition that the police do, on occasions, provide lifts to people.

76 Apart from that evidence, the applicants' case was put on the basis of the appropriate comparator for the purposes of the proceedings was a person who was not Aboriginal or of a different age or gender.

77 Constable Clarke was questioned about whether he would have treated people with other characteristics differently. He was asked whether, if it were a group of females who had been attacked, he would have taken them to the hospital. He responded that he did not think that he would have. He said that if it were a juvenile involved, he would probably contact the parents or take the juvenile to their guardian's house. He acknowledged that if he believed that there was a danger to a person, they would remove the danger, and that may or may not involve removing the person from the scene of the danger. Constable Clarke said that if a person needed urgent medical attention, he would call an ambulance, but he did not consider it to be the proper role of police to convey a person to hospital for a minor injury. He said that in his career, he had taken arrested persons to hospital, but had never conveyed an unarrested person to a hospital.

78 Constable Sustek said that he would convey a juvenile involved in a situation of danger to their guardian utilising authority conferred on police under the Child Welfare Act. He said that only in extreme life threatening emergencies would he convey a person to hospital. He otherwise suggested that each situation was different and needed to be assessed in its own circumstances. Constable Sustek said that he had never conveyed anyone to hospital although he had heard of other police officers doing it where there were life threatening conditions and no ambulances were available.

79 Constable O'Neill said that he would personally only provide an escort for an adult person in very limited circumstances, none of which were applicable to the situation at the first incident. He said that if he encountered a juvenile, then the situation would be different as he had a duty to ensure juveniles have proper care and attention. He said he would be likely to escort a juvenile home in a police car if the juvenile appeared to be in need of care and attention. He said he would make an assessment based on the time, place and circumstances of the encounter. As mentioned above, Constable O'Neill said that, in situations of disturbance, police would assess what should be done having regard to time, place and circumstances.

80 Constable O'Connor said that he would consider giving a person a lift, and had done so in the past, if he considered there to be a situation of danger. He gave examples of where persons were heavily intoxicated, or in immediate danger such as in a domestic violence situation, or sometimes where juveniles were involved. In relation to the situation involving the first incident, Constable O'Connor said that he was not aware of there having been any request to escort the applicants from the area, but in any event it was necessary to maintain every officer at the time to monitor the situation in Hannan Street where there were people coming onto the street from the licensed establishments closing at that time. In those circumstances, given that there were several in the applicants' group, he did not consider than any request to escort people from the scene could have been accommodated.

81 We accept that Constables Sustek and Clarke made an assessment that Sheldon and his group could safely leave the scene of the first incident, by walking to the taxi rank and taking a taxi. In other words, they assessed whether Sheldon's group were at risk or in danger and concluded that it was not necessary to escort them from the area in order to protect them from further attack. While we have found that one of the policemen, probably Constable Clarke used words to the effect 'we are not a taxi service', we do not consider that the use of those words implies that the applicants' group were being treated in a dismissive or offhand manner, or in a manner different from how anybody else in the same situation might have been treated.

82 The evidence of the police officers, which we accept, is that, except in particular circumstances which did not apply in this case, it is not their practice to convey an injured person to hospital. There is no basis, on the evidence, to conclude that their refusal to do so involved any different treatment of Sheldon than would have been extended to any other person. Similarly, the fact that an ambulance was not called, especially in the absence of any request to call one, does not amount to conduct of any different nature than might have occurred had any other person been in the position of Sheldon or any member of his group.

83 We acknowledge that Tyson was 17 years old at the time of the incidents, and was thus a juvenile. There is no evidence that the police made any enquiry about, or were told, Tyson's age. The circumstances in which the police witnesses said that they might transport a juvenile did not exist at the time of the first incident. They had assessed, after the first incident, that there was no immediate danger to Tyson and his group, and there is no basis upon which they might have considered Tyson to be in need of care and protection. He was, of course, in the company of his adult relatives or friends.

84 It follows that, in our view, the evidence does not support the proposition that Sheldon or his group were treated in any manner less favourably than any other person, in the same circumstances, would have been treated.

85 Having reached that conclusion, it is unnecessary to make any finding as to whether or not Sheldon's group's age, gender or race was a factor which influenced the conduct of the police officers concerned. For completeness, however, we would observe that we do not consider that the evidence supports any conclusion that the applicants' race, gender or sex played any part in influencing Constable Clarke and Sustek's decision not to convey Sheldon to hospital or escort his group from the scene. Rather, we accept that the decision was based upon an assessment made by the police that Sheldon and his group could safely leave the area by moving to the taxi rank and departing from there, either to the hospital or to their home. In fact there is no basis to conclude that that assessment was not correct, and had the group not changed their mind and chosen to walk up Maritana Street, the subsequent events may not have occurred. But even if, in hindsight, the decision by the police as to how the matter should be handled was wrong, or not the best decision in the circumstances, it does not follow that the decision was made because of race, age or gender.

86 Counsel for the applicants tendered a document entitled Strategic Policy on Police and Aboriginal People, a policy statement published by the Western Australian Police Service. The introduction to that document explains:

This policy is aimed at clarifying the role of the Police Service and stating the commitment of the agency to ensure that Aboriginal people receive a comprehensive and consistent policing service. It is clear that several aspects of the service provided to Aboriginal people have been less than satisfactory for a number of reasons. It is also clear that the relationship with Aboriginal people has suffered from historical legacies that include the police role in enforcing laws, carrying out government policy and the resulting difficulty in building trust between Police and Aboriginal people.

87 The policy rationale recognises that historically there have been areas of inequity in the protection of, and services provided to, Aboriginal people by police.

88 The police officers who gave evidence at the hearing were questioned about their familiarity with the policy statement. None was familiar with its terms. That is regrettable, given that the introduction recites that the drivers for the establishment of the policy include not only the strategic direction of the police service, but a number of government directions and major inquiries in review reports, and the Aboriginal Justice Agreement. The unfamiliarity with the policy on the part of the officers concerned suggests a lack of adequate dissemination of the policy to those police officers who are involved in day to day contact with Aboriginal people.

89 The recital of historical inequity extended by the police service to Aboriginal people does not, however, provide a basis for an implication that the conduct of the officers concerned in this case was motivated by discrimination toward Aboriginal people. It would be quite unfair to attribute to the individual officers concerned in this case discriminatory motivation based upon historical treatment of Aborigines. There is nothing in the evidence which would cause us not to accept the express denials by the officers concerned that their actions were in any way influenced by considerations of the applicants' age, race or gender.

90 For the foregoing reasons, we are of the view that the applicants have not established their claims, and the application should be dismissed.

I certify that this and the preceding [90] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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