The application for summary dismissal
31 The application for summary dismissal filed by the respondent on 6 September 2013 has two principal elements. First, the respondent argued that some of the matters raised by the 2011 proceedings have been dealt with to finality by the 2012 judgment and the appeal judgment. Those matters concern events on 21 March 2009. Secondly, so far as other events in the period between 2006 and 2011 are concerned, the respondent argues that findings of law, and of statutory construction, made in the 2012 judgment which were approved on appeal have the necessary consequence that no element of the 2011 proceedings can be successfully prosecuted.
32 Accordingly, the respondent contends that no matter raised in the 2011 proceedings has any reasonable prospects of success.
33 To put those arguments into context it is necessary to briefly describe the character of the allegations made in the 2011 proceedings and how allegations of that kind were dealt with in the 2012 judgment and the appeal judgment.
34 The 2011 proceedings allege that Mr Robinson (and Ms El Masri) were subject to "discrimination". The originating application filed on 14 December 2011 identified the legislative foundation for the proceedings by saying that "the discrimination complained of is unlawful under the Disability Discrimination Act 1992".
35 In its statement of reasons for terminating the complaint to that body given by the AHRC, it stated that the complaint (which represents the body of factual allegations relied on in the present proceedings) was one which alleged: "disability discrimination in the provision of goods, services and facilities under the Disability Discrimination Act 1992 (Cth)". In particular, the complaint was such as to allege disability discrimination in the provision of a "service" within the meaning of ss 4 and 24 of the Disability Discrimination Act 1992 (Cth) ("the DD Act").
36 The 2011 proceedings concern 43 incidents arising from interactions between members of the New South Wales Police and one or other of the applicants. In one way or another the incidents are connected with Mr Robinson's criminal history, which is complicated by Mr Robinson's mental state which the applicants attribute to injuries he suffered in a motor bike accident on 29 July 2006.
37 In fact, one complaint made by the applicants pre-dates this accident. This complaint stems from entries made on Mr Robinson's COPS (Computerised Operational Policing System) profile by two detectives on 18 March 2006 which include the following:
"Approach with caution extremely hostile and violent when informed he is under arrest which appears to be a catalyst for self-induced panic attack in order to avoid arrest.
"May be suffering Mental Illness - Delusions of being an ASIO operative and being wanted by the CIA".
"He hyperventilated and faked a seizure".
"Told one Police Officer he worked for ASIO".
38 The 2010 proceedings also alleged unlawful discrimination by members of the New South Wales Police. The 2010 proceedings focussed on events on 21 March 2009 when Mr Robinson was taken by ambulance to Liverpool Hospital after two detectives (one of whom was involved in the 18 March 2006 COPS entries) went to an address and arrested Mr Robinson on fraud charges. Events on that day also concerned statements made to Ms El Masri.
39 The assessment made by Yates J of those matters in the 2012 judgment (so far as they concerned claims of unlawful discrimination against Mr Robinson) included the following conclusions:
205 … it is not disputed that Mr Robinson was under investigation for serious offences that involved deception. He had been charged with one such offence on 21 March 2009. The antecedents statement in the Facts Sheet provided to Senior Constable Taseski included information that Mr Robinson had a lengthy criminal history and that further investigations were being carried out in respect of other alleged offences for which, it seemed, Mr Robinson would be charged. However, those matters could not be dealt with at the time because of Mr Robinson's "mental presentation". Strict bail conditions were sought by DSC Mangan so as to ensure that Mr Robinson's "whereabouts are known by police at all times". It does not follow from this request that, as a matter of fact, "the strictest of conditions" were imposed and that, in consequence, Mr Robinson was treated less favourably than a person without his disability would have been treated in the same or not materially different circumstances. Indeed, there is simply no evidence that would allow me to conclude that, absent the belief that Mr Robinson had feigned a mental illness (including a seizure), different bail conditions would have been sought or imposed in the circumstances.
206 For these reasons, even if services were involved in "dealing with" Mr Robinson's bail application, I am not satisfied that the applicants have established that s 24 was contravened by reason of Mr Robinson being treated less favourably in relation to the terms or conditions on which those services were supplied or the manner in which those services were supplied.
207 Finally, the respondent submits that, even if Mr Robinson was treated less favourably, that treatment was not because of his disability. I accept that submission. Here, once again, the applicants' focus has been on the influence of DSC Mangan's statements in the Facts Sheet about Mr Robinson feigning a mental illness. But these statements were made by DSC Mangan because he believed that Mr Robinson had feigned a mental illness (including the seizure). These statements were not made because Mr Robinson had a disability but because DSC Mangan believed that Mr Robinson had feigned a disability: Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 at [68]-[70] and [76].
(Emphasis in original.)
40 Yates J concluded (at [136]-[137]) that no separate case was available to Ms El Masri as she was not a person with a relevant disability.
41 However, apart from the particular findings concerning 21 March 2009, to the effect that no case of unlawful discrimination was made out in respect of each applicant, the 2010 proceedings were attended by a fatal legal defect.
42 At the relevant time, s 24(1) of the DD Act provided:
24 Goods, services and facilities
(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 disability or a disability of any of that other person's associates:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b) in the terms or conditions on which the first-mentioned 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 first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
43 It was accepted by Yates J for the purpose of the 2010 proceedings that Mr Robinson suffered a mental illness which was a "disability", and that Ms El Masri was his "associate".
44 It is convenient to mention here that from 5 August 2009, s 24(1) omitted any reference to disabilities of associates and provided instead:
24 Goods, services and facilities
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 disability:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b) in the terms or conditions on which the first-mentioned 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 first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
45 That particular change has no significance for the present proceedings. (Section 7, in any event, applied the provisions of the Act to discrimination against associates from that time).
46 Section 4 of the DD Act provided:
4 Interpretation
…
services includes:
(a) services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance; or
(b) services relating to entertainment, recreation or refreshment; or
(c) services relating to transport or travel; or
(d) services relating to telecommunications; or
(e) services of the kind provided by the members of any profession or trade; or
(f) services of the kind provided by a government, a government authority or a local government body.
47 Yates J found (in reasoning equally applicable to the present case) that members of a police force do not provide "services" within the meaning of s 24(1) of the DD Act when they arrest a person, or keep them in custody or do the other things which were said to have involved discrimination against Mr Robinson on 21 March 2009. A survey of cases which Yates J undertook from [146] to [170] in the 2012 judgment made it apparent that, in s 24(1), the notion of services does not have a meaning so wide that it includes all interactions. Yates J concluded (at [181]):
181 … the various interactions between Mr Robinson, Ms El Masri and members of the NSW Police Force on 21 March 2009 did not involve "services" for the purposes of s 24 of the Act. As the applicants' claims of unlawful discrimination are based solely on unlawful discrimination under s 24 of the Act, it follows that their claims must be dismissed.
48 In the appeal judgment, those conclusions were all upheld. It should be noted also that some aspects of the analysis which are material for present purposes were, in any event, not in issue. Thus, the Full Court said (at [145]):
145 However, it is to be noted that there was no oral argument specifically directed to the two key legal issues, namely, the question of whether or not there was a specific provision of 'services' for the purposes of s 24 of the DDA and, secondly, whether or not there was, in any event, 'discrimination' as defined under the legislation. On these central issues we have considered the reasons of the primary judge and find no reason to doubt their correctness.
49 The Full Court also said (at [165]-[167]):
165 The next point advanced on appeal was the complaint by the appellants before the primary judge was not confined to the concept of provision of a service. A repeated theme in the general complaints of the appellants is that the primary judge narrowed the scope of the case too much. In fact, his Honour confined the scope of the case to the scope of the complaint before the Commission or to matters substantially similar. This is entirely in accordance with the provisions of the AHRC Act and the DDA. The difficulty for the appellants is that discrimination is not an open ended complaint at large but has to be linked to certain circumstances. In this instance, the circumstances were said to be those of the provision of a service within the meaning discussed in s 24 of the DDA.
166 There is no doubt that the primary judge considered this question in detail, fairly and entirely accurately. For a complaint of discrimination to succeed, the complainant must identify that the complaint falls within one of the relevant areas of direct and indirect discrimination in certain fields of public life. The area identified by the appellants had been with respect to 'provision of services'.
167 The appellants have argued that the primary judge should have considered a broader ranging form of discrimination than that on which they expressed or relied. That was not a course open to his Honour in the way the complaint before him was conducted. As is made clear on the appeal by senior counsel for the Police Commissioner, the DDA is not a law which looks at discrimination at large. The DDA is specific to the circumstances which fall for consideration. Moreover, s 42PO(3) [sic] of the AHRC Act provides that a Federal Court action arising out of a terminated complaint to the Commission must be the same unlawful discrimination (or the same in substance) as that which was the subject of the terminated complaint. On these central issues we have considered the reasons of the primary judge and find no reason to doubt their correctness.
50 Those observations have significance for the present interlocutory applications also. Although Ms El Masri made it clear that the applicants wished as wide a legal foundation as possible for the 2011 proceedings, those proceedings are also confined by the nature of the complaint made to the AHRC. As the distillation of the allegations provided by the respondent in its written submissions filed on 6 September 2013 makes clear, the 2011 proceedings are, like the 2010 proceedings, ones which depend upon the fundamental premise that members of the NSW Police Force unlawfully discriminated against Mr Robinson and Ms El Masri in the provision of services to them.
51 With that background, I will address the specific legal arguments advanced by the respondent, each of which I attempted to keep at the forefront of the applicants' attention in the hearing on 17 March 2014.