Robinson v Commissioner of Police, NSW Police Force

Federal Court of Australia|2012-07-20|Before: Yates J

Introduction 139 At the hearing the respondent submitted that, although the applicants had identified various aspects of conduct that were matters of complaint by them, they had not identified the services that were the subject of the alleged discrimination. They submitted that the services in issue must be identified precisely and concretely in relation to the facts of the case and the issues that arise for determination. 140 In the context of alleged discrimination under s 66K(1) of the Equal Opportunity Act 1984 (WA) - a provision which is not materially different to s 24 of the Act - Brennan CJ and McHugh J said in IW v The City of Perth (1997) 191 CLR 1 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. … 141 Earlier, in Waters v Public Transport Corporation (1991) 173 CLR 349, which was a case of alleged discrimination under the similarly worded provision of s 29(1) of the Equal Opportunity Act 1984 (Vic), McHugh J said at 404: … 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. … 142 When the applicants were afforded the opportunity to provide written submissions in reply, the only services they identified for the purpose of considering the application of s 24 of the Act were "dealing with" Mr Robinson's application for bail. They went on to contend, however, that any failure by them to refer in their written submissions to the particular claims that had been advanced should not be understood as a withdrawal of those claims. Thus it would appear that the applicants wish to maintain the complaints they have made in the amended points of claim but have been unable, save in one respect, to identify the framework by which those complaints can be said to give rise to unlawful discrimination under s 24 of the Act. I should record that the applicants did not seek to identify any relevant services in the course of their oral submissions. 143 As I have noted, the respondent contends that the position adopted in the applicants' written submissions represents a very significant shift from the way in which they presented their case at the hearing. The respondent submits that, prior to the written submissions, the applicants' claim had been directed to police conduct concerning Mr Robinson's arrest, the decision to convey him to the hospital and DSC Mangan's preparation of the Facts Sheet. The respondent complains that this departure by the applicants has denied him the opportunity of adducing evidence on the question of whether "dealing with" Mr Robinson's bail application involved "services". 144 While I accept that there has been a shift in focus in the applicants' case, I am satisfied that the present focus finds a basis in the amended points of claim. Although the amended points of claim were filed shortly before the commencement of the hearing, the respondent was content to proceed on the basis of them. The only issues that were raised at the hearing in that regard were whether the applicants wished to call, in their own case, additional evidence from police witnesses (whose attendance the respondent offered to secure) and whether, in any event, the Court required such witnesses to be called. The applicants chose not to call any police witnesses in their own case. The respondent indicated that he did not propose to call evidence from police witnesses other than DSC Mangan, unless required to do so by the Court. The Court had no requirement in that regard. 145 I am left to consider, therefore, whether, in respect of the various and separate interactions between members of the NSW Police Force and each of the applicants respectively, on 21 March 2009, services were being supplied, or there was a refusal to supply services, for the purposes of s 24 of the Act.

General observations on the meaning of services 146 Relevantly for present purposes, s 24 of the Act proceeds on the basis of discrimination occurring in the course of providing services. A threshold question arises as to what is meant by "services" in this particular statutory context. 147 Section 4 of the Act defines "services" as follows: 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. 148 It is apparent that the s 4 definition does not seek to fully characterise the meaning of "services". The respondent accepts, however, that "services" is a word of generality and that it should be construed in a way that gives effect to the objects of the Act. The respondent accepts that "services" in s 24 of the Act is apt to cover "any helpful activity". The respondent also accepts that, for the purposes of paragraph (f) of the definition of "services" in s 4 of the Act, the NSW Police Force is a government authority: see in that regard Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745 at [41]-[43]. 149 Perhaps the most extensive discussion of the meaning of "services" in the context of legislation of the present kind is the High Court's decision in IW. The case concerned whether a refusal by the City of Perth to give planning approval in respect of certain premises involved a refusal to provide services. 150 In that case Dawson and Gaudron JJ, after observing that the word "services" should be given its ordinary and broad meaning, said (at 23): The word "services", in its ordinary meaning, is apt to include the administration and enforcement by the City of Perth of the Planning Scheme. That being so, the Tribunal was correct in holding that "in administering a town planning scheme …, regulating the use of land …, securing provision for traffic …, and generally implementing or enforcing measures directed to the amenity of the area, … the City of Perth [was] providing a service to residents". 151 Later (at 24) their Honours said: Within the context of s 66K(1), a person who provides a service by exercising a discretion to grant or withhold approval may discriminate against a person in the exercise of that discretion by refusing to exercise it at all (par (a)), by imposing terms and conditions (par (b)), or by exercising it in a particular manner (par (c)). Subject to the question whether the appellant is an aggrieved person, it may be that a case can be made that, in refusing PLWA's application, the City of Perth exercised its discretion in a discriminatory manner and, thus, infringed s 66K(1)(c) of the Act. … 152 In the same case, Toohey J (at 27-28) said: Given the breadth of the term "services", it might be readily concluded that a refusal to give planning approval to the application by PLWA was a refusal to provide a service. The contrary argument however is that the service provided by the Council is not the giving of planning approval but the consideration of an application for such approval. It is not incumbent on the Council to give its approval; it may refuse its approval, or grant its approval unconditionally or subject to conditions. The service it provided was to consider the application in question and this it did. This approach to the issue is in my view too narrow. 153 After noting, again, that the Council may grant or refuse an application to rezone, his Honour (at 28) posed and answered the following question: … But how, it is asked, can a refusal of an application be a refusal to provide a service? The answer to this may be found in s 66K(1)(c) of the Act. If the service is seen as the consideration of the application and its disposition and if it appears that the Council refused the application on the ground of impairment, why is that not discrimination "in the manner in which the first-mentioned person provides the other person with those … services"? Consideration of an application is of itself hardly a service; it is the disposition of the application which either provides or refuses the service. In the manner of that refusal there may be discrimination. 154 At 44 Gummow J said: The question arises whether the circumstance that, in dealing with applications for approval, the Council, as responsible authority, exercises its statutory functions and duties under the town planning law has the consequence that the Council is not also engaged in the provision of services to applicants within the meaning of the anti-discrimination legislation. 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. 155 In his reasons, Kirby J noted that many cases in Australia and overseas had expanded the notion of "services" to include a variety of governmental services, including the making of decisions under or pursuant to legislation: see at 74. His Honour continued (at 74-75): … The provision of permission to change a planning use is capable of being a "service". It can undoubtedly be helpful and valuable to the recipients. A refusal to provide it, on a ground of unlawful discrimination, is plainly the kind of conduct which the Act was designed to discourage and redress. Just as governmental services have changed, by expansion and, in recent times, contraction, so it is undesirable to impose a narrow meaning on the word "services" used in this context. Unless the City's permission were granted, the consequent services and facilities of the City, the subject of town planning, would not be provided to the applicant. Such a result would flow from the refusal to make the service of planning permission available. If the refusal were "on the ground of" the applicant's impairment, that would be contrary to the Act. 156 However, in the same case, Brennan CJ and McHugh J took a narrower view of the scope and meaning of the word "services" as used in its particular statutory context. Their Honours said (at 15): Thus, when a council is called on as a deliberative body to exercise a statutory power or to execute a statutory duty, it may be acting directly as an arm of government rather than as a provider of services and its actions will be outside the scope of the Act. This is particularly so when councillors are acting as representatives of their constituencies in making by-laws or resolutions that will have the force of law throughout the municipality or borough. Such "legislative" acts have to be contrasted with the acts involved in making operational decisions as to whether a particular service should be provided to certain individuals or to a section of the community. Similarly, when a council is required to act in a quasi-judicial role in exercising a statutory power or duty, it may be inappropriate to characterise the process as the provision of a service for the purpose of the Act even in cases where the product of the process is the provision of a benefit to an individual. This is likely to be the case where the council, before making a decision, is required to consider matters that affect the public interest. In such a case, the Council may be providing a "service" in a very general sense because its ratepayers ultimately benefit from the process. But that may not be sufficient to bring the process within the scope of Pt IVA of the Act. 157 Their Honours rejected the contention that the City of Perth provided "any service of giving planning approval" or "any service of refusing approvals": see at 16-17. Their Honours found that the Council, acting on behalf of the City, merely had a duty to consider applications and a discretionary power to refuse or approve those applications unconditionally or on conditions. Their Honours thus held (at 17): … the granting or refusal of an application was the end product of a deliberative process. Approval of an application no doubt conferred a benefit on an applicant. But it misdescribes the process to say that the Council provided a service of giving approvals. Certainly the process was not an "exercise of a discretion to give planning approval to allow the use of premises for a particular purpose in a specific locality" (emphasis added) as the Tribunal held. … 158 In Rainsford v Victoria (2005) 144 FCR 279, when dealing with a case of alleged discrimination arising under s 24 of the Act, Kenny J (with whom Hill and Finn JJ agreed) said (at [54]): Section 4(1) provides an inclusive definition of services and that, amongst other things, unless the contrary intention appears, "services" includes "services of the kind provided by a government, a government authority or a local government body" (para (f)). As his Honour recognised, on account of its remedial character, [the Act] is to be generously construed and the word "services" includes all matters which ordinarily fall within that notion: see IW v City of Perth at 11-12 per Brennan CJ and McHugh J; 22-23 per Dawson and Gaudron JJ; 27 per Toohey J; 39, 41-42 per Gummow J; and 69-70 per Kirby J. The identification of the "service" at issue in any case is a question of fact for the trier of fact: see Waters at 361 per Mason CJ and Gaudron J, with whom Deane J relevantly agreed (382); 394 per Dawson and Toohey JJ; and 404-405 per McHugh J; and also Catholic Education Office at [12]-[13] per Tamberlin J and [102] per Sackville and Stone JJ. The question of whether an activity is a service for the purposes of s 24 of [the Act] is essentially a matter of characterisation. In discharging statutory duties and functions and in exercising statutory powers in the public interest, a body may also be engaged in the provision of services to particular individuals: see IW v City of Perth at 44 per Gummow J; also 12-13 per Brennan CJ and McHugh J; 24 per Dawson and Gaudron JJ; 29 per Toohey J; and 72 per Kirby J. … 159 Subsequently, in Rainsford v Victoria (2007) 167 FCR 1 Sundberg J (at [72]) stressed that not all government functions are services: The judgments in IW 191 CLR 1 are clearly dependent on the particular fact situation of that case, but some general propositions can be identified. First, not all government functions are services, although some undoubtedly are. Second, as the difference between Dawson, Gaudron and Gummow JJ on the one hand, and Toohey and Kirby JJ on the other hand demonstrates, the way in which the service is identified is critical. It is a question of fact determined by the situation of the particular case. 160 In that case his Honour accepted the usefulness of asking whether a particular act (claimed to be "services") involves "helpful or beneficial activity" to the relevant class of persons to which the person alleging discrimination belongs: see at [73]. His Honour held, however, that neither: (a) the transportation of prisoners between prisons and between prison and court; nor (b) the accommodation of a prisoner in cells within the prison system, is a service for the purposes of s 24 of the Act. 161 In the case of transportation, his Honour reasoned (at [77]) that the prison system could not function without prison transport and that it was an artificial use of the word "service" to apply it to "a fundamental integer of a system over which those affected have no or almost no control". His Honour also reasoned (at [78]) that prisoner accommodation was an inherent part of incarceration; prisoners must be housed somewhere within the prison system. Having a cell was not a helpful or beneficial activity so far as the prisoner is concerned. 162 A number of other cases have held that the performance of particular public duties does not constitute the provision of services. In R v Immigration Appeal Tribunal, Ex parte Kassam [1980] 1 WLR 1037 it was held that, in giving leave to immigrants to enter or remain in the United Kingdom, the Secretary of State was not providing facilities (a term there accepted as akin to services) to a section of the public under the Immigration Act 1971 (UK) or the rules made thereunder. Similarly, in R v Entry Clearance Officer, Bombay, Ex parte Amin [1983] 2 AC 818 it was held that, in granting immigration vouchers, an entry clearance officer was not providing a service for would-be immigrants, but only performing duties in controlling them. In Secretary of the Department of Justice and Industrial Relations v Anti-Discrimination Commissioner (2003) 11 Tas R 324, it was held that the exercise of a statutory prosecutorial discretion against laying a complaint or filing an indictment was not done in relation to services but merely in the performance of a statutory duty.

Police services 163 The NSW Police Force is established by the Police Act 1990 (NSW) (the Police Act): see s 4. The Police Act provides that the NSW Police Force has a number of functions. One of those functions is to provide police services for New South Wales. 164 Section 6(3) of the Police Act defines those services as follows: In this section: "police services" includes: (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, and (c) the provision of essential services in emergencies, and (d) any other service prescribed by the regulations. 165 That definition does not greatly advance matters in the present case. It does go some way, however, to recognising that it is apt to refer to the NSW Police Force as providing services in appropriate circumstances: see, in that connection, the observations of Basten JA in Commissioner of Police (NSW) v Mohamed (2009) 262 ALR 519 at [30]-[32]. 166 Some consideration has been given in the cases to the characterisation of police functions with a view to determining whether, in particular circumstances, the provision or refusal of services is involved. In this connection, the cases recognise that a dual characterisation might be appropriate. For example, in Farah v Commissioner of Police of the Metropolis [1998] QB 65 a distinction was drawn between pursuing, arresting or charging alleged criminals, which was not the provision of a service to the alleged criminals, and affording protection to members of public against violence and other criminal acts, which was regarded as the provision of a service to members of the public sufficient to attract the operation of s 20(1) of the Race Relations Act 1976 (UK): see at 78 and 83; see also Mohamed at [39]-[45] and [80]-[86]; Patrick v State of South Australia (No 2) [2009] SAEOT 1 at [34]. 167 This underscores the need to focus on the position of the person alleging discrimination to identify whether services are being provided or refused to that person and to others in the same circumstances or in circumstances that are not materially different. It does not follow from the fact that the public or a section of the public benefits from an activity that, in a given case of alleged discrimination, a service is relevantly involved: see IW at 16. 168 In my view it could not be said in the present case that DSC Mangan and DC Johnson were providing services to Mr Robinson for the purposes of s 24 of the Act when pursuing and arresting him on 21 March 2009. Similarly, DC Johnson was not providing services to Mr Robinson when maintaining custody over him in the ambulance and at the hospital. Thus, in my view, none of the complaints made by the applicants in relation to Mr Robinson's treatment on the way to, and while at, Liverpool Hospital could fall within the purview of s 24 of the Act, even if, contrary to my findings, those complaints, in the case of DC Johnson, could be made out as a matter of fact. 169 Similarly, I am not persuaded that either DSC Mangan or DC Johnson was providing services to Ms El Masri on 21 March 2009 at the scene of the arrest. Furthermore, I am not satisfied that, thereafter, DSC Mangan was providing services to Ms El Masri while waiting for other police officers to arrive to execute the search warrant at her house. It follows that, even if I were satisfied that s 12(8) of the Act was capable of extending s 24 to Ms El Masri's claim as an "associate", s 24 was not engaged. 170 As the applicants' only fully articulated claim regarding unlawful discrimination in relation to the provision of "services" under s 24 of the Act concerns "dealing with" Mr Robinson's bail application, I now turn to give that claim separate consideration.

Dealing with Mr Robinson's bail application 171 In their written submissions the applicants said that "dealing with" Mr Robinson's bail application meant "considering and disposing of" that application or "considering whether to exercise the discretion to grant or refuse bail". In this connection the applicants referred to a number of observations made in the various judgments in IW which I have noted above. I note, in particular, the observations made by Gummow J at 44 where his Honour referred to the Council, as the responsible authority, "dealing with" applications for approval when exercising its statutory functions and duties under town planning laws. 172 Mr Robinson's bail application was "dealt with" under the provisions of the Bail Act 1978 (NSW) (the Bail Act). 173 Section 7(1) of the Bail Act provides: When: (a) bail is granted to an accused person in respect of an offence, (b) the person enters into the bail undertaking, and (c) if a bail condition or bail conditions are imposed, it or they are entered into, the person is, subject to this Act, entitled to be released (if in custody) and to remain at liberty in respect of the offence, until the person is required to appear before a court in accordance with the person's undertaking. 174 The Bail Act confers authority on certain police officers to grant bail: s 17. Section 18(1) provides: Where a person is charged by a police officer with an offence and the person is in custody, the proper officer shall, as soon as reasonably practicable: (a) give the accused person such information in writing respecting the person's entitlement to or eligibility for bail as is prescribed by the regulations and sign an acknowledgment in the prescribed form that he or she has given the accused person the information, and (b) if the proper officer is: (i) authorised to grant bail--determine whether or not bail should be granted to the person or bring the person or cause the person to be brought before a court, or (ii) not authorised to grant bail--bring the person before a court or an authorised officer. 175 A person is not to be released on bail unless that person gives a bail undertaking in accordance with s 34 of the Bail Act. Otherwise, bail may be granted unconditionally or subject to conditions imposed by instrument in writing: s 36(1). There are, however, restrictions on imposing bail conditions. 176 In this connection, s 37 provides: (1) Bail shall be granted unconditionally unless the authorised officer or court is of the opinion that one or more conditions should be imposed for the purpose of: (a) promoting effective law enforcement, or (b) the protection and welfare of any specially affected person, or (c) the protection and welfare of the community, or (d) reducing the likelihood of future offences being committed by promoting the treatment or rehabilitation of an accused person. (2) Conditions shall not be imposed that are any more onerous for the accused person than appear to the authorised officer or court to be required: (a) by the nature of the offence, or (b) for the protection and welfare of any specially affected person, or (c) by the circumstances of the accused person. (2A) Before imposing a bail condition on an accused person who has an intellectual disability, the authorised officer or court is to be satisfied that the bail condition is appropriate having regard (as far as can reasonably be ascertained) to the capacity of the accused person to understand or comply with the bail condition. (3) A condition referred to in section 36 (2) (b)-(h) shall not be imposed unless the authorised officer or court is of the opinion that any condition or combination of conditions referred to in any preceding paragraph or paragraphs of section 36 (2) is not likely to secure the purpose referred to in subsection (1) of this section. (4) Notwithstanding subsection (3), the authorised officer or court may, at the request of the accused person, grant bail subject to any conditions referred to in section 36 (2) appropriate to secure the purpose referred to in subsection (1) of this section. (5) In this section: intellectual disability means a significantly below average intellectual functioning (existing concurrently with two or more deficits in adaptive behaviour) that results in the person requiring supervision or social rehabilitation in connection with daily life activities. specially affected person means: (a) any person against whom it is alleged that the offence concerned was committed, and (b) the close relatives of any such person, and (c) any other person whose needs, in the opinion of the authorised officer or court, warrant special consideration because of the circumstances of the case. 177 The conditions on which bail may be granted are dealt with in, for example, ss 36(2), 36(A) and 36(B) of the Bail Act. As I have noted, Mr Robinson was granted bail on conditions. 178 I have come to the conclusion that "dealing with" Mr Robinson's bail application did not involve the provision of "services" within the meaning of s 24 of the Act. I accept that the word "services" is a word of generality and should be given a broad meaning consistent with the objects of the Act. I also accept that the word is apt to cover activities that are helpful and beneficial. No doubt the granting of bail to Mr Robinson was, in a sense, helpful and beneficial to him, as it might be to all accused persons, compared with the alternative of remaining in custody. But in no true sense can an authorised officer acting pursuant to the duties imposed by s 18 of the Bail Act, and its related provisions, be said to be providing services to accused persons, such as Mr Robinson. 179 The applicants submit that the facts of the present case are "not dissimilar" to the facts in IW because what is involved is an application to a government body for the exercise of power to grant consent to a course of action that would confer a benefit on an applicant. In my view the facts and circumstances of IW are far removed from the facts and circumstances of the present case. 180 When granting police bail an authorised officer is granting authorisation to an accused person to be at liberty instead of remaining in custody. However, that liberty is not unregulated. It is liberty under the Bail Act: see the definition of "bail" in s 4(1). The granting of bail is not so much the provision by a government authority of services to accused persons, but the exercise of government authority, in the operation of the criminal justice system, to control such persons and to regulate their liberty. It is a modification of the state of liberty that is enjoyed by others. Aspects of activity within the exercise of that control, such as the deliberative process of an authorised officer determining whether to grant bail and, if so, on what conditions, and the provision of information to be used for the purposes of that deliberative process, do not take on any different character so as to become, separately, services provided to accused persons. All of these activities are inseparable from the mechanism of control that is exercised over accused persons, whose liberty is only that which the Bail Act itself provides for. As Buxton LJ observed in Gichura v Home Office [2008] ICR 1287 at [17], "…it would be a rather strange application of the concept of providing a service to say that one is providing a service to somebody when one is in fact restricting them from doing what they want to do". See also Rainsford 167 FCR 1 at [78].

Conclusion on services 181 For these reasons, 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. 182 However, given the present focus of the applicants' case, and given that a different view might be taken about the scope of the word "services" as used in s 24, I will assume, contrary to my own finding, that "dealing with" Mr Robinson's bail application on 21 March 2009 involved the provision of "services" within the purview of the section, and proceed to make findings as to whether there was unlawful discrimination.

Introduction 183 The applicants submit that the unlawful discrimination involved in "dealing with" Mr Robinson's bail application was reflected either in the terms or conditions on which "services" were provided or in the manner in which "services" were provided: see ss 24(1)(b) and 24(1)(c) of the Act. 184 By dint of s 5(1) of the Act, a person discriminates against another person if that person treats or proposes to treat the person with the disability less favourably than someone without that disability - in the same circumstances or in circumstances that are not materially different - and the reason for the less favourable treatment is the person's disability. Section 6 of the Act introduces the notion of indirect disability discrimination. The applicants do not invoke indirect disability discrimination in relation to "dealing with" Mr Robinson's bail application.

The applicants' case on less favourable treatment 185 The case advanced by the applicants in their written submissions of "less favourable treatment" is as follows. 186 First, they submit that Mr Robinson's disability is that he suffered from epilepsy. They submit that his disability was both this condition (epilepsy) and the seizures or epileptic fits he suffered as a result of this condition. Their case is that, at the time of his arrest on 21 March 2009, Mr Robinson suffered an epileptic fit. 187 Secondly, the applicants submit that, when applying s 5(1) of the Act in the present case, I should have regard to a hypothetical comparator. On their case, the hypothetical comparator should be taken to be a person who, in the same circumstances as Mr Robinson (or in circumstances not materially different), had not suffered an epileptic fit at the time of the arrest on 21 March 2009 and who had not feigned a seizure. 188 Thirdly, the applicants submit that, had he not suffered an epileptic fit, Mr Robinson would simply have been conveyed from the scene of his arrest to Liverpool Police Station. DSC Mangan would not have been suspicious that Mr Robinson had attempted to deceive the police by feigning a seizure. In these circumstances, DSC Mangan would not have recorded in the antecedents section of the Facts Sheet that (a) Mr Robinson "appears to suffer from a mental illness but Police strongly believe that this is a feigned illness in an attempt to utilise the benefits of the Mental Health Act in the judicial process", or that (b) Mr Robinson has shown that "he is capable of incredible deception". Similarly, DSC Mangan would not have requested that "the strictest of conditions be imposed" on any bail granted to Mr Robinson. 189 Fourthly, the applicants submit that, had DSC Mangan not made these statements, Senior Constable Taseski, as the relevant custody manager, would not have made the statement that Mr Robinson had engaged in an "act" to "utilise the system". 190 Fifthly, the applicants submit that the making, recording and communicating of these statements by DSC Mangan and Senior Constable Taseski satisfies the requirement of less favourable treatment of Mr Robinson because of his disability. 191 Sixthly, they submit that, but for these statements, Senior Constable Taseski would have granted unconditional bail to Mr Robinson, which he was obliged to do unless the circumstances required conditions to be imposed to promote specified purposes. They submit that the imposition of "the strictest" bail conditions was also less favourable treatment of Mr Robinson because of his disability.

Consideration 192 The respondent says that all these submissions are contentious. 193 First, the respondent complains that at all times prior to filing their written submissions, the applicants' case was that Mr Robinson's disability was that he suffered a mental illness, not that he suffered from epilepsy. The respondent had accepted at an early stage of the proceeding that, as at 21 March 2009, Mr Robinson suffered from a mental illness, but submitted at the hearing that the medical evidence on which the applicants relied did not provide a clear picture of the types of symptoms that Mr Robinson may have been exhibiting at the time of his arrest, including whether he had a propensity to suffer seizures. The respondent's acceptance that Mr Robinson suffered a mental illness did not extend to the fact that he suffered from epilepsy. 194 There is, in my view, considerable force in the respondent's complaint. The focus of the applicants' case was that Mr Robinson suffered a brain injury that could have been frontal lobe damage, and that various psychiatric diagnoses had been made, including Bipolar Disorder and Schizoaffective Disorder, and an Acquired Brain Injury. The evidence was that Mr Robinson was treated with Seroquel (as an antipsychotic medication) and Epilim (as a mood stabiliser). Having said this, there is some evidence that Mr Robinson was treated for epilepsy using Epilim in 2009 and that, in 2008, he suffered "occasional epilepsy". The medical reports do not provide a clear picture. 195 Importantly for present purposes, no diagnosis was made at Liverpool Hospital on 21 March 2009 that Mr Robinson had suffered an epileptic fit earlier that day. The hospital medical records do raise the possibility that Mr Robinson might suffer from a "seizure disorder", but that is far from diagnosing that he had actually suffered an epileptic fit. Moreover, the applicants did not seek to adduce medical evidence at the hearing that provided an expert opinion that Mr Robinson had suffered an epileptic fit on 21 March 2009. On the balance of the evidence before me, I am not prepared to find that, at the time of his arrest on 21 March 2009, Mr Robinson suffered an epileptic fit. 196 That, however, is not the end of the matter. The Custody Management Record for Mr Robinson at Liverpool Police Station on 21 March 2009 does record that he had been treated for epilepsy in the past. This information must have been provided by Mr Robinson to Senior Constable Tomasic who made this record. At the time that he was "dealing with" Mr Robinson's bail application, Senior Constable Taseski must have been aware that Mr Robinson claimed to have been treated for epilepsy. 197 Secondly, the respondent disputes that the hypothetical comparator is a person who did not suffer an epileptic fit and had not feigned a seizure at the time of the arrest on 21 March 2009. The respondent submits that, in the present case, the relevant inquiry is how members of the NSW Police Force would have treated a person without Mr Robinson's disability in circumstances of the kind that had occurred on 21 March 2009. The respondent submits that, in effect, the question is: how would members of the NSW Police Force have treated a person who did not have a disability but collapsed when an arrest was effected? The respondent submits that DSC Mangan was never asked this question but, based on the evidence that he considered Mr Robinson was feigning a seizure, it would appear that DSC Mangan would have called for an ambulance. 198 I am not persuaded that the respondent's approach is correct. For one thing, by focusing on whether or not an ambulance would have been called for a person without Mr Robinson's disability, the respondent's approach does not address the issue of discrimination that is raised in the applicants' written submissions. The applicants' written submissions are not directed to services provided or refused on the occasion of Mr Robinson's apparent seizure at the time of his arrest, but to the asserted services of "dealing with" Mr Robinson's bail application. The question is not whether DSC Mangan would have treated a person without Mr Robinson's disability differently at the time of the apparent seizure, but whether Senior Constable Taseski would have treated a person without Mr Robinson's disability differently when "dealing with" a bail application for the offences for which Mr Robinson was charged, and in the particular circumstances in which Mr Robinson found himself at that time. 199 Importantly, however, those circumstances include the fact that DSC Mangan believed that Mr Robinson had feigned a seizure at the time of his arrest. This belief was based on DSC Mangan's observations of Mr Robinson at that time and on the other information he had obtained from the COPS profile about Mr Robinson (under the name Ali Kassar). I accept that DSC Mangan's belief was carried forward into, and formed part of, Senior Constable Taseski's consideration of Mr Robinson's bail application. But, significantly, the existence of that belief cannot be ignored when considering, in the present case, the circumstances to which s 5 of the Act refers. 200 In Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92, Gummow, Hayne and Heydon JJ (at [222]-[224]) said: It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the "circumstances" to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant's contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical - circumstances in which no aspect of the disability intrudes. That is not what the Act requires. In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant's argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability. The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different. 201 The applicants dispute that Mr Robinson's seizure was feigned. Nevertheless, that was DSC Mangan's belief. That belief forms part of the circumstances that must be considered when the comparison required by s 5(1) of the Act is undertaken in the present case. It is one of the circumstances in which Mr Robinson found himself at the time. Mr Robinson's disability was that he suffered from a mental illness or, as the applicants would now contend, from epilepsy. His disability was not that he feigned seizures or that some members of the NSW Police Force believed that he feigned seizures, or, indeed, feigned a mental illness. 202 Thirdly, the respondent submits that there is no evidence that would properly support a finding that Mr Robinson was, in fact, treated less favourably than a person without his disability, in the same circumstances or in circumstances that were not materially different. In particular, the respondent submits that there is no evidence from which it could be concluded that the bail conditions imposed on Mr Robinson by Senior Constable Taseski were "the strictest of conditions". 203 Although I accept that DSC Mangan's belief was carried forward into and formed part of Senior Constable Taseski's consideration of Mr Robinson's bail application, I am not persuaded that DSC Mangan's statements in the Facts Sheet, or Senior Constable Taseski's summation and adoption of DSC Mangan's belief about Mr Robinson feigning a mental illness, as recorded in the Reasons for Bail Decision, constituted "less favourable treatment" of Mr Robinson compared to the way in which a person without Mr Robinson's disability (be it a mental illness or epilepsy) would have been treated in the same circumstances or in circumstances that were not materially different. DSC Mangan's statements, and Senior Constable Taseski's adoption and summation of DSC Mangan's belief, are simply perceptions that were considered by them, respectively, to be relevant to the determination of Mr Robinson's bail application. Those perceptions would have been the same regardless of whether Mr Robinson suffered a mental illness or suffered from epilepsy. 204 Furthermore, I am not satisfied that, absent DSC Mangan's statements, Senior Constable Taseski would have granted unconditional bail to Mr Robinson or that, in the event, Senior Constable Taseski imposed "the strictest of conditions". There is simply no evidence about either of these matters from which sound findings of fact could be made on the balance of probabilities. 205 In this connection, 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].

Other matters 208 As I have noted, the applicants made a number of allegations in the amended points of claim to the effect that members of the NSW Police Force failed to treat Mr Robinson as a vulnerable person in accordance with cl 24(1)(b), and failed to make arrangements for Ms El Masri to be present as a support person under cl 26(b)(i) of the LER. 209 Clause 24 of the LER provides: (1) A reference in this Division to a vulnerable person is a reference to a person who falls within one or more of the following categories: (a) children, (b) persons who have impaired intellectual functioning, (c) persons who have impaired physical functioning, (d) persons who are Aboriginal persons or Torres Strait Islanders, (e) persons who are of non-English speaking background, but does not include a person whom the custody manager reasonably believes is not a person falling within any of those categories. Note. If a person falls within more than one of the above categories, each provision of this Division relating to any category within which the person falls applies in relation to the person. (2) Pursuant to section 112(1) of the Act, the application of Part 9 of the Act to vulnerable persons is modified by this Division. 210 Clause 25 of the LER provides: The custody manager for a detained person who is a vulnerable person must, as far as practicable, assist the person in exercising the person's rights under Part 9 of the Act, including any right to make a telephone call to a legal practitioner, support person or other person. 211 Clause 26 of the LER provides: A person may be a support person for a detained person who is a vulnerable person for the purposes of this Division only if the first-mentioned person is aged 18 years or over and is: (a) in the case of a detained person who is a child: (i) a parent or guardian, or a person who has the lawful custody of the child, but not a parent of the child if the parent has neither guardianship nor custody of the child, or (ii) a person who is responsible for the care of the child, or (iii) an adult (other than a police officer) who has the consent of a person referred to in subparagraph (i) or (ii) to be the support person for the child, or (iv) if the child is aged 14 years or over--an adult (other than a police officer) who has the consent of the child to be the support person for the child, or (v) a legal practitioner of the child's own choosing, or (b) in the case of a detained person who is not a child: (i) a guardian or any other person who is responsible for the care of the detained person, or (ii) a relative, friend or any other person (other than a police officer) who has the consent of the detained person to be the support person for the detained person, or (iii) if none of the persons mentioned in subparagraph (i) or (ii) is applicable or readily available--a person (other than a police officer) who has expertise in dealing with vulnerable persons of the category, or a category, to which the detained person belongs. 212 Clause 27 of the LER provides: (1) A detained person who is a vulnerable person is entitled to have a support person present during any investigative procedure in which the detained person is to participate. (2) However, a detained person who is a vulnerable person solely as a result of being a person of non-English speaking background is entitled to have a support person present only if an interpreter is not required to be arranged under section 128(1) of the Act solely because of section 128(3)(a) of the Act. (3) Before any such investigative procedure starts, the custody manager for the detained person must inform the person that the person is entitled to the presence of a support person during the investigative procedure. (4) If the detained person wishes to have a support person present, the custody manager must, as soon as practicable: (a) give the detained person reasonable facilities to enable the person to arrange for a support person to be present, and (b) allow the detained person to do so in circumstances in which, so far as practicable, the communication will not be overheard. (5) The custody manager must defer for a reasonable period any such investigative procedure until a support person is present unless the detained person has expressly waived his or her right to have a support person present. (6) An investigative procedure is not required to be deferred under subclause (5) for more than 2 hours to allow a support person to arrive at the place of detention. (7) A custody manager is not required to comply with subclauses (3)-(5) if the custody manager believes on reasonable grounds that: (a) doing so is likely to result in an accomplice of the detained person avoiding arrest, or (b) doing so is likely to result in the concealment, fabrication, destruction or loss of evidence or the intimidation of a witness, or (c) doing so is likely to result in hindering the recovery of any person or property concerned in the offence under investigation, or (d) doing so is likely to result in bodily injury being caused to any other person, or (e) the safety of other persons requires that the investigative procedure be carried out as a matter of urgency. 213 The reference in cl 25 of the LER to "Part 9 of the Act" is to Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the LEA). The LEA consolidates and restates the law relating to police and other law enforcement officers' powers and responsibilities and sets out safeguards applicable to persons being investigated for offences. Part 9 of the LEA deals with investigations and questioning. Its objects include providing for the period of time that a person who is under arrest may be detained by a police officer to enable the investigation of the person's alleged involvement in the commission of an offence, and providing also for the rights of a person so detained. 214 The LEA provides that regulations may be made which give a modified application of Part 9 to certain persons, including persons who have a disability: see s 112. Clause 25 of the LER effects a modification by requiring the custody manager for a detained person to assist that person in exercising that person's rights under Part 9 of the LEA. 215 The applicants' focus on cll 24(1)(b) and 26(b)(i) of the LER does not articulate any breach, as such, of the LER. Those clauses only identify who is a vulnerable person and who may be a support person. Nevertheless, in their written submissions, reference was made to cl 27 of the LER when dealing with the question of the extended operation of s 24 of the Act as provided by s 12(8)(b). 216 It is to be noted that cl 27 of the LER is directed to the responsibilities of custody managers, as is cl 25. In the present case, the only custody managers relevant to Mr Robinson on 21 March 2009 were Senior Constables Tomasic and Taseski. Ms El Masri is recorded in the Custody Management Record of Liverpool Police Station as being the support person who was present for Mr Robinson on that day. There is no doubt about that fact. 217 The applicants have not identified in specific terms how or in what respect they say the LER was breached in respect of Mr Robinson on 21 March 2009, other than, possibly, in the allegation in the amended points of claim that DC Johnson failed to contact and allow Ms El Masri to be Mr Robinson's support person inside the ambulance and at Liverpool Hospital. However, there is no evidence that any investigative procedure was sought to be undertaken while Mr Robinson was conveyed to Liverpool Hospital or while he was at the hospital. He was taken there for medical treatment, not for investigation. In any event, DC Johnson was not a custody manager for the purposes of the LER. 218 Furthermore, DSC Mangan did not seek to interview Mr Robinson at Liverpool Police Station. Ms El Masri was consulted in relation to that decision and agreed with it. 219 I am unable to divine from the evidence before me how there was any breach of the LER. Moreover, as I have already noted, the applicants have not sought to articulate how, if at all, the unidentified breach or breaches of the LER might, separately, constitute unlawful discrimination in breach of s 24 of the Act.

conclusion and disposition 220 For these reasons the applicants' application must be dismissed. The question of remedies, including damages, does not arise. 221 At the conclusion of the hearing the respondent asked me to reserve the question of costs for later argument. I will reserve the question of costs and hear the parties on what directions might be necessary for the purpose of determining costs. I certify that the preceding two hundred and twenty-one (221) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

Disability Discrimination and Other Human Rights Legislation Amendment Act 2009(Cth)

Bail Act 1978(NSW)ss 4, 7, 17, 18, 34, 36, 36A, 36B, 37

Law Enforcement (Powers and Responsibilities) Regulation 2005(NSW)

Protected Estates Act 1983(NSW)

Equal Opportunity Act 1984(Vic)

Disability Discrimination Act 1992(Cth)ss 4, 5, 12, 24, 27

Police Act 1990(NSW)ss 4, 6

General comments 19 The evidence given at the hearing concerned the circumstances of Mr Robinson's arrest on 21 March 2009, his conveyance to Liverpool Hospital, and his subsequent conveyance to Liverpool Police Station where he was charged and bailed. The applicants' evidence in chief did not give a complete account of those events. In order to more fully understand the course of events on 21 March 2009, it is convenient to commence with a consideration of the respondent's evidence given through DSC Mangan. 20 I should also record that the applicants' evidence in chief was given subject to a number of rulings made on 23 September 2011, in advance of the hearing: Robinson v NSW Police Service [2011] FCA 1081. This was because the respondent had raised a number of objections to the affidavits on which the applicants proposed to rely as their evidence in chief, including an affidavit sworn by Mr Robinson on 2 June 2011. Apart from matters of form, those affidavits, and Mr Robinson's affidavit in particular, purported to deal with facts, matters and circumstances that, on their face, travelled beyond the subject matter of the terminated complaint. Those rulings rejected a number of the affidavits, or parts of them, on the ground of relevance. The rulings also provided that some paragraphs of some affidavits would be admitted subject to limitations. 21 In the account of DSC Mangan's evidence which follows I will refer to Mr Robinson as the first applicant. I do so for ease of exposition because, as at 21 March 2009, Mr Robinson used three aliases.

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