Ms Solape Noimat Sadiq complained to the Anti-Discrimination Board that she was discriminated against in the provision of services by the Commissioner of Police on the grounds of her disability contrary to the Anti-Discrimination Act 1977 (ADA). The complaint was declined by the President of the Board. Ms Sadiq now seeks the leave of the Tribunal to proceed with her complaint.
[3]
Relevant principles
A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: (s 87A(1)(a)(i) of the ADA).
Section 92 provides:
"92 President may decline complaint during investigation
(1) If at any stage of the President's investigation of a complaint -
(a) the President is satisfied that -
(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or
(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or
(iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or
(iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or
(v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or
(vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or
(vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or
(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,
the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.
(2) The President, in a notice under this section, is to advise the complainant of -
(a) the reason for declining the complaint or part of the complaint, and
(b) the rights of the complainant under sections 93A and 96."
Where the President has declined a complaint under s 92 of the ADA, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so (s93A) (as has happened in this case). The complaint may not be the subject of proceedings before the Tribunal unless the Tribunal grants leave (s 96(1)).
Section 96 of the ADA gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed, which is not confined to the grounds on which the President declined the complaint, although the Tribunal may have regard to those grounds. That discretion must, however, be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme. Leave must be granted or refused depending on what is fair and just in the particular circumstances. It is for the plaintiff to establish that the leave should be granted (Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25-36] [58-61]).
In assessing the available evidence, the Tribunal is to take the applicant's case at its highest, by accepting that everything which she has put in evidence is true and then determine whether she could possibly succeed in her complaint (Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73).
[4]
The circumstances of the complaint
The circumstances were that on 6 March 2020 Ms Sadiq called the emergency number and requested police assistance at her home due to what she described in her complaint as "a domestic issue that had occurred between my partner and me." She said that Senior Constable McNally and four male police officers attended her home in response to the call.
She claimed that she had a disability which manifested itself at the time in being deeply emotional, tearful, hypersensitive, paranoid and disorientated. She identified the disability in her complaint as being ADHD, chronic anxiety and depression.
She alleged that in providing services to her, Senior Constable McNally discriminated against her on the ground of her disability by:
1. Requiring her to answer questions
2. Requiring her to ensure that the information she provided was that which she would be prepared to give in court as a witness
3. Failing to advise her that she could decline to take part in the interview or undergo the interview at a later date
4. Failing to notify her that she was entitled to a support person under the NSW Police Force Code of Practice for Crime and s 30 of the LEPR Regulation 2016
5. Not offering her the opportunity to review the information she had provided.
She said that the experience left her feeling violated, abused and exploited. She stated that she felt as if Constable McNally raped her while she was unconscious, and took all the information she wanted "for her purpose and pleasure" and that she was "brandishing the 'rape' trophy" by proceeding with the charges against her partner. Her sense of safety was diminished and she no longer trusted the police. She sought a written acknowledgement that she should have been recognised as a person with a disability, an apology, and that the police:
1. Relinquish all the information obtained from her and the video recording
2. Relinquish the entire body of evidence for the charges against her partner
3. Relinquish all the charges against her partner of common assault under s 61 of the Crimes Act 1900, attempting to stalk or intimidate herself and her son.
Copies of the relevant pages of the constable's notebook were in evidence showing the notes taken which were signed by Ms Sadiq. Ms Sadiq's witness statement was also part of the evidence provided by her.
Constable McNally's statement in the criminal proceedings was in evidence which stated that she attended Ms Sadiq's home in response to a Police radio broadcast advising that her partner was being abusive and had taken her keys, and that Ms Sadiq had locked herself and her son in the bathroom.
When she arrived she was admitted to the home by Ms Sadiq and she interviewed her without her partner present. She said that Ms Sadiq showed her a video of her partner doing something on her phone and she seized the phone as evidence.
On 28 July 2020 Ms Sadiq wrote to Senior Constable McNally stating that she had become aware that the charges against her husband were listed before the Sutherland Local Court for 2 September 2020 and that she had lacked the mental capacity and emotional stability to accurately represent the facts of what occurred on 6 March 2020. She claimed that the Senior Constable had exploited her vulnerability in performing her duties. She asked for a copy of the video recorded by the police which had not been provided to her partner's lawyer and withdrew her witness statement. On 21 August 2020 the Area Commander wrote to her advising that the charges against her partner would proceed and the court would determine the outcome. On 14 September Ms Sadiq lodged her complaint of discrimination with the Anti-Discrimination Board.
The definition in 4 of the ADA of "disability" includes " a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour."
Section 49B provides:
"49B What constitutes discrimination on the ground of disability
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator -
(a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.
…
(4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability."
Section 49M provides:
"49M Provision of goods and services
(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability -
(a) by refusing to provide the person with those goods or services, or
(b) in the terms on which he or she provides the person with those goods or services.
(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services."
Ms Sadiq authorised her partner, Mr Emmanuel Gbenebichie, to act on her behalf in the complaint process before the Anti-Discrimination Board.
The President of the Board declined the complaint pursuant to s92(1)(a)(v) and (vii) of the ADA on the basis that she was satisfied that:
1. The subject matter had been, was being or should be dealt with by another person or body, namely criminal proceedings and
2. It was not in the public interest to take any further action in respect of the complaint or any part of the complaint where the person authorised to act on behalf of the complainant was the person who was charged by the Police.
In these proceedings Ms Sadiq sought to have Mr Gbenebichie appear on her behalf as agent but this was refused. Thereafter she represented herself.
[5]
Factors under s 92 of the ADA
As Ms Sadiq is not represented by Mr Gbenebichie, that factor is no longer relevant with regard to the public interest.
The President was also satisfied that the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body. This was a reference to the criminal proceedings initiated by the respondent against Mr Gbenebichie and in which Ms Sadiq's statement will be used. Those proceedings will determine whether Ms Sadiq's statement can be adduced as evidence in those proceedings but will not address any issues of discrimination.
Another factor which may be considered is whether the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance.
As explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491:
"1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless."
In Williams v Spautz [1992] HCA 34; 174 CLR 509 the majority of the High Court (Mason CJ, Dawson, Toohey and McHugh JJ) held that an abuse of process will be present when:
"…the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed … or some collateral advantage beyond what the law offers"'. [36]
As to whether the moving party's motivation must be established, the majority said [41]:
"Inquiry into motivation alone might prove a fragile foundation on which to base an exercise of the power to grant a permanent stay. For that reason, apart from any other, it is more satisfactory to base an exercise of the jurisdiction in cases of improper purpose upon a use or threatened use of the proceedings for such a purpose. Then the conclusion which the court reaches is more likely to be founded upon objective evidence rather than subjective evidence of intention."
They approved the statement of Slade LJ that:
"a person alleging such an abuse must show that the predominant purpose of the other party in using the legal process has been one other than that for which it was designed." (at [42]).
There are a number of factors which could suggest that Ms Sadiq had a collateral purpose for making the complaint, namely ensuring that the charges against her partner do not proceed or are hampered through lack of evidence:
1. Her letter to Senior Constable McNally requested access to evidence for her partner and his lawyer and sought to withdraw her evidence;
2. The remedies sought include the withdrawal of the evidence she provided to police and to have the charges against her partner dropped;
3. The alleged act of discrimination occurred on 6 March but the complaint was not lodged until 14 September, after the first mention of the criminal proceedings.
4. Mr Gbenebichie was acting for her in the complaint until the matter reached the Tribunal.
Ms Sadiq submitted that her complaint was brought for her own purposes and denied that her husband had any role in it. She said she should not be denied access to rights due to her association or relationship with any third party including her partner.
While there are factors which indicate there was a collateral purpose in bringing the complaint they are not sufficient in my view to objectively determine that this was the predominant purpose. Therefore I have also considered whether the complaint lacks substance or is misconceived which are also relevant factors.
Ms Sadiq as the complainant must prove the facts of her case on the balance of probabilities.
Ms Sadiq said her complaint was one of indirect discrimination under s 49(1)(b) of the ADA. Should she be granted leave to proceed, in order to establish her claim she must establish that:
1. She has a disability within the meaning of the ADA;
2. The respondent, in performing the described functions, was providing a "service" within the meaning of the ADA;
3. She was required by the respondent to comply with a requirement or condition;
4. The requirement or condition is one with which a substantially higher proportion of persons who do not have her disability comply or are able to comply, and which is not reasonable having regard to the circumstances of the case; and
5. She was not able to comply with the requirement or condition.
The respondent submitted that there is no evidence before the Tribunal of Ms Sadiq's disability other than her own statement. This is not uncommon however at the leave stage. Ms Sadiq has identified her disability and described how it impacts her. For the purposes of the leave application I will assume that the applicant can establish that she has the identified disability and that it affects her in the manner claimed.
The respondent did not concede that it was providing a service. Under s 6 of the Police Act 1990, police provide services which 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, and
(c) the provision of essential services in emergencies, and
(d) any other service prescribed by the regulations."
The police attended the home at Ms Sadiq's request. The police constable was engaged in functions designed to protect persons and property and to prevent and detect crime. It is possible, therefore that Ms Sadiq could establish that she was provided with a service by the respondent.
To come under s 49M, the discrimination must occur in the terms on which the service is provided.
Ms Sadiq identified the requirements or conditions that she was required to comply with by the Senior Constable on 6 March 2020 to be that she was required to take part in a "generic" process in the taking of her statement, specifically:
1. That she be attentive to and understand the numerous detailed questions put to her, and provide detailed responses
2. That she ensure that all the information she provide is that which she would be prepared if required to give in court as a witness and accurately represent the events that occurred
3. That she "assume the mental and emotional state that affords me the unimpaired cognition - free of my disability, to adequately comprehend and exercise or discretion" in order to comply with the above requirement.
Ms Sadiq mentions in passing that Senior Constable McNally was made aware of her disability but does not state how or when this happened. It is evident from the notes taken by Senior Constable McNally that Ms Sadiq told her on 6 March 2020 that she and her son both had ADHD. There is no evidence that she disclosed that she had chronic anxiety and depression.
Ms Sadiq has not provided any evidence of how the alleged requirements or conditions were imposed upon her as part of the terms of the service. Police Constable McNally's statement of evidence states that she had a conversation with Ms Sadiq and that Ms Sadiq "hesitantly" showed her a video on a phone. Ms Sadiq does not report any words used or other means that were used to impose compliance with those requirements or condition, even though she describes the process in the strongest terms as a "rape".
As to whether the alleged requirements or conditions were unreasonable, Ms Sadiq relied upon the NSW Police Force Code of Practice for CRIME and cl 30 of the Law Enforcement (Powers and Responsibilities) Regulation 2016.
The identified cl 30 provides that a person may be a support person for a detained person or protected suspect who is a vulnerable person. Ms Sadiq was not a detained person or protected suspect. The Code of Practice referred to also applies to offenders, not victims. Therefore it has no relevance to Ms Sadiq.
There is no other evidence which indicates the unreasonableness of the requirements or conditions, assuming they were imposed.
I acknowledge that Ms Sadiq is self-represented and it is difficult for a self-represented litigant to present a case in this area of the law. If leave is not granted that will dispose of her right to prosecute the complaint.
If leave were granted and she were able to establish that the alleged requirements or conditions were imposed upon her, however, the evidence does not support a finding that she was unable to comply with the specified requirements or conditions, since she did in fact provide the information required of her to the police. If an applicant experiences serious disadvantage or hardship in complying with a requirement, that may also mean that the person is, in a practical sense, unable to comply with the requirement (Clarke v Catholic Education Commission (2003) 202 ALR 340 ; Catholic Education Office v Clarke (2004) 138 FCR 121 and Hurst v State of Queensland (2006) 151 FCR 562; Wright v Commissioner of Police, NSW Police Force [2014] NSWCATAD 16).
There is no evidence, however, that she experienced serious disadvantage or hardship in complying with the alleged requirements. Ms Sadiq's witness statement, which she attached to her complaint both as taken in the police officer's notebook and in its formal form, is coherent, detailed and contains a description of relevant events. Its contents suggest that she was able to understand the questions put to her and provide detailed responses and adequately comprehend what was being said. She has not identified in what way the statement was inaccurate or specified which if any of the statements in it she did not make. In her letter to Senior Constable McNally she said that she realised her complaint was made "prematurely and impulsively". This suggests that she regrets making a statement but does not indicate that the statement was false or inaccurate.
[6]
Consideration
Based on the available evidence taken at its highest, I am not satisfied that Ms Sadiq would be able to prove to the required standard that there were any unreasonable requirements or conditions imposed upon her by the respondent in the provision of a service to her. Even if she did establish this, I consider it is improbable that she could establish that she was unable to comply with them or that she suffered any serious disadvantage in complying. I conclude therefore that the complaint lacks substance and also that the conduct alleged, if proven, would not disclose the contravention of a provision of the ADA. I am not satisfied that it would be fair and just for the complaint to proceed.
[7]
Orders
1. Leave to proceed is refused under s 96(1)(a) of the Anti-Discrimination Act 1977.
[8]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 02 February 2021