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Court and Tribunal Decisions - Australia
New South Wales Administrative Decisions Tribunal (Ireland G (Judicial Member), Farmer L, Taksa L)
26 February 2001
Racial vilification — racial discrimination — Anti-Discrimination Act 1997 (Cth) — where persons who discriminate against another act in concert — vicarious liability of police service — estate of complainant entitled to benefit of order for payment of compensation.
The parents of Edward Russell (the Complainant) lodged a complaint on their son’s behalf under s 88 of the Anti-Discrimination Act 1997 (Cth) (the Act) with the Anti-Discrimination Board. The complaint concerned the circumstances of the complainant’s arrest by police officers on 11th December 1993 for failing to stop for random breath testing and driving a stolen car. The complaint was referred for hearing to the Equal Opportunity Division of the Administrative Decisions Tribunal.
The complainants alleged that in contravention of s 7(1)(a) and s 20(c) of the Act the police officers in the apprehension and arrest of the complainant did unlawfully discriminate against the complainant and did unlawfully racially vilify the complainant on the grounds of race. Further they claimed that the failure of the interviewing police officer to notify the Police Service that the complainant alleged he had been assaulted and injured during his arrest amounted to unlawful racial discrimination and that under s 53 of the Act, the Police Service, as the employer of the police officers, was vicariously liable for the unlawful acts of the police officers.
In conflict with other eyewitness accounts, the arresting police officers denied that they or any other officer used racist language. They further asserted that they had used only the force necessary to restrain the complainant and take him into custody.
Counsel for the police officers submitted:
(a) that s 7(1)(a) of the Act applied only to a discriminatory act perpetuated by an identified person and as the Tribunal was unable to individually identify the perpetrator of the discriminatory conduct the Tribunal could not make a finding against the police officers;
(b) that the terms ‘employee’ and ‘agent’ in s 53 of the Act should be restricted to their common law meanings and so therefore, s 53 did not apply to police officers appointed under the Police Services Act 1990 (NSW);
(c) that the Police Service had not authorised the discriminatory conduct used by the police officers in arresting Edward Russell and had taken all reasonable steps to prevent the officers from contravening the Act; and
(d) that s 88A(1)(b) of the Act only entitles the estate of the Complainant to the benefit of any sum ordered to be paid where the order is made prior to the Complainant’s death.
1. The death of a complainant did not terminate the complaint, which was preserved by s 88A of the Act. The parents of the complainant were able to continue the complaint on the behalf of their son’s estate.
2. Where, as was the case in this enquiry, a group of persons who discriminate against another person act in concert, there is no reason in principle why s 7(1)(a) of the Act should not apply so that each of those persons perpetrates the discrimination within the meaning of the section.
3. The term ‘employer’ in section 53 of the Act should be given an interpretation broader than its common law meaning. It was reasonable to infer that the New South Wales legislature sought to give effect to arts 4(c), 5 and 6 of the Convention on the Elimination of All Forms of Racial Discrimination, requiring state authorities to prevent racial discrimination by government officers. A narrow interpretation would defeat this intention.
4. The abusive language and excessive force used against the complainant were due to his Aboriginality. Therefore, the police officers unlawfully discriminated against the complainant in that he was subjected to less favourable treatment to which a person of different race would not have been treated to in the same circumstances.
5. The Police Service and police officers did unlawfully vilify the complainant because the racial and abusive language together with the excessive force used by the police against the complainant:
6. Comments made by the complainant about his injuries at Bathurst station did not amount to a complaint about the nature or source of such injuries. Therefore, the failure of the interviewing police officer to notify the Police Service was reasonable in the circumstances.
2. The Tribunal has assumed that the President of the Anti-Discrimination Board accepted the complaint under s 88(2) of the Act, which permits a complaint to be made on behalf of another person if the person is under eighteen (18) years of age or has a disability. ...
3. On the death of Edward John Russell in 1999, pursuant to s 88A of the Act, the complaint survived and continued to be maintained by his parents, Helen and Ted Russell. Section 88A of the Act is in the following terms:
88A. Death of complainant does not terminate complaint
(1) If a complainant dies before his or her complaint is finally determined, the complaint survives and the estate of the complainant:(a) may continue the carriage of the complaint, including any appeal, and
(b) is entitled to the benefit of any monetary sum ordered to be paid by the respondent in respect of the complaint.
(2) If a respondent dies before any complaint against him or her is finally determined, the complainant may continue to pursue the complaint (including any appeal) and any monetary sum ordered to be paid in respect of the complaint is payable from the estate of the respondent.
...
9. Mr and Mrs Russell allege that at approximately 2.00am on 11th December 1993, their son, Edward John Russell was apprehended and arrested at the Wiseman’s Creek Road in Oberon in New South Wales and that 10 of the police officers who are respondents, (who will be called ‘the police officers’) were in attendance at the scene of the arrest. The 11th police officer respondent, Detective Sergeant Carter (hereafter called ‘Sgt Carter’) interviewed Edward John Russell at the Bathurst Police Station on the morning of 11th December 1993. Sgt Carter was not present at the scene of the arrest.
...
47. The claim of unlawful racial discrimination against the police officers and the New South Wales Police Service, arises under s 7(1)(a), s 19(b), s 53 and 52 of the Act. At the date of hearing of the enquiry, those provisions were in the following terms:
7. What constitutes discrimination on the ground of race:
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, the perpetrator:(a) 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 of a different race or who has such a relative or associate of a different race ...
53. Liability of principals and employers:
(2) If both the principal and employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.
(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.
...
58. The police officers, who did not give evidence before the Tribunal ... deny individually they used racist language or that they heard other police officers use racist language or that they individually or the other officers conducted themselves towards Edward Russell in a manner other than was necessary to restrain and place Edward Russell into custody. ... [t]hose statements have been examined independently by the Ombudsman [who] expressed doubts about the truthfulness of the statements. The Tribunal cannot ignore the Ombudsman’s opinion although it accepts that it is not bound by that opinion ...
59. The Tribunal has formed the view that the conclusions reached by the Ombudsman and the Commander of the Internal Affairs Unit of the Police Service are correct especially when considered with the evidence of Mr and Mrs Curnuck and Mr Ben Curnuck and the statements of Mr Edward Russell. ...
64. There is no dispute that the evidence establishes that Edward Russell had participated in a dangerous and dramatic escapade in the stolen ute and that the vehicle containing Constables Mountford and Bellamy was involved in a collision with the ute during the chase, in circumstances where those police officers were in special danger. ...
65. When the ute finally stopped, Sgt Healy described in this statement that ... :
When I got to where Mr Russell was standing, he attempted to punch Senior Constable Mountford so the two of us grabbed one arm each and put him on the ground. With the assistance of Senior Constable Hook, we then handcuffed him. The embankment was fairly steep and because Mr Russell was handcuffed it was difficult to get him up the embankment.
66. This statement is at variance with some other of the police statements who place Constable Bellamy with officers Mountford, Gow and Hook at the utility. ... Edward Russell described his apprehension at the utility in these terms:
I couldn’t open the door and I was trying to climb out of the window. Then the coppers, they ran down the hill and ran at me. They dragged me out and a copper grabbed hold of me and a copper swung a bat at me and hit me right wrist. It’s still sore now. They put me on the ground, they held me down and two coppers trod on my leg and they handcuffed me arms behind me. They put the handcuffs on real tight and they then dragged me up the road and they left my shoes down near the car.
67. The police officers state that Edward Russell shaped up to them and that required them to use force to subdue him. Mr Curnuck in his evidence stated that when he went the next morning to inspect the ute, he found that the driver’s side door was jammed and would not open but the window on the passenger’s side had been shattered. This is consistent with Edward Russell’s statement that the police dragged him from the ute.
68. Mr Curnuck in his statement described what he saw from the window of the house of his parents-in-law:
I could see a Holden Rodeo utility down the embankment, there were at least five other vehicles on the road, and I was able to identify them as Police vehicles from their flashing lights and markings. They were at both the front and rear of the utility down the embankment. I then saw a person being taken up the steep embankment from the passenger side of the utility, and from where I was standing, I formed the impression at first the person was on a stretcher, as they appeared to be lying down, as though they had been injured in an accident, although I could not work out in my mind why there was so many police cars present. It appeared to me there was at least four persons, I believed to be police, taking the person up the embankment, and as I walked out the door of the house I realised the person was not on a stretcher but appeared to be held by his wrists.
69. Mr Curnuck, his wife and his son Ben, were staying with Mrs Curnuck’s parents at their house on Wiseman’s Creek Road, Oberon on the night of 10th and 11th of December 1993. ... After observing the apprehension of Edward Russell down the embankment ...[h]e then heard more loud yelling and he heard a person scream. He was able to recall vividly abusive language that was being used by persons standing near the police vehicles, although he was unable to distinguish which person was using the language. He said that one particular voice was extremely loud and he had the impression that that person was out of control and he heard him yell out in a deep voice:
‘Dickhead’ and then said, ‘You black bastards are causing all the trouble around here.’ The same voice then shortly after called out, ‘Blow harder or I’ll tear these balls out and [they] will fall to the ground like a brick.’
70. Most of the other conversation that he heard was bad language with the words, ‘black cunt’ and ‘fucking’ being used frequently. He then observed a person being carried by at least three police officers. They were placed one on either side of the person with one officer behind the person who had his knees bent up and was being held under the arms. ...
78. In the statement made by Edward Russell at the Long Bay Jail on 1st July 1998, a statement taken by his solicitor, he said that he jumped out of the window of the vehicle and somewhere between four and six police men dragged him ramming his head into the door of the vehicle and that while they were doing this he could clearly remember some of them shouting abuse at him yelling, ‘black cunt.’ He stated that the police called him lots of names, ‘but, “black cunt” was what I recall most strongly.’
79. He said:
I recall that the one or two police officers had pinned me down as I cried out ‘help help’. Whilst I was lying face down on the road, they trod on both of my hands which were at my side. They then placed my hands behind my back in the middle of my back. They dragged me up and said, ‘Get up you black cunt’. I recall saying, ‘Yes I’m getting up. Don’t force me to get up. I’m getting up.’ Handcuffs were placed on me whilst I was getting up and I was dragged 50 metres up a hill. The handcuffs were placed with my hands behind my back. One policeman hit me in the ribs towards the right rib and wounded me. I recall saying, ‘What did you do that for?’ The right arm was used in the assault. Two policemen dragged me up to the car and forced me into the car. I then asked them for my shoes but they said, ‘We’re not getting your shoes’. They took me to the police station.
...
81. In normal circumstances it would be expected that a person who had been subjected to abuse and excessive use of force of the nature alleged, would have related the details of that experience in more specific terms than the description in these statements. The lack of detail is explicable by Edward Russell’s illiteracy ... Any inconsistencies and vagueness in the statements is not taken as an indication of lack of veracity in Edward Russell’s allegations. It demonstrates an inability on his part to communicate his experience in a lucid manner.
82. The Tribunal has analysed the statements of the police officers and the evidence of Mr and Mrs Curnuck and Mr Ben Curnuck and the statements of Edward Russell. The Tribunal is satisfied that the police officers have not been truthful in their denial, that one or more or all of them used racially abusive language and used excessive force in the apprehension and arrest of Edward Russell on 11th December 1993. The Tribunal prefers to accept the evidence of the members of the Curnuck family and the statements of Edward Russell ...
83. It has been submitted by Counsel for the police officers that the Tribunal is unable to make a finding of discriminatory conduct against the police officers as the evidence is insufficient to identify individually any one of the police officers as the perpetrator of less favourable treatment of Edward Russell, and s 7(1)(a) of the Act cannot be applied. ...
84. As the Act is beneficial and remedial legislation, the Tribunal is entitled to give it a broad interpretation. The Tribunal is also entitled to apply s 8(b) of the Interpretation Act:
A reference to a word or expression in the singular form includes a reference to a word or expression in the plural form.
85. The Tribunal can see no justification in the context of s 7(1)(a) why such an interpretation should not be applied. Where, as is the case in this enquiry, a group of persons who discriminate against another person, act in concert, there is no reason in principle why s 7(1)(a) should not apply so that each of those persons perpetrates the discrimination within the meaning of that section. ...
91. The Tribunal is satisfied that the police officers at the scene subjected Edward Russell to unfavourable treatment which in the same or similar circumstances the police officers would not have treated a person of a different race. The excessive force used against Edward Russell and the abusive language shouted at him were in, in the opinion of the Tribunal, causally connected with Edward Russell’s Aboriginality. This connection is demonstrated by the use of the phrases ‘you black bastards are causing all the trouble around here’ and ‘black cunt’. ...
92. Applying s 4A of the Act, the racial connotation of the actions of the police officers, is to be taken as the reasons for the conduct of the police officers.
93. Sgt Carter was not present at the site at Oberon. He first came in contact with Edward Russell when Edward Russell was brought to the Bathurst Police Station. At 6.00am on 11th December 1993, Sgt Carter and Constable Steven interviewed Edward Russell ... It is alleged that in the interview Edward Russell complained of an assault by the police. The interview lasted for about 15 minutes. Edward Russell’s answer to the questions put to him were in most cases, unresponsive. At one stage he was asked what his concentration span was and he replied, ‘Coppers just hit me in the head mate.’
...
96. It was submitted that the failure of Sgt Carter to respond properly to Edward Russell’s statements in the interview were part of the mindset of the police officers at the Bathurst Police Station, including Sgt Carter, which reflected the events at the scene of the discrimination against Edward Russell at Oberon. It is claimed that mindset caused Sgt Carter not to have regard to the complaints made by Edward Russell and that that failure was also on the ground of Edward Russell’s race ...
...
99. The Tribunal can find no evidence of a mindset adverse to Mr. Russell in the content or in the manner of the conduct of the interview of Mr. Russell by Sgt. Carter. Mr. Russell in the interview did not emphasise his injuries. He referred to the injuries in answer to questions by Sgt. Carter about his lack of response to questions but not in a manner that would suggest that he was making a complaint about the cause of the injuries or that the injuries were causing him particular discomfort. The Tribunal is unable to draw an inference that Sgt. Carter treated Mr. Russell less favourably than in the same or similar circumstances he would have treated a person who was not an Aboriginal.
100. The Tribunal accordingly directs that the complaint against Sgt Carter be dismissed.
102. It is claimed that the circumstances and the actions and language of the police officers in the apprehension and arrest of Edward Russell on 11th December 1993, constituted unlawful racial vilification. Racial vilification is rendered unlawful under s 20C(1) of the Act. In considering that section, it is necessary to have regard to s 20B which defines ‘public act’. So far as they are relevant to this enquiry, the terms of those sections are as follows:
Section 20C(1): It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.
Section 20B: In this Division, public act includes:(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and play of tapes or other recorded material; and
(b) any conduct ... observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems or insignia, and
...
104. It is submitted by the applicant that the occurrences complained about constitute a public act within the meaning of s 20B of the Act, both in the words and in the conduct used by the police officers in the apprehension and arrest of Edward Russell. The Tribunal has found that abusive and racial language was used by the police officers ... and that the police officers used excessive force which was observable by the public. ... In the view of the Tribunal the words used were communicated to the public and the conduct was observable by the public. The scene ... was lit up because the police vehicles kept their headlights on and this enabled Mr Curnuck to observe the conduct of the police at the roadside.
105. Decisions of the Tribunal demonstrate that the term ‘to incite’ should be interpreted in accordance with the ordinary meaning of that word to be found in the Macquarie Dictionary, ‘to urge on; stimulate or prompt to action’.
106. The term ‘incite’ has been interpreted by the Tribunal in Harou-Sourdon v TCN Channel Nine Pty Ltd [1994] EOC 92-604 and Wagga Wagga Aboriginal Action Group v Eldridge [1995] 92-701 at 78-266, both of which were approved in Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at para 23 and more recently in Western Aboriginal Legal Service Limited v Jones & Anor [2000] NSWADT 102 at para 84.
107. It is not necessary for the complainant to prove that the person or person who performed the public act intended to incite anyone; nor is it necessary to prove that anyone was in fact incited by the public act. It is the capacity of the public act or its likely effect upon the ordinary, reasonable person which is significant, rather than the intent of the person who performed the act: Western Aboriginal Legal Service Limited v Jones & Anor [2000] NSWADT 102 at paras 93 and 99.
108. It is clear that the words and conduct of the police officers incited each other to continue and maintain their excessive use of language and conduct towards Edward Russell. The phrases used as described in the evidence were extreme in their abuse of Edward Russell.
109. The words and conduct of the police officers need to be considered in determining whether the public act incited hatred towards, serious contempt for or severe ridicule of Edward Russell on the ground of his race.
110. In the view of the Tribunal the racial and abusive language, together with the conduct of the police officers in the excessive force that was used against Edward Russell were capable of inciting hatred and serious contempt within the meaning of those terms. ...
111. The evidence shows that when the police rammed Mr Russell’s head against the back of the police utility, they shouted, ‘He’s trying to escape’ and that they laughed. The evidence also shows that the police were laughing at other stages during the incident. It has been submitted that in those circumstances the conduct of the police constituted inciting to severe ridicule of Edward Russell. The statement that he was trying to escape and the laughing were heard both by Mr and Mrs Curnuck. The Tribunal agrees with this submission and it considers that those circumstances constitute inciting to severe ridicule of Edward Russell.
...
114. In view of the findings by the Tribunal that the police officers discriminated against Edward Russell under s 7(1)(a) of the Act and subjected Edward Russell to unlawful racial discrimination under s 20C(1) of the Act, it is appropriate to consider the claim that the Police Service, as the employer of the police officers, is deemed to have done the acts which constitute the racial discrimination and the unlawful racial vilification.
...
116. It was submitted by Counsel for the first respondent that the reference to ‘principal’ and ‘agent’ and to ‘employer’ and ‘employee’ in s 53 should be restricted to the common law meaning of those terms and that police officers appointed under the Police Service Act 1990 (Police Act) were not at common law agents or employees of the Police Service. Counsel for the Applicant submitted that the intention of s 53 is to include in the Act the concept of vicarious liability of a person for the acts of another, and the application of that concept is not adequately met if the meaning of ‘employer’ and ‘employee’ in relation to the position of the Police Service and a police constable, is confined to the common law meaning. The submission continues that the term ‘employer’ should be construed as covering the more broader situation where the relationship between the person doing an act (the police officer) in contravention of the Act, and the public authority (the police service), is so akin to an employer and employee that it would defeat the purpose of the legislation to prevent the Applicant having access to an effective remedy for the discriminatory conduct of the police constable.
...
126. The common law position that a police officer acting in the performance of duties, does so independently of the Police Service or the Crown, so that the Police Service and the Crown are not liable at law for those acts, has been applied in a line of authority in Australia and the United Kingdom. The decisions demonstrate the independence of the actions of a police constable in performing his duties, and distinguishes the position of the constable from the position of an employee under the common law concept of master and servant.
...
144. The Act does not expressly adopt an international convention. The objects of the Act are described as:
An Act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote the equality of opportunity between all persons.
145. The Applicant submitted that the Tribunal was entitled to have regard to extrinsic material, within the ambit of s 33 and 34 of the Interpretation Act, and in particular, to the Second Reading Speech of the Hon D J Landa (Attorney General). He said:
In a consideration of the principles to be embodied in this legislation the government had the benefit of the experience of other places where legislation of this nature had been introduced. Though in respect to race and sex discrimination the provisions of other Acts and specific exceptions provided in this measure follow to some extent the precedents provided elsewhere, the bill provides far more effective remedies than does any other legislation introduced in this country.
In a speech supporting the Second Reading Speech the Honourable J H Hallam said:
I take this opportunity to quote some of the articles of the Universal Declaration of Human Rights which I think are most relevant to his bill [Articles 1, 2 and 21 cited]. Of course, this declaration was ratified by the Australian Government and by many other governments. I believe those articles to be most significant ... I believe they are most relevant to this legislation, which adheres to the fine principles of the Universal Declaration of Human Rights.
The Racial Discrimination Act 1976 (Cth) which was enacted to give effect to The International Convention on the Elimination of all Forms of Racial Discrimination (CERD). CERD was ratified by Australia with effect from 30th October 1975. ...
The Second Reading Speech of the Honourable J Dowd, Attorney General, to the Police Service Act 1990. He stated:
The Police Service Bill the most significant reform for nearly a century in the legislation governing police.
Under the terms of the bills, the Police Service will be driven by modern, efficient and accountable management practices in the spirit of the Public Sector Management Act. Control of staff in the workplace will be at the discretion of the Commissioner. In other words, there is nothing to prevent the supervision of police officers by administrative officers and vice versa. The present dual structure of police force and police department has on occasions led to disputes over authority and responsibilities. A degree of integration has already been introduced on a voluntary basis. However, under these new arrangements the Commissioner will establish lines of responsibility applicable to all employees.
146. In the view of the Tribunal, it is by no means clear whether the term ‘employer’ in s 53 of the Act should be confined to its common law meaning. Such a narrow construction may not represent the intention of Parliament in the context of the position of the New South Wales Police Service and police constables acting in the performance of their duties. Parliamentary speeches in support of the Act, quoted earlier, show that it was intended that the Act follow the precedent of other Acts of a similar nature passed in Australia. No doubt this would encapture the Racial Discrimination Act 1976 (Cth) which expressly ratified CERD (see s 7 of that Act).
147. It is reasonable to infer that the New South Wales Parliament intended that the New South Wales legislation would adopt the principles of CERD. Articles 4(c), 5 and 6 of CERD require state authorities such as the police service to prevent racial discrimination by government officers, by individual groups or institutions and to provide effective protection and remedies against contravention of the Convention.
148. More generally, the High Court in Minister for Immigration & Ethnic Affairs v Teoh [1995] 128 ALR at 353 dealt with the principle that a statute is to be construed so as to conform with established rules of international law. ...
149. A narrow interpretation of the term ‘employer’ in s 53, by limiting the term to the common law meaning in the case of the Police Service and a police constable, would defeat the intention of the New South Wales Parliament to give effect to CERD. The Police Service would be immune from liability for racially discriminatory acts of police constables in performing their duties. Victims of racial abuse by police constables performing their duties would be left with remedies under the Act only against the police constables concerned. Such remedies, particularly where monetary compensation is awarded, in a large proportion of claims would be ineffectual. Such a result is contrary to the provisions of CERD and it would produce a result that is manifestly unreasonable. A meaning of ‘employer’ in s 53 which avoids this result is justified and appropriate. Reasonableness and conformity to principles of interpretation are achieved by interpreting the meaning the term ‘employer’ in s 53 of the Act so as to encompass not only the common law meaning of that term, difficult as that is to interpret (see Finkelstein J in Konrad v Victorian Police [1999] FCA 988; 165 ALR 23), but a broader relationship as described by Finkelstein J as:
a person who performs work or labour (personal services) for another; that is to say, a person who sells his labour and not the product of his labour.
150. An examination of the provisions of the Police Act do not detract from the application of this definition of employee to the position of a police officer appointed under that Act. ...
151. Mr Haylen QC submitted on behalf of the Police Service that it is not correct to approach the interpretation of s 53 by focusing on the consequence that if the relationship of employer and employee does not exist, the person discriminated against or vilified will not have somebody of financial substance to levy damages against. Mr Haylen emphasises that the legislation is intended to bring about a change in attitude on matters about which the community perceived a difficulty and ‘in certain circumstances where there’s sufficient connection that the employer may be liable’. The experience of the Tribunal in complaints relating to discrimination by employees points markedly to the need to encompass the widest variety of relationships where a person is in a position to influence or control the actions of others, and by the exertion of such influence or control is able to reduce or eliminate actions which otherwise would be unlawful under the Act. Section 53 of the Act has the salutary effect of focusing the attention of persons in relationships of employer to employee to ensure that employees are educated about the need to act in a non-discriminatory manner to ensure that employees act lawfully. This responsibility is best sheeted home to employers through an exposure to monetary compensation payments if their employees fail to act in a non-discriminatory manner. The community is best protected by a broad application of s 53 in this manner.
152. Applying the principles of interpretation and construction outlined earlier to the terms ‘employer’ and ‘employee’ in s 53 of the Act, and having regard to the context of s 53 as part of legislation intended to conform to international law, the Tribunal finds that when a police constable in the performance of duties acts in contravention of the Act, the Police Service is deemed by s 53 of the Act to have done the act and is liable jointly and severally with the police constable for the liability that arises under the Act.
...
155. Three senior officers of the Police Service presented evidence and material to support the Police Service contention that it had not authorised the actions of the police constables in the discriminatory manner that they carried out the apprehension and arrest of Edward Russell and to demonstrate that the Police Service had taken all reasonable steps to prevent the police constables from contravening the Act. ...
156. The import of the material following the report of the Royal Commission into Aboriginal Deaths in Custody in 1991 was the adoption by the Police Service of a more focused approach to its relationship with the Aboriginal community. From the period from 1992 to 1994, a considerable amount of activity occurred. ...
163. The evidence produced by the Police Service is not sufficient, in the view of the Tribunal, to discharge the onus on the Police Service to satisfy the Tribunal that it has not authorised the actions of the police constables carrying out discriminatory and racial vilification conduct towards Edward Russell. The evidence shows that the Police Service has made increasingly focused actions to develop a better relationship between the member of the Police Service and the Aboriginal communities. The degree of the implementation of this approach varies in geographical areas with some Aboriginal communities participating and co-operating with the police efforts in different degrees. The evidence shows however that the Police Service has failed to develop and to disseminate to its operational police officers a definite and finite policy of anti-discrimination towards Aboriginal people. ...Without a definite policy which is adequately disseminated to its operational police force, police constables will have no positive direction other than statements of policy of a desire to improve relationships with Aboriginal communities. The very conduct which is complained of in this enquiry is likely to be repeated. The purpose of s 53 of the Act to bring home to persons in a position of employer/employee relationships the need to manage and control actions of its labour force is not being achieved. ...
164. The Tribunal finds that the New South Wales Police Service has not discharged the onus of satisfying the Tribunal under s 53 of the Act that it did not authorise the unlawful discriminatory conduct and the racial vilification directed by the police officers to Edward Russell on 13th December 1993. In addition, the Tribunal finds that the Police Service has not taken all reasonable steps to prevent those police officers from contravening the Act in relation to their conduct on that occasion.
...
208 Pursuant to s 113 of the Act, the Tribunal makes the following directions:
1. That the complaint, brought on behalf of the late Edward Russell, that the Police Service and the police officers named as second to 11th respondents in the Points of Claim filed in this enquiry, unlawfully discriminated against the late Mr Edward Russell on 11th December 1993, in terms of s 7(1)(a) of the Act, is substantiated.
2. That the claim, brought on behalf of the late Mr Edward Russell, that the Police Service and the second to 11th respondents named in the Points of Claim, unlawfully vilified the late Edward Russell under s 20(C) of the Act, is substantiated.
3. That the claim brought on behalf of the late Mr Edward Russell that on 11th December 1993, Detective Sgt Carter, the 12th respondent named in the Points of Claim, unlawfully discriminated against the late Edward Russell, has not been substantiated, and the Tribunal directs that that claim be dismissed.
4. That the Police Service and the second to 11th respondents, other than Senior Constable Mountford and Senior Constable Callaghan, pay to the Estate of the late Edward Russell, as compensation for the unlawful conduct, the subject of Directions 1 and 2, a total amount of $30,000.00 and that the liability of each of the Police Service and the relevant respondents be joint and several. It is noted that the effect of this Direction will be that the Estate of the late Edward Russell will be entitled to recover the amount of $30,000.00 from any one of the respondents. The question of the rate of contribution between the respondents for the amount awarded was not addressed to the Tribunal and the Tribunal will consider a direction as to contribution if the respondents make an application to the Tribunal.
5. That the New South Wales Police Service and each of the police officers being the second to 11th respondents, other than Senior Constable Mountford and Senior Constable Callaghan, within 28 days of the date of the date of this decision jointly cause to be published in the Oberon Review an apology to the late Mr Edward Russell and to his parents, in the form of the apology annexed to this decision and marked ‘A’.
6. That the Police Service and each of the Police officers the subject of the Direction 4, individually write a letter to the parents of the late Edward Russell, containing an apology in the form annexed hereto and marked with the letter ‘B’.
7. That the New South Wales Police Service cause a record to be made on the file of each of the Police Officers being the second to 11th respondents, other than Senior Constable Mountford and Senior Constable Callaghan, being a record kept by the New South Wales Police Service called ‘Employee Management Record’, stating that this Tribunal, after enquiry, has found that a complaint of unlawful racial discrimination and a complaint of unlawful racial vilification under the Anti-Discrimination Act 1997, arising out of the apprehension and arrest on 11th December 1993 of the late Edward Russell, against (name of officer), was substantiated.
(To: Mr and Mrs Russell)
1. On the 11 December 1993, eleven police officers stationed at the Bathurst Police Station apprehended and arrested Edward John Russell, an Aboriginal person, on the Wiseman’s Creek Road at Oberon.
2. The Equal Opportunity Division of the Administrative Decisions Tribunal has found that the conduct of the police officers, and the language used by them, towards Mr Russell during his arrest, were in breach of the racial discrimination and the racial vilification provisions of the Anti-Discrimination Act.
3. The Tribunal also found that the NSW Police Service was liable under the Act for the conduct of the officers on that occasion.
The NSW Police Service and we, the officers involved who are still members of the police service, apologise to the parents of the late Mr Russell, for the conduct of the police officers on that occasion.
(To: Mr and Mrs Russell)
I am a member of the NSW Police Service who was involved in the apprehension and arrest of your son, Edward John Russell, on the Wiseman’s Creek Road, at Oberon, on 11 December 1993.
The Equal Opportunity Division of the Administrative Decisions Tribunal has found that the conduct of the police officers, and the language used by them, towards your son during his arrest, were in breach of the racial discrimination and the racial vilification provisions of the Anti-Discrimination Act.
I wish to apologise to you for my conduct on that occasion.
(To: Mr and Mrs Russell)
On the 11 December 1993, eleven police officers stationed at the Bathurst Police Station apprehended and arrested Edward John Russell, an Aboriginal person, on the Wiseman’s Creek Road at Oberon.
The Equal Opportunity Division of the Administrative Decisions Tribunal has found that the conduct of the police officers, and the language used by them, towards Mr Russell during his arrest, were in breach of the racial discrimination and the racial vilification provisions of the Anti-Discrimination Act.
The Tribunal also found that the NSW Police Service was liable under the Act for the conduct of the officers on that occasion.
On behalf of the NSW Police Service I wish to apologise to you for the conduct of the police officers on that occasion.
Applicant Representative:
Applicant
Representative for 1st Respondent:
N Poynder, Barrister
Respondents:
W Haylen QC with G Willis Barrister
Representative for 2nd, 3rd, 5th, 6th, 7th, 8th, 9th, 10th, 12th Respondents:
C Ronalds, Barrister
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2001/5.html