Mariani v NSW Police Force, State of NSW CaseBase | [2013] NSWADT 35 | BC201255335 MARIANI v NEW SOUTH WALES POLICE FORCE, STATE OF NEW SOUTH WALES BC201255335 Unreported Judgments NSW · 99 Paragraphs New South Wales Administrative Decisions Tribunal C Huntsman Judicial Member, N Hiffernan Non-Judicial Member and D Kelleghan Non-Judicial Member 3456/9/2012, 11 February 2013 [2013] NSWADT 35 Headnotes Disability Discrimination in provision of services; whether services; whether respondent refused services to applicant as a vulnerable person; disability; less favourable treatment; causation (CTH) ss 4, 49B and 49D Anti-Discrimination Act 1977 (NSW); section 112, 122, 123 Law Enforcement Powers and Responsibilities Act 2002; various clauses Law Enforcement (Powers and Responsibilities) reg 2005; s 5 Disability Discrimination Act 1992 (Cth) Commissioner of Police, NSW Police Service v Estate Edward John Russell and Ors. [2001] NSWSC 745 (31 August 2001); Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 (20 July 2012); - Patrick v State of South Australia (No 2) [2009] SAEOT 1 (21 January 2009); Commissioner of Police v Mohamed [2009] NSWCA 432 (23 December 2009); Purvis v New South Wales [2003] HCA 62; 217 CLR 92; 202 ALR 133; 78 ALJR 1 C Huntsman Judicial Member, N Hiffernan Non-Judicial Member and D Kelleghan Non-Judicial Member. REASONS FOR DECISION [1] This was an application by Mr Adrian Mariani (the applicant) alleging disability discrimination in the provision of services, by the respondent, the NSW Police Force, State of New South Wales. The President of the Anti- Discrimination Board referred the application to the tribunal for determination. The complaint of disability discrimination was made by the applicant on 18 August 2010, pursuant to the Anti-Discrimination Act 1977 NSW (the AD Act), and was for the period 19 August 2009 to 18 August 2010. Background [2] The applicant and his brother were involved in a fight at the family home on 19 August 2009. The applicant wounded his brother with a knife. The applicant telephoned for an ambulance, by making an emergency "000" call. The transcript of that call reveals that the applicant told the operator "we were in a brawl and I reacted." The operator asked whether there was a fight and the applicant stated "Between my brother and I yes". Police attended the family home at around 12.20pm, the first police to arrive were Constable Banner and Constable Bayer. Police documents refer to three stab wounds; the applicant's documents refer to two wounds, in his oral evidence the applicant referred to cutting his brother's finger/hand. Other police arrived at the family home including Detective Senior Constable Last and Detective Senior Constable Wilkins. The applicant's brother was taken to hospital for treatment and the applicant was arrested and taken to Castle Hill police station by police vehicle. A phone call was made to the applicant's father by Detective Senior Constable Wilkins en route to the police station. Page 2 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 [3] Constable Banner was told by the applicant's brother, Julian, soon after police arrived, that the applicant had depression. She does not recall whether she reported this to any other police officer. The applicant at no time mentioned this to police. [4] At the police station the applicant was taken to the custody area and placed under the supervision of the custody manager, Sergeant Hunt, who assessed and processed the applicant according to her obligations under the Law Enforcement Powers and Responsibilities Act 2002 ("LEPR Act"). There is dispute in this matter about her compliance with her obligations and the tribunal's findings are further detailed below. [5] The applicant's mother, Ms Kim Mariani, arrived at the police station in the company of the applicant's sister. She visited the applicant in the cells and was allowed time with him by Sergeant Hunt. While she was there Sergeant Hunt provided a blanket to the applicant. When the applicant's mother left the cells she met her husband, Mr Gianni Mariani, who had arrived at the police station, and had a conversation with her husband and police. The content of this conversation is a matter of dispute between the parties but it is common ground that the applicant's parents told Detective Senior Constable Last and Detective Senior Constable Wilkins that the applicant had Asperger's Syndrome. They did not mention depression. The applicant's parents did not personally so advise the custody manager, Sergeant Hunt. [6] It is not in dispute that while at the police station the applicant's parents advised Wilkins and Last that the applicant had Asperger's syndrome, but did not advise the custody manager. [7] The applicant's father, Mr Gianni Mariani, visited the applicant in the cells, and sat in the dock with the applicant for at least one hour. Whilst the applicant 's father was sitting with the applicant in the dock Detective Last and Detective Senior Constable Wilkins attended and asked the applicant, in the presence of his father, whether he wished to participate in a record of interview and the applicant, after asking who would be present, declined. [8] The father's evidence is that when he left the applicant he was calm and sleepy. [9] When the applicant's mother visited the applicant in the cells she was shown a piece of paper by the applicant which the custody manager had given the applicant advising him of his rights, but she was too distressed to read it, and also did not have her reading glasses. When the applicant's father was with the applicant in the dock he was also given a copy of the piece of paper. He recalls the paper detailed the applicant's rights not to say anything and to legal representation. Mr Gianni Mariani returned the paper to the custody manager as the applicant already had a copy. He asked the applicant whether he had said anything to the police and that he advised he applicant not to say anything. The custody manger, Sergeant Hunt, had prior to this recorded on relevant paperwork the applicant's response to the caution which she had given "keep my mouth shut". [10] The applicant was not granted bail by police and spent the night in custody. During his time in custody, Sergeant Hunt assisted the applicant to make a phone call to a lawyer, arranged for him to receive medical attention and also obtained a meal for him. [11] Police applied for an apprehended violence O (AVO) to protect the victim, Julian, and at court the next morning a Magistrate granted conditional bail and made an apprehended violence order. The effect of the AVO was that the applicant was unable to live in the family home from August to November 2009 and resided at his grandmother's in this period. The AVO was subsequently varied so that he was able to return to live at home while waiting for charges to be finalised by the court. His bail was also subsequently varied to remove reporting conditions, although because the police data base was not updated, police attended his home to take action for his failure to report as required by the previous bail conditions. The police were shown papers recording the court's variation of bail and left the premises, and contacted the family subsequently to note that the bail had been so varied. After this incident the police made an entry in the police data base, known as COPS, that the applicant had Asperger's syndrome and was a vulnerable person. The wording of the COPS entry is part of the applicant's discrimination action in these proceedings. [12] It is not in dispute that the applicant was charged in relation to the incident: pursuant to section 33(1)(a) of the Crimes Act 1900 with wound person with intent to cause grievous bodily harm domestic violence related; and pursuant to section 35(4) of the Crimes Act 1900 — recklessly wound any other person domestic violence related. It is not in dispute that the court dealt with the charges by way of a dismissal pursuant to section 32 of the Mental Health (Forensics Procedures) Act 1990 on 16 August 2010. The decision of the court to so order was said to be based on the applicant's Asperger's syndrome. The applicant's case [13] The applicant provided evidence in the form of written statements and oral evidence from the applicant's father, Gianni Mariani, the applicant's mother, Kim Mariani, and the applicant. The applicant's brother, Julian Mariani, was not called to give evidence in the proceedings by the applicant. The applicant relied on a report by Consultant Forensic Psychologist,Mr Tim Watson-Munro, dated 27 August 2012, as to pain and suffering/psychological distress. The Points of Claim Page 3 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 [14] The applicant provided points of claim which it is useful to briefly summarise. The points of claim stated that factual issues included that the applicant was diagnosed with Asperger's Syndrome in 1999 and at all material times suffered from Asperger's Syndrome and depression. The points of claim state that at the time of questioning and arrest on 19 August 2009 the respondent was required to provide special police services to the applicant as a vulnerable person and the failure to do so caused the applicant to become fearful, unwillingly compliant, and suggestible to answers provided by the police at the scene, causing the applicant to make admissions and to provide information in an inaccurate and involuntary capacity. Police officers did not caution the applicant or inform him of his rights to a support person during the arrest. [15] The points of claim state that at the police station the custody manager was aware or should have been made aware the applicant was depressed. The custody manager did not assist the applicant to make a call to a support person or a legal practitioner or advise the applicant he was entitled to a support person nor did the custody manager ensure the applicant understood the caution. While the applicant was in custody at the police station his parents told police that he suffered from Asperger's Syndrome and was incapable of managing stressful encounters. He was offered to participate in a record of interview with police which he declined and at no time did police inform the applicant he was entitled to have a support person present or explain anything to him about the support person at all, nor were the parents so informed. It is stated in the points of claim that police officers indicated to the applicant and his parents that mental illness was not relevant to the law. The applicant was charged, refused bail by police and remained in custody overnight which was distressing. The points of claim asserts that the custody manager declined to assist the applicant to call legal aid and informed the applicant he was not entitled to legal aid. The points of claim note that an application for a provisional Apprehended Violence O (AVO) was made by police and granted by the court. A condition of the order was the applicant was not to reside in the family home. The application for the AVO contained the information that the applicant may be suffering from Asperger's Syndrome. The applicant resided with his grandmother until bail conditions were varied so he could return home on 5 November 2009. [16] The points of claim stated that the bail conditions required the applicant to report to police twice daily which was distressing and humiliating, and that on 22 April 2010 bail conditions were removed as a bail variation by the court. Subsequently police attended the premises of the applicant, on 31 July 2010, for an alleged breach of bail and after that incident the police COPS system was updated to note that "Adrian Mariani is a vulnerable person such that he suffers from Asperger's syndrome … .." The points of claim assert that the COPS entry was made without consultation and may lead to future acts of discrimination. On 16 August 2010 the charge was dismissed pursuant to section 32 of the Mental Health (Forensic Procedures) Act 1990. The points of claim argue that the applicant had a disability and that the respondent was required to provide the applicant with services and failed to do so. It is asserted that Constable Banner failed to advise the custody manager that the applicant suffered depression. At para 56 the points of claim the applicant details the discrimination on the grounds of disability as. the respondent by its officers did not regard the applicant's disability as relevant to the law. The respondent by its behaviour did not regard the applicant as a vulnerable person. The respondent failed to comply with its statutory duties to provide police services to the applicant as a vulnerable person. The respondent discriminated against the applicant pursuant to section 49B of the Anti-Discrimination Act New South Wales 1977 on the basis of refusing to recognise his disability and thereby failing to comply with its statutory duty to provide special police services to the applicant. The respondent, in breach of its statutory duty under the Police Act and LEPRA failed to provide (police) services to the applicant as required pursuant to section 49M Anti-Discrimination Act New South Wales 1977. The respondent has provided an inaccurate description of the applicant in the COPS entry system which may lead to discriminatory behaviour by the respondent in future dealings with the applicant. The respondent's case [17] The respondent's case consisted of witness statements and oral testimony from Constable Banner, Constable Bayer, Detective Senior Constable Last, Detective Senior Constable Wilkins, Sergeant Karen Hunt; and a written statement was provided by Senior Constable Kerrie Wilson. Photographs of the applicant's residence taken by police on the night of his arrest were also tendered. The respondent provided points of defence prior to the hearing, and made detailed written and oral submissions during the proceedings. It is noted that in the points of defence the respondent denied liability and in particular did not admit that the applicant had a disability, nor that there was a breach of police requirements to the applicant in custody, and disputed the applicant's claim that the respondent was providing services to the applicant as detailed by the applicant in the points of claim. Discrimination Legislation Page 4 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 [18] The Anti-Discrimination Act 1977 NSW (the AD Act) provides that it is unlawful to discriminate in employment on the grounds of disability. Disability is defined in s 4 of the Act: disability" means: (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. [19] The AD Act provides that disability includes presumed disability (refer s 49A). Section 49B of the AD Act sets out what constitutes discrimination on the ground of disability: 49 B(1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability 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 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 such 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 subs (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. [20] Discrimination in provision of services is made unlawful pursuant to s 49M of the AD Act: 49 M 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. 49D Discrimination against applicants and employees. [21] Section 49M therefore provides that it is unlawful to discriminate on the ground of disability by refusing to provide a service or by the terms on which the service is offered. [22] Judicial guidance indicates that the service in issue must be identified with precision. A summary of the authorities was undertaken by Justice Yates in Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 (20 July 2012) Robinson, stating: Page 5 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 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] HCA 30 ; (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. … Earlier, in Waters v Public Transport Corporation [1991] HCA 49 ; (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. … .. … In Rainsford v Victoria [2005] FCAFC 163 ; (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 … Subsequently, in Rainsford v Victoria [2007] FCA 1059 ; (2007) 167 FCR 1 Sundberg J (at [72]) stressed that not all government functions are services: The judgments in IW [1997] HCA 30; 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. [23] As set out above, in the points of claim the applicant set out the services which the applicant asserts were either refused by police or provided on terms and conditions which were discriminatory. The provision of services by police, in the context of the Anti-Discrimination Act NSW 1977 (the AD Act) has been judicially considered — the applicant's representative referred the tribunal to judicial authorities, and the respondent's representative provided detailed submissions in relation to the authorities. The Tribunal has carefully considered the guidance provided in the authorities. The tribunal's findings on whether the respondent was providing services to the applicant at the relevant time, and applicable authorities, are discussed further below. Law Enforcement Powers and Responsibilities Act 2002 ("LEPR Act") [24] Given the applicant's case was in large part based on the contention that the respondent refused services to the applicant by not providing a support person to him as a "vulnerable person" in police custody, it is relevant to set out the legislative basis for the duties of police to those in custody. Relevant provisions are contained in the Law Enforcement Powers and Responsibilities Act 2002 ("LEPR Act") and the Law Enforcement (Powers and Responsibilities) reg 2005 ("LEPR Regulation"). The LEPR Act provides: Page 6 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 112 Modification of application of Part to certain persons (Tribunal note -defined in cl 24 of LEPR Regulation as vulnerable persons) (cf Crimes Act 1900 , s 356A) (1) The regulations may make provision for or with respect to the modification of the application of this Part to: (a) persons under the age of 18 years, or (b) Aboriginal persons or Torres Strait Islanders, or (c) persons of non-English speaking background, or (d) persons who have a disability (whether physical, intellectual or otherwise). (2) Without limiting subs (1), the regulations may provide for an investigation period for a person or class of persons referred to in that subsection that is shorter than the period provided for by section 115. 122 Custody manager to caution, and give summary of Part to, detained person (Tribunal Note — Modified for vulnerable persons by s 112 above): (1) As soon as practicable after a person who is detained under this Pt (a "detained person") comes into custody at a police station or other place of detention, the custody manager for the person must orally and in writing: (a) caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence, and (b) give the person a summary of the provisions of this Part that is to include reference to the fact that the maximum investigation period may be extended beyond 4 hours by application made to an authorised officer and that the person, or the person's legal representative, may make representations to the authorised officer about the application. (2) The giving of a caution does not affect a requirement of any law that a person answer questions put by, or do things required by, a police officer. (3) After being given the information referred to in subs (1) orally and in writing, the person is to be requested to sign an acknowledgment that the information has been so given. 123 Right to communicate with friend, relative, guardian or independent person and Australian legal practitioner (Tribunal note — modified for vulnerable persons by s 112 above, and see below) (1) Before any investigative procedure in which a detained person is to participate starts, the custody manager for the person must inform the person orally and in writing that he or she may: (a) communicate, or attempt to communicate, with a friend, relative, guardian or independent person: (i) to inform that person of the detained person's whereabouts, and (ii) if the detained person wishes to do so, to ask the person communicated with to attend at the place where the person is being detained to enable the detained person to consult with the person communicated with, and (b) communicate, or attempt to communicate, with an Australian legal practitioner of the person's choice and ask that Australian legal practitioner to do either or both of the following: (i) attend at the place where the person is being detained to enable the person to consult with the Australian legal practitioner, (ii) be present during any such investigative procedure. (2) If the person wishes to make any communication referred to in subs (1), the custody manager must, as soon as practicable: (a) give the person reasonable facilities to enable the person to do so, and (b) allow the person to do so in circumstances in which, so far as is practicable, the communication will not be overheard. Page 7 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 (3) The custody manager must defer for a reasonable period any investigative procedure in which the person is to participate: (a) to allow the person to make, or attempt to make, a communication referred to in subs (1), and (b) if the person has asked any person so communicated with to attend at the place where the person is being detained: (i) to allow the person communicated with to arrive at that place, and (ii) to allow the person to consult with the person communicated with at that place. (4) If the person has asked a friend, relative, guardian or independent person communicated with to attend at the place where the person is being detained, the custody manager must allow the person to consult with the friend, relative, guardian or independent person in private and must provide reasonable facilities for that consultation. (5) If the person has asked an Australian legal practitioner communicated with to attend at the place where the person is being detained, the custody manager must: (a) allow the person to consult with the Australian legal practitioner in private and must provide reasonable facilities for that consultation, and (b) if the person has so requested, allow the Australian legal practitioner to be present during any such investigative procedure and to give advice to the person. (6) Anything said by the Australian legal practitioner during any such investigative procedure is to be recorded and form part of the formal record of the investigation. (7) An investigative procedure is not required to be deferred under subs (3) (b) (i) for more than 2 hours to allow a friend, relative, guardian, independent person or Australian legal practitioner that the person has communicated with to arrive at the place where the person is being detained. (8) An investigative procedure is not required to be deferred to allow the person to consult with a friend, relative, guardian, independent person or Australian legal practitioner who does not arrive at the place where the person is being detained within 2 hours after the person communicated with the friend, relative, guardian, independent person or Australian legal practitioner. This does not affect the requirement to allow an Australian legal practitioner to be present during an investigative procedure and to give advice to the person. (9) The duties of a custody manager under this section owed to a detained person who is not an Australian citizen or a permanent Australian resident are in addition to the duties of the custody manager owed to the person under section 124. (10) After being informed orally and in writing of his or her rights under this section, the person is to be requested to sign an acknowledgment that he or she has been so informed. [25] Section 129 of the LEPR Act provides for the right to medical attention and section 130 provides for "reasonable refreshments" to be given to a person in custody. The Law Enforcement (Powers and Responsibilities) reg 2005 ("LEPR Regulation") provides for the modification of the above provisions of the LEPR Act in relation to "vulnerable persons". LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) REG 2005 — REG 23 ("LEPR Regulation") Interpretation 23 Interpretation (1) In this Division: child" means a person who is under the age of 18 years. impaired intellectual functioning", in relation to a person, means: (a) a total or partial loss of the person's mental functions, or Page 8 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 (b) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction, or (c) a disorder, illness or disease that affects the person's thought processes, perceptions of reality, emotions or judgement, or that results in disturbed behaviour. Note: See cl 3 of Sch 2 for guidance to custody managers on whether para (a) or (b) applies to a person. impaired physical functioning", in relation to a person, means: (d) a total or partial loss of the person's bodily functions or of part of a person's body, or (e) a presence in the person's body of organisms causing or capable of causing disease or illness, or (f) a malfunction, malformation or disfigurement of part of the person's body. (2) For the purposes of this Division, a detained person who has impaired physical functioning is taken not to have impaired physical functioning if the custody manager for the person reasonably believes that the person's impairment is so minor that the person will not be significantly disadvantaged with respect to the person's participation in any investigative procedure (in comparison with members of the community generally). Vulnerable persons. 24 Vulnerable persons. (cf Crimes (Detention after Arrest) reg 1998 , cl 5) (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 Pt 9 of the Act to vulnerable persons is modified by this Division. 25 Custody manager to assist vulnerable person (cf Crimes (Detention after Arrest) reg 1998 , cl 20) The custody manager for a detained person who is a vulnerable person must, as far as practicable, assist the Page 9 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 person in exercising the person's rights under Pt 9 of the Act, including any right to make a telephone call to a legal practitioner, support person or other person. 26 Support person (cf Crimes (Detention after Arrest) reg 1998 , cl 4) 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 subpara (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 subpara (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. 27 Support person may be present during investigative procedure (cf Crimes (Detention after Arrest) reg 1998 , cl 21) (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 subcl (5) for more than 2 hours to allow a support person to arrive at the place of detention. Page 10 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 (7) A custody manager is not required to comply with subcll (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. 28 Relationship between entitlement to support persons and entitlement to consult (cf Crimes (Detention after Arrest) reg 1998 , cl 22) (1) A detained person who is a vulnerable person is entitled to a support person under cl 27 or to consult with a friend, relative, guardian or independent person under section 123 (4) of the Act, but not both. (2) However, a friend, relative, guardian or independent person of the detained person who, under section 123 (1) (a) (ii) of the Act, attends the place of detention is not prevented by this clause from acting as a support person if the detained person requests it. 34 Cautions. (cf Crimes (Detention after Arrest) reg 1998 , cl 29) (1) If a detained person who is a vulnerable person is given a caution, the custody manager or other person giving the caution must take appropriate steps to ensure that the detained person understands the caution. (2) If the detained person is given a caution in the absence of a support person, the caution must be given again in the presence of a support person, if one attends during the person's detention. (3) A reference in this clause to the giving of a caution is a reference to the giving of a caution that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. 26 Clause 30 of the LEPR Regulation sets out the role of a support person during an interview, and cl 32 requires the custody manager to contact the person responsible for certain vulnerable person's welfare. Custody Manager is defined in the LEPR Act as: custody manager" means the police officer having from time to time the responsibility for the care, control and safety of a person detained at a police station or other place of detention. 27 Clause 13 LEPR Regulation provides for appointment of custody managers: Appointment of custody managers for designated police stations and designated places of detention (cf Crimes (Detention after Arrest) reg 1998 , cl 8) The Commissioner of Police is to appoint one or more police officers ( "appointed custody managers") to act as custody managers at each designated police station and each designated place of detention. 28 It is clear from the legislation set out above that the LEPR Act provides for certain rights to be given to those in custody by custody managers, and these rights are modified for a "vulnerable person". The LEPR Regulation provides for a modification of the rights, and sets out those rights and the duties of the custody manager, in relation to a "vulnerable person". It is clear that the LEPR Regulation provides for an assessment to be made Page 11 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 by the custody manager as to whether the person in custody is a "vulnerable person". Clause 24 of the LEPR Regulation makes clear that the definition of "vulnerable person" does not include a person whom the custody manager reasonably believes is not a person falling within any of the categories set out in the definition in the LEPR Regulation. [29] The Tribunal's view of the operation of the LEPR Act and LEPR Regulation, imposing duties on custody managers, is consistent with the view of Justice Yates set out in Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 (20 July 2012) (refer paras 201 to 219). Justice Yates noted (at para 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. 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. 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. 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. Findings on facts in dispute [30] It is clear on the evidence of the applicant and the respondent that on 19 August 2009 there was an incident at the applicant's family home resulting in the applicant's brother, Julian, being injured and taken to hospital for treatment. The applicant does not dispute that Julian's finger was cut and required stitches. It is clear on the evidence also that there was more than one wound, police evidence details a wound on the leg and the hand, the applicant admits to an injury to the hand. The applicant's points of claim filed by his legal representatives referred to 2 wounds. [31] It is also not in dispute that the applicant was charged in relation to the incident: pursuant to section 33 (1) (a) of the Crimes Act 1900 with wound person with intent to cause grievous bodily harm domestic violence related; and pursuant to section 35 (4) of the Crimes Act 1900 — recklessly wound any other person domestic violence related. It is not in dispute that the court dealt with the charges by way of a dismissal pursuant to section 32 of the Mental Health (Forensics Procedures) Act 1990 on 16 August 2010. [32] What is in dispute is whether a caution was given to the applicant by police at the time of the arrest, and in a proper fashion at the police station, and whether the applicant was refused services by police. In his written statement the applicant states that after a call to the ambulance two police officers attended his home and the applicant showed them in. Constable Bayer states that when he and Constable Banner arrived outside the applicant's premises the applicant was waiving at them to come inside. Under cross-examination the applicant agreed that he waived to the police on arrival but did not agree he invited them in. He agreed he did not tell police of any depression or that he had Asperger's syndrome. The two police entered through the front door of the house. On arrival they saw the applicant's brother, Julian, sitting on the first step to a flight of stairs leading to the second level of the home, and there was a large amount of blood on the floor in front of him. After a brief conversation with Julian about his injury Constable Bayer saw the applicant walking into the family room/lounge room area of the house on the same level. He followed the applicant and told him to sit on a stool and asked him where the weapon was. Both Constable Bayer and Constable Banner say the applicant pointed to the kitchen area in the direction of the sinks. Constable Banner says that she walked with the applicant into the kitchen where he pointed out a knife in the kitchen sink. After requesting him to sit down, police handcuffed the applicant. [33] Constable Banner walked towards Julian to have a conversation with him and Constable Bayad remained with the applicant. Constable Banner records the conversation with Julian in her statement (noting Julian originally stated he stabbed himself, and that he gave a description of the fight commencing with the words "Adrian has Page 12 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 depression and was upstairs in bed". He describes their disagreement, and the applicant wounding him with a knife). In her statement of 16 August 2012 Constable Banner states that she does not recall whether or not she relayed the information about depression to other police officers. [34] Constable Bayer states that at 12:27 pm he approached the applicant, introduced himself, told the applicant he was under arrest for a domestic dispute/wounding involving his brother and stated "you do not have to say or do anything if you do not want to. Do you understand that.". He says that the applicant answered "yeah". Constable Bayer says he told the applicant "I will record what you say or do I can use this recording in court. Do you understand that?" And the applicant and said "yeah". Constable Bayer then gave a version of what the applicant told him had occurred, and Constable Bayer recorded this conversation in his notebook. Under cross-examination, the conversation in the notebook was put to the applicant who stated that it sounded familiar but he was not sure if he would agree with the contents. He did however agree that he gave information to Constable Bayer voluntarily. [35] The applicant in his written statement states that Constable Bayer had introduced himself and that he(the applicant) paced around the foyer while they attended to Julian. He states Constable Bayer said to him "sit down" and he sat down and was handcuffed. He says Constable Bayer then asked him where the knife was and he walked to the kitchen and pointed to where the knife was located in the sink. He states Constable Bayer then pulled his right arm, he felt frightened of what might occur. Constable Bayer disputes that this occurred and he was not challenged on this part of his evidence by the applicant's legal representative during cross examination, nor were the applicant's allegations specifically put to Constable Bayer during cross examination. The applicant states that he does not recall being cautioned by anyone and remained on a chair. The applicant further states that other police arrived, started asking him questions, he does not recall specifics, and does not recall ever being cautioned by the police officers prior to being questioned at any time. I felt very scared and nervous and agreed with everything the police suggested. I was fearful that I would be hurt again if I did not comply with the police and the questioning. I did not know that I did not have to answer the questions. At no stage was I asked by the police officers if I had depression or if I needed a support person. I made admissions under duress. They were suggested to me by police and I agreed. [36] Constable Bayer in his statement of 16 August 2012 refers to the applicant's statement and denies suggesting any version of events to the applicant. At no time during his attendance at the applicant's home did he become aware that the applicant had a mental illness. Constable Bayer says that when senior police arrived, shortly after the arrival of the ambulance, he was asked to watch the applicant and did so, and shortly thereafter, after searching the applicant in the usual manner, he escorted him to the police vehicle for transport to the police station. He saw Detective Senior Constable Gardiner and another officer had left in the vehicle with the applicant in custody. A short time after all other police at the scene left with the exception of Constable Banner and Constable Bayer. A few hours later Detective Senior Constable Bracknell arrived with Senior Constable Wilson who was the crime scene officer. As Constables Bayer and Banner remained for several hours at the applicant's house they were not present at the police station when the applicant' s parents attended. [37] In the statement of Detective Senior Constable Wilkins ("Detective Willkins") of 16 September 2009, which attaches the officer's notebook record, he states that on arriving with Detective Alessi, Detective Last, Detective Gardiner, he entered the front door. He observed that Julian was bleeding from his left hand and left leg and ambulance officers were attending to Julian at that stage. He says he approached the applicant, who was seated and introduced himself and asked "is this your parent's house?". The applicant replied "yes". He asked "what is your dad's name?" And the applicant replied "I don't see how that is relevant". Detective Wilkins then said "as you know you don't have to say anything if you do not want to" and The applicant replied "Gianni". There was some further conversation about the whereabouts of his parents and other family members. In his oral evidence Detective Wilkins stated that if he had been told by another police officer that the applicant was depressed he would have decided he was a vulnerable person. He recorded Asperger's syndrome on the application for the apprehended violence order because he had been advised of this by then by the applicant's parents. It was when he was en route to the police station that Detective Wilkins made a call to the applicant's father, Gianni Mariani. [38] At the police station Detective Wilkins states that he went to the charge room where the accused was in the company of his father, Gianni Mariani, at the time. He recorded a conversation in his notebook whereby he stated "do you agree that when you were arrested that you were told by police that you did not have to say or do anything if you did not want to?" The applicant responded "I don't agree". Detective Wilson records then asking the applicant if he wished to sit to participate in an interview and that the applicant asked "with whom?" "Myself and Detective Last" and the applicant said "No" and declined to say anything further or to sign the notebook entry of the conversation. Wilkins states that he and Detective Last then left the charge room. [39] Detective Wilkins could not recall if he told the custody manager that the applicant suffered Asperger's syndrome — he believed the custody manager knew, because when he went into the dock area he observed that the applicant had a support person sitting there with him in the dock, being his father. When Detective Wilkins Page 13 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 observed that there was a support person present with the applicant in the dock he believed that the custody manager had been advised that the applicant had Asperger's syndrome. When he offered the applicant the opportunity to participate in a record of interview he did not offer a support person because the support person was already present as his father was sitting beside him in the dock. When he offered the interview and the applicant asked "with whom" Detective Wilkins considered he was asking who was doing the interview and so he said that it would be himself and Detective Last. [40] Detective Last said he was not advised by Constable Banner of any depression although he was told of Asperger's syndrome by the applicant's parents at the police station. Detective Last could not recall who reported Asperger's syndrome to the custody officer but said one of us (himself or Wilkins) would have. When asking if the applicant wished to participate in a record of interview Detective Last did not offer the applicant a support person because he had one sitting there with him in the dock, being his father. [41] Because the applicant's case suggested that police had somehow been improper in refusing the applicant bail and in laying serious charges, and applying for an apprehended violence order, and that all these matters caused the applicant distress (such distress being part of the applicant's claim for damages) some evidence was presented in the proceedings to indicate what occurred between Julian and the applicant on 19 August 2009. The tribunal does not consider for the purpose of determining this matter that it is necessary to go into all of that detail. It is clear on the evidence before the tribunal that it reasonably appeared to the police that there had been a domestic violence incident between the applicant and his brother. During the incident the applicant's brother, Julian, had been injured such injuries requiring hospital treatment, a knife had been used by the applicant to cause the injuries to his brother. The tribunal is satisfied on the evidence presented overall in this matter that the police had reasonable grounds for considering that a serious offence of violence had occurred, in a domestic context, and as such had reasonable grounds for arresting the applicant, and for charging the applicant with the criminal offences. Once a criminal charge is laid it is required to be determined by a court and is subject to judicial oversight. The respondent's case was that it was consistent with the usual police procedure when there is a domestic violence incident and injury sustained by a victim, that an apprehended violence order be applied for to protect a victim. [42] The other major area of dispute between the parties was what occurred at the police station in relation to treatment of the applicant by police. The applicant states that he was taken to Castle Hill police station in a police vehicle and this was consistent with police evidence. The applicant states that when he arrived at the police station he was taken to the custody manager, Sergeant Hunt. One of the questions she asked me was "do you have any mental illness?" I recall I shook my head. I was in shock and overwhelmed. I was not thinking clearly. I recall that Sergeant Hunt did not ask if I had depression. She did not mention anything about a support person or ask me if I wanted a support person. She said words to the effect "I am now going to caution you about your rights". She cautioned me, but I was not in a state of mind able to comprehend what she was saying, and I do not remember specifics. I was placed in a cell by myself. I was scared and cold. After some time Hunt brought my mother into the cell. Hunt left. My mother gave me a hug and a blanket. She stayed with me for a short while and then left. Sometime later, my father was shown into the cell. We had a short conversation. To the best of my recollection I recall a conversation with words to the following effect: He said "Have you spoken to the police?" I said: "yes, what is going to happen now?" He said: "don't say anything to the police." [43] Under cross-examination the applicant agreed that on arrival at the police station at about 1:15 pm he was taken to the custody manager, Sergeant Hunt. He agreed she was polite and agreed she asked him questions. He recalls a questionnaire being administered but does not recall giving the answers which are recorded. [44] At para 21 of his statement the applicant details the conversation in the charge room with Wilkins and Last which is largely consistent with that given by Detective Wilkins. The applicant does not mention that at the time of this conversation his father was present with him. He says that at no time did any police officer ask if he wanted a support person or if he wanted his father or mother to be a support person for him. At no time was the caution read to him a second time in front of a support person or his parents. [45] The applicant under cross examination recalled being cautioned by Sergeant Hunt and says in relation to the words "keep my mouth shut" that this was a question which he asked "should I keep my mouth shut" and that Sergeant Hunt said nothing. Under cross examination the contents of the Sergeant Hunt's statement at para 16 were put to the applicant and he said he did not recall being advised by Sergeant Hunt of the right to a support person. He agreed that it was his signature on Annex KH 4 but cannot now recall the particular document. He recalls reading a document given to him by Sergeant Hunt, he is not sure it is KH 4, he accepts he signed that document, but does not believe he understood at the time. It was put to him that he could have asked a question if he did not understand and he said that was not accurate. [46] The applicant recalled his mother visiting him in the cells but not the details of the visit, he does not recall stating to his mother "I've been given this piece of paper" . He recalls that Sergeant Hunt got a blanket for him, and gave it to his mother to give to him, because he said he was cold. He said he was with his mother in the cell in the Page 14 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 absence of Sergeant Hunt for a period of time. He has a clear recollection of his father telling him "don't say anything to the police". It was put to the applicant that he followed that advice and he stated "yes I suppose I did". He does not recall telling his father that he received a document from the police. When asked he should disclose his medical condition, the applicant responded "It wasn't apparent to me at the time that it was relevant … . I wasn't concerned at the time." He agreed his father was present when he was asked whether he wished to participate in a record of interview. It was put to the applicant that he was not treated cruelly while at the police station and he said that that would be accurate and agreed, based on what he can recall, that he was not mistreated [47] Sergeant Hunt, custody manager, in her written and oral evidence said that she had read the affidavits of the applicant and his parents. On 19 August 2009 she was the custody manager at the police station. She notes her role as custody manager is to ensure that all policies and procedures are complied with, as well as relevant legislation, when someone is arrested. She ensures the arrested person's rights are looked after. She attached to her affidavit relevant paperwork records before her at the time, which included the Field Arrest Form. She noted that she conducted an assessment to determine whether or not, in her view, the applicant was a vulnerable person, in accordance with the Criminal Procedure Act 1986 and also the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRAct). She notes that a copy of the caution and summary which she administered to the applicant in accordance with Pt 9 of LEPRAct is annexed to her statement and marked KH4. She noted the handwritten words on the document "keep my mouth shut" and said these words were the applicant's response to the caution she administered, confirming that he understood the caution she had provided to him. She stated that she detailed his rights to contact a lawyer or a friend or relative or Guardian . She further noted that she advised that if he was, amongst other things, intellectually or physically impaired, he could have a support person with him while in police custody and that the police would help get the support person if he asked for one. [48] She generally records any response by a detained person to her questions on the Pt 9 form and has recorded no response to this part of her advice to the applicant, indicating to her that he did not respond. She states that at no time did the applicant indicate to her that he should have been considered a vulnerable person or that he was someone who was intellectually impaired and required a support person. She considered that during the course of reading the Pt 9 summary to the applicant that she put the applicant on notice that he was entitled to have a support person if he was a vulnerable person. The Pt 9 summary which she read specifically advises of the right of a vulnerable person to a support person. She states that during the course of reading out the Pt 9 summary she regularly said words to the effect of "do you understand?" To which he would respond on each occasion "yes". She noted that both her signature and the applicant's signature are on the bottom of the form. [49] She states that no stage did it become clear to her that the applicant was, or should have been treated as, a vulnerable person. She does not recall at any point being advised he suffered from depression or Asperger's syndrome. She states she would recall being advised of Asperger's syndrome, as she has a nephew similarly diagnosed, and therefore due to the personal connection would have taken note. She states that while completing the Pt 9 summary and the custody management report questionnaire, Mr Mariani's parents attended the police station. First his mother entered the room and later his father entered the room. [50] After going through the Pt 9 summary and custody management report assessment she placed Mr Mariani in the dock and his father went into the dock with him for most, if not all, of the time that Mr Mariani was in the dock. At some time the applicant mentioned he was feeling dizzy and Sergeant Hunt states that she immediately notified an ambulance and ambulance officers attended the Police Station and attended to the applicant. She also supplied the applicant with a blanket. She recalled that the applicant said to her words to the effect of "can I call a lawyer" and she said yes. [51] She states her usual practice in these circumstances is to give the person in custody a copy of the phone book and let them select a solicitor, however in this instance, instead of following the usual practice she facilitated a call to legal aid for the applicant in order to assist him. At a later stage he indicated he was hungry and she arranged a car crew to attend McDonald's to pick up a meal for him and that was brought to him in custody. Sergeant Hunt states. during the time Mr Mariani was in custody, I took steps to ensure that he received some assistance beyond that we would normally provide to a person in custody. I facilitated a call to legal aid rather than requiring that Mr Mariani make his own arrangements to obtain legal advice, I permitted him to have his father with him in the dock the whole time, I organised a meal for him when he was hungry around 4 pm, which is outside the usual arrangements made to provide meals to persons in custody. I stayed with Mr Mariani at all times while he was in custody. I spent proximally four hours with Mr Mariani and I did not leave the custody area except, for example, to make very brief enquiries … .At all times I checked that Mr Mariani was okay and that his parents were providing him with the support that he required. I've read para 37 of Mr Mariani's statement and deny that he was mistreated in any way during the period he was in custody. [52] She further states she did ask the applicant "do you have any other serious medical or mental problems?" as this is one of the questions she is required to ask as part of the custody management record, it is recorded on Page 15 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 Annex KH 2, at (question (d) p 2) that he answered in the negative. She said she did not ask the applicant specifically if he had depression because she had already asked him if he had any other serious medical or mental problems and he had answered that in the negative. Annexure KH 2 to Sergeant Hunt's affidavit is the custody management record, which records the applicant as arriving at the police station at 13.13 on 19 August 2009. The custody management record is a record of questions asked of the applicant and answers given, and procedures in custody, as well as a record of observations made of the person in custody by the custody manager. In the detainee inspection/assessment record part of the form it is also noted: 14–46 "seated in the dock with his father" and at 15.37 "remains seated in the dock with his father for support. Nil requests or complaints at that this time". Under the section "Visitor record" of KH2 visits are recorded as — at 14.09 "Kim Mariani, relative" and 14.36 Gianni Mariani, relative" In the Caution/Summary" part of the custody management form it is recorded that at 13.24 "Caution read — Y" "Copy given — Y" and there is a record that at 13.46 ambulance contacted and requested to attend due to complaint of dizziness. The custody management record details the visual assessment made by Sergeant Hunt (page 2 KH2), and records the initial inspection frequency as 30 mins, time/date 13.36 19/08/2009. The visual inspection record includes additional comments ("Nil complaint in relation to health, Nil adverse detected"). The questionnaire administered by the custody manager and the applicant's answers are recorded at pp 2 and 3 of KH2 and Sergeant Hunt has added an additional comment: "Appears quite distressed in relation to the condition of his brother who is the victim in this matter". [53] She stated that she assessed that the applicant was not a vulnerable person based on the Field Arrest Form, the custody management record and the applicant's answers. She read aloud the Pt 9 caution and statement of rights. She checked at all times that the applicant understood what she was saying. She stated that if she was told that the applicant had Asperger's syndrome she may have changed her view and decided that he was a vulnerable person. The only change to the actions she had taken would have been to inform the applicant's father of the role of a support person. However, she stated that in practice she gave the applicant a support person — his father was permitted to be present with him in the dock. She talked of feeling sorry for the applicant as he was a young person for the first time in custody who had a fight with his brother at home. For this reason she allowed him the comfort of his parents while in custody, including a visit by his mother to the cells and the company of his father whilst in the dock, which is something she is not obliged to do and not her normal practice. [54] The applicant's father, Gianni Mariani, gave written evidence and oral evidence during the hearing. He states that on 19 August 2009 at approximately 12:30 pm he was at work when he received a phone call from Detective Alessi advising of the incident at his home, that one son had been arrested and the other son was being taken to hospital. He states he arrived at the police station at approximately 1:30 pm and was shown to an interview room adjacent to the reception counter. He met Detective Alessi and Detective Last and Detective Wilkins. He was asked whether he wanted to make a statement and said he did not want say anything, except he wanted police to make sure that they took into account that Adrian suffers from autism, a form of autism called Asperger's He states he advised police that the applicant had seen a psychiatrist and psychologist previously but was not currently taking medication or seeing a therapist. He states police said "it doesn't matter then" … "If no medication is needed then your son's Asperger's condition is not relevant. ..Mental conditions make no difference to the law … .Mental disabilities make no difference to the police or law" Gianni Mariani gave evidence of a further conversation which occurred between police and his wife, Kim Mariani, in his presence: that police said, when Kim Mariani mentioned Asperger's "it makes no difference … Is Adrian seeing a psychologist? … It makes no difference to police or the law … .That's right, mental disabilities don't matter to the police or the law". [55] Mr Gianni Mariani states that he was taken to see Adrian in the holding cell and was introduced to the custody manager. He was given a piece of paper by the custody manager and the custody manager said "this document describes Adrian's rights in custody. Adrian has a copy with him". Mr Mariani said he read the document, it described the right to say nothing and to request representation. He returned the document to the custody manager as he was told Adrian already had a copy. He was present when The applicant was asked for an interview and refused to be interviewed. Mr Gianni Mariani states that at no time was he asked if he would like to be a support person for Adrian or informed about the role of a support person by any police officer, nor was he asked to review custody records. He recalls receiving a phone call from a male police officer advising him that the applicant was seeking legal advice regarding the sampling of DNA evidence, and he advised the police officer to get Adrian to call legal aid. He states that the police officer said he would not be entitled to legal aid if he worked and it would be a waste of time. [56] Ms Kim Mariani, mother, stated under cross-examination that she had asked police whether Julian was going to be charged because she knew that Adrian and Julian had been fighting. She agreed that she assumed the Julian had done something wrong. She adhered to the version of the conversation with the police which was recorded in her written statement. She further agreed that she did not include all conversations and events in her statement. She could not recall the length of time her husband was with Adrian in the cells as she was making phone calls to see where Adrian could live if he could not return home. She recalled that her husband told her that he advised Adrian not to make any statements to the police, he told her something to the effect that he told Adrian to refuse an Page 16 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 interview. It was clear to the tribunal that Ms Kim Mariani was very distressed while at the police station, and any inconsistencies in her written and oral versions would in the tribunal's view be due to the significant level of distress. Indeed Ms Kim Mariani spoke of her distress in her evidence and the tribunal has no reason to reject this explanation. It was conceded in part under cross-examination that her recall of events was impaired by her level of distress and the tribunal considers this is very understandable but also considers that her recall is less reliable for this reason. [57] The conversation as stated by Gianni Mariani and Kim Mariani as occurring at the police station were specifically put to Detective Wilkins and Detective Last, and in their written statements and in oral evidence both officers denied the conversations as stated by Mr Gianni Mariani and Ms Kim Mariani. They specifically denied stating that mental illness was not important to police or the law. [58] It is the evidence of Mr Gianni Mariani stated that since advice received from a lawyer when he was at school, many years ago, he had been aware that one should not speak to police, or should be careful of what one says to police. He agrees that for this reason it was one of the first things he said to the applicant when he saw him in the cells, to not say anything to police. Under cross-examination Mr Gianni Mariani adhered to the version of conversations with the police that he had put in his written statements. He noted that he made notes of what occurred at the police station some 5 to 6 months after the events, and he consulted those notes in making his statement for the Anti-Discrimination Board. When making his first statement, which was to the Anti-Discrimination Board, he also referred to the police brief of evidence in the criminal proceedings which helped him recall names. He maintained under cross-examination that his memory of events was vivid. He stated that he made a phone call to Julian at the hospital to find out that he was all right. He thought a lot about things on the way that the police station which took about one hour of travel. It was put to Mr Gianni Mariani that his statements, being his written statements, were a mixture of what he believed happened and what may have happened and he denied that this was the case. [59] Mr Gianni Mariani was questioned under cross-examination about whether he believed that police officers should excuse the applicant's conduct. Mr Gianni Mariani said words to the effect of "I was hoping for more understanding, he didn't have it." Under cross-examination his statements about Julian bullying Adrian were noted and he was asked whether he believed Julian had caused the conflict. Mr Gianni Mariani said "I had a conversation with Julian just four weeks before that that he should not bully Adrian, so he does bear some responsibility." [60] In relation to the disputed conversations occurring between Detectives Wilkins and Last and the applicant's parents, at the police station, the tribunal finds as follows. Mr Gianni Mariani and Ms Kim Mariani give similar versions as to the statements said by the police to the effect that mental illness does not matter to the police or the law. Detectives Wilkins and Last deny that they said the statements. In the tribunal's view the relevance of whether the words were said is probably, in the context of the applicant's case, that it might suggest the police disregarded the rights of a mentally impaired or mentally ill person in their custody. Given that this is part of the applicant's case then the tribunal needs to decide whether these words were said by the police. As noted above Ms Kim Mariani's recollection was impaired by her distress at the time. Mr Gianni Mariani says his memory is vivid. The police did not take contemporaneous notes of the conversations with the applicant's parents because they did not consider that there were required to do so at the time. The applicant's parents also did not take contemporaneous notes although Mr Gianni Mariani made some personal note some 5 to 6 months after the events. [61] Where there is a conflict in the evidence the tribunal must have some basis for preferring the evidence of one party, or one version of events, over the other. The evidence of Detective Last and Detective Wilson was consistent. Both were subject to cross-examination and their evidence remained consistent and their credibility was not impugned during cross-examination. Ms Kim Mariani's evidence indicated that her recall was affected by her distress at that time as there were a number of matters about which she had did not have recall, although she asserted that she did have recall of the disputed conversations with Detective Last and Detective Wilkins. Mr Gianni Mariani's evidence remained largely consistent and his credit was not impugned under cross-examination. The tribunal accordingly has two conflicting versions of the conversations. However, given that both versions were adhered to under cross-examination, and the witnesses' credit was not impugned under cross-examination, the tribunal has no real basis for preferring the account of one witness over the differing accounts of other witnesses. (Whilst the tribunal found the reliability of the evidence of Ms Kim Mariani was effected by her distress at the time, even if the tribunal accepted that her evidence supported Mr Gianni Mariani, there are still two conflicting versions, and the conflicting version of Detectives Wilkins and Last were not shown to lack credibility). The tribunal has no basis for preferring the applicant's version over the respondent's version. Accordingly the tribunal cannot be satisfied that the conversations detailed by Mr Gianni Mariani and Ms Kim Mariani with Detective Wilkins and Detective Last occurred in the way Mr and Mrs Mariani stated they occurred. Their accounts are disputed by two other witnesses, the tribunal has no basis for discounting the version of the two other witnesses, Detective Last and Detective Wilkins, and accordingly tribunal cannot be satisfied that Mr Gianni Mariani's version (and Ms Kim Mariani's version), which is contested, is established, on the balance of probabilities. Page 17 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 [62] In relation to whether the applicant was cautioned the tribunal found the evidence of Constable Bayer to be credible. He appeared to the tribunal to be responsive, in cross-examination, to questions asked and the tribunal found him to be credible. He gave clear evidence of giving the applicant a caution and the applicant does not contest this, his evidence is that he does not recall the caution. Therefore while the applicant does not concede the caution was given, he also does not contest it his evidence is that he does not recall the caution. Constable Bayer's evidence that the caution was given was clear and credible, and it was consistent with his notebook entry, and the tribunal accepts his evidence that he cautioned the applicant when he arrested him. [63] The tribunal does not accept the applicant's evidence that the police mistreated him at his house, as this is not consistent with other evidence. The applicant says that he was scared and gave answers to questions as suggested to him by police. However this is not consistent with the conversations recorded by police, between police and the applicant, at the scene. The applicant agreed that he did say, when asked if it was his father's house, "I don't see how that is relevant" — in the tribunal's view this is not the answer of someone who is only answering what is suggested to him by police. [64] When at the police station the applicant was taken, as is appropriate, straight to the care of the custody manager and the applicant agreed that the custody manager was polite. The tribunal finds that the custody manager complied with her obligations under Pt 9 of the LEPR Act. The Tribunal finds that she gave the applicant a caution and checked that the applicant understood the caution by asking him questions and eliciting positive answers from the applicant ("Do you understand?" "yes"). The tribunal accepts the custody manager's evidence that he was told that certain persons were vulnerable persons and entitled to a support person, and that the applicant did not request a support person at any time. The applicant agrees that he did not do so because he did not consider it was relevant at the time. The evidence of Gianni Mariani indicates that the custody officer gave him a piece of paper indicating the caution given to the applicant and the applicant's rights in custody. [65] Under cross examination Sergeant Hunt was asked about her knowledge of the custody manager's legal obligations and she demonstrated a very clear knowledge of the legislation and duties. Sergeant Hunt told the tribunal of her view as custody manager that people in custody should be treated with respect. She spoke of the importance of maintaining independence from investigating police officers, and expressed a commitment to ensuring that the rights of those in custody are upheld, and this expressed view was consistent with her clearly demonstrated knowledge of the legal obligations and duties of a custody manager. In the tribunal's view she demonstrated a commitment to diligently performing the role of custody manager and the tribunal found her to be a credible and impressive witness. [66] The tribunal finds on the evidence of Sergeant Hunt, and the evidence overall in this matter, that Sergeant Hunt conducted an assessment of the applicant under the LEPR Act and that such an assessment was conducted appropriately and in accordance with the legal requirements. The tribunal finds that upon making such assessment Sergeant Hunt formed a view on reasonable grounds that the applicant was not a vulnerable person. [67] Annexure KH4 to Sergeant Hunt's Statement is the from containing the written caution and summary of Pt 9 LEPR Act, which Sergeant Hunt states was given to the applicant. Sergeant Hunt's evidence was not challenged in cross-examination and it was not put to her that any of her records were not correct. The tribunal concludes that the records are accurate on the evidence in this matter. The tribunal further concludes that the applicant was given the written Pt 9 LEPR Act summary and caution (KH4) and he showed this "piece of paper" to his mother when she visited him in the cells and also his father was given a copy by Sergeant Hunt. The evidence of Mr Gianni Mariani is that he read the form and returned it to Sergeant Hunt, noting it advised of the right to not say anything and to legal representation. The applicant and his parents thought the piece of paper they recalled looked different from KH4 but on the evidence the tribunal is satisfied that it was KH4. Mr Gianni Mariani therefore had read the form which also advises of the right of a vulnerable person to a support person but did not refer in his evidence to noting that advice. He did not tell Sergeant Hunt during the hour or so that he was seated with the applicant in the dock that his son had any special needs, or that he had any medical, mental health or psychological condition. Sergeant Hunt did not formally orally advise Mr Gianni Mariani of the right of a vulnerable person to a support person, nor read the caution a second time to the applicant in the presence of a support person; and the tribunal finds that this was no breach of a custody manager's obligations given she concluded on reasonable grounds, after a proper assessment, that the applicant was not a vulnerable person as defined in the LEPR Regulation. Sergeant Hunt did permit the applicant's father to provide support by remaining with the applicant in the dock for at least one hour, and by providing a copy of the Pt 9 Caution and Summary (KH4) to the applicant's father. [68] On the evidence the tribunal finds that police refused bail on 19 August 2009 and the applicant was subsequently granted conditional bail by the court when presented the next day. The Magistrate on that date also made an AVO, a result of which was that the applicant resided with his grandmother. The tribunal notes that the applicant was charged with a serious offence, in the context of domestic violence, wounding his brother with a knife, and that it was a reasonable decision of the police to refuse bail and present the applicant before a Magistrate as soon as reasonably practicable. It was also a reasonable police decision to apply for an apprehended violence Page 18 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 order where the facts were that a domestic violence offence had occurred, where one brother had wounded another brother with a knife. [69] When the police attended the applicant's premises in relation to a reported breach of bail they were acting in the course of their normal duties. After speaking with the applicant they did not detain him but went away to check information and then contacted the applicant to state that his information was confirmed and it was accepted that his bail had been varied and he was no longer required to report to police on bail. The reporting conditions were initially made were made by the court and as such were bail conditions made pursuant to a judicial decision by a Local court Magistrate under the Bail Act. [70] The evidence indicates that after police visited the applicant's home in relation to an alleged breach of bail they made a COPS entry about the applicant being a vulnerable person. This was a record in the police database. Psychological expert evidence [71] The evidence of Consultant Forensic Psychologist, Mr Watson-Munro, was obtained by the applicant's lawyers to address the applicant's pain and suffering in relation to the applicant's damages for psychological injury. Mr Watson-Munro was asked to address potential damages arising from the reported refusal of services including being placed on an AVO, being placed on bail with reporting conditions, amongst other matters. The applicant's legal representatives stated that this expert was asked to address issues of short and long-term pain and suffering caused by the failure to provide services by the respondent and asked to consider four periods. The letter of instruction stated: "We suggest that the denial of police to consider Asperger's as a mental disability, as disclosed in the sworn evidence of Gianni and Kim Mariani, may be a significant contributor to his pain and suffering." [72] In his written report of 27 August 2012 Mr Watson-Munro details his opinion. Mr Watson-Munro notes that the episode leading to charging, an AVO, reporting conditions, and eventual dismissal of the proceedings under section 32 of the Mental Health (Forensic Procedures) Act 1990 was of "protracted" duration leading to the development of depression, anxiety and overall psychological pain. The applicant was reported to be accompanied to the interview with Mr Watson-Munro by his father. Mr Watson-Munro noted distress between the charge being laid and the court's final disposition. After receiving the section 32 O it was reported that the applicant saw Prof Kennet for about six months for treatment of post-dramatic stress disorder and Asperger's It is noted that the applicant was progressing well in the third year of his university studies and doing well with academic performance. "He is typically receiving marks of credit and distinction level in his main areas of interest". In relation to Asperger's diagnosis Mr Watson-Munro says "this evidently occurred in 1999. Your client evidently was referred to a psychiatrist in San Jose, Dr Rebecca Powers. … Prior to the Asperger's diagnosis he had been diagnosed with Attention Deficit Disorder and prescribed Ritalin … . had.delayed speech … Required speech therapy … . Mr Mariani stated that he had to learn to recognise body language cues such as the smile which in the past meant nothing to him". [73] Mr Watson-Munro refers to an academic article and opines that the study is consistent with Mr Mariani's claim that "the brief time in custody followed by the requirement that he live away from the family had a significant impact upon his mood." On review of a report provided to Mr Watson-Munro prepared for the section 32 application, he notes the report details the history and "describes his frustration referable to multiple diagnoses of his problems before the correct diagnosis was made in 1999". In the opinion section of the report Mr Watson-Munro states: Mr Mariani presents as a cooperative though clearly depressed and anxious man who has been diagnosed with Asperger's syndrome … .."the arrest and its sequelae inclusive of the court case which involved protracted proceedings had a significant impact upon Mr Mariani which was compounded by his Asperger's condition" . [In para 4 of the opinion section of his report Mr Watson-Munrostates] "What occurred on 19 August 2009 and subsequent to this referrable to Mr Mariani's arrest, detention on bail and stringent conditions attached to his release to Bail that he has developed an Anxiety Disorder … exacerbated by his Asperger's condition … His capacity to perform academically has not been compromised as noted in his high level of achievement at [University]".. [74] In his oral evidence Mr Watson-Munro stated that he was not putting himself forward as an expert on Asperger's syndrome and was reliant on the reports made to him about the diagnosis in 1999. He believed that the post traumatic stress disorder was arising from the wounding incident and the anxiety was not entirely referable to time spent in custody. Treatment by Prof Kennett was seen by Mr Watson-Munro as part of the response to the court order. He stated that Asperger's syndrome is usually a lifelong condition and the applicant appears to have responded well to previous treatment. He confirmed that he was asked to consider short and long-term pain and suffering in the context of the apprehended violence order and all of the legal proceedings. He said the event itself was traumatic and the delay in finalisation of the proceedings was traumatic as well as the AVO and living away from home. He was not given any of the police documentation in preparing his report. [75] It was put to Mr Watson-Munro in cross-examination that he accepted the diagnosis of Asperger's made in 1999. He agreed and said it was not an area of his expertise. He added that it was a rare condition and there was a Page 19 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 need for a clear diagnosis from a qualified practitioner. He has not seen an updated assessment of the diagnosis, and it was also not clear to him that Prof Kennett (whose report he considered) had performed any testing to confirm the diagnosis. In relation to all the documentation before him supplied by the applicant's lawyers (which included the medical reports as listed in his report) Mr Watson-Munro was of the opinion that it seemed that the authors of those reports relied on the original 1999 diagnosis. He was questioned about whether provision of a support person, assuming same was refused, would have led to any different outcome. Mr Watson-Munro said that he could hypothesise that a support person probably would have made a difference but could not say that it would, noting that the applicant is an intelligent person and that litigation stress has affected his psychological outcome. [76] The evidence also indicates to the tribunal that in 2009 the applicant was receiving no treatment for his Asperger's syndrome, he had not, on the evidence before the tribunal, had any recent assessment by a person qualified to assess Asperger's syndrome, and he was not on any medication. DISCUSSION AND FINDINGS ON LAW AND EVIDENCE Disability [77] As the applicant's case is that he was discriminated against on the grounds of his disability, the applicant must first establish on the evidence that he has a disability, or was considered by the respondent to have such a disability. The applicant has asserted that he has the disability of autism and also of depression. [78] Section 4(e) of the Act provides that disability includes: (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. [79] The tribunal considers that both depression and Asperger's syndrome would be a disability as defined in the AD Act. The applicant bears the onus of proving on the evidence, on the balance of probabilities, that he has a disability as defined. In relation to depression the only evidence advanced by the applicant is that his brother, Julian, told Constable Banner that he had depression. The report of Mr Watson-Munro did not provide evidence that the applicant had depression at the time of the incident in August 2009. The report of Mr Watson-Munro is a report as to anxiety disorder/post-traumatic stress disorder/depression arising from the sequelae of events from the traumatic incident of injuring his brother through to custody, through to bail conditions and AVO and separation from family and the length of time that it took for the court to dispose of the charges, so that there was a significant period of time where his future was uncertain due to the seriousness of the charges and the possible penalty that could apply. The purpose of the report by Mr Watson-Munro was to assess psychological damages in the context of a claim of damages by the applicant, and he was asked to address specific time periods and events. His assessment and report has a focus on the effect of the events, and not whether in August 2009 the applicant was suffering a mental health condition of depression. There is no contemporaneous medical evidence evidencing this, and the tribunal finds that the applicant has not established, on the evidence, on the balance of probabilities, that in August 2009 he suffered the mental health condition of depression. Therefore the tribunal is not satisfied that he was suffering a disability of depression at that time. [80] In relation to Asperger's syndrome the evidence is that when the applicant was a child at school in the USA, in 1999, a diagnosis was made in the context of his educational outcomes. There is no evidence of any recent assessment, nor even any evidence before the tribunal of any assessment/testing and diagnosis of Asperger's syndrome since 1999. Mr Watson-Munro's view is that it is a rare condition requiring specialist assessment. Mr Watson-Munro's view is that none of the reports provided to him by the applicant's solicitors as background for the making of his report, made an assessment or tested whether the applicant currently had the condition, all reports accepted the previous diagnosis of 1999. The tribunal considers that the lack of evidence of recent assessment and diagnosis, or any assessment/diagnosis since 1999, means that the applicant has not provided evidence to the tribunal which allows the tribunal to conclude that he suffers Asperger's syndrome and has that disability. Because the applicant has not established disability on the evidence, then his application must fail. However, in case the tribunal is wrong in this conclusion, on the basis that it is considered sufficient that there was a previous diagnosis of a condition which is considered to be life long, the tribunal has gone on to consider the applicant's case overall. Services [81] The applicant must establish on the evidence and according to law that the respondent refused the applicant a service, or discriminated on the grounds of the applicant's disability in the terms/conditions on which the respondent provided a service to the applicant. For the purposes of the following analysis the tribunal will accept the presence of the disability of Asperger's syndrome. As discussed above the tribunal is not satisfied that depression was established on the evidence. The tribunal in determining the issue of services has carefully considered the authorities. Page 20 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 [82] In Commissioner of Police, NSW Police Service v Estate Edward John Russell and ors [2001] NSWSC 745 (31 August 2001) ("Russell") Justice Sully considered the issue in detail, and stated: 43 It seems to me that the Police Service of New South Wales, as established by section 4 of the Police Service Act, has by reason of ss 6 and 7 of that Act, duties, functions and characteristics sufficient to establish it as a public authority in the sense discussed by the High Court. The Police Service of New South Wales cannot operate, relevantly, except by and through police officers who are serving members of the Service. It seems to me to follow that services provided by such serving police officers are services provided by a public authority in the sense contemplated by the Anti-Discrimination Act. 44 A correct assessment of the conduct of the individual police officers in the course of their pursuit and arrest of the late Mr Russell is in my opinion as follows: [1] The police officers who took part in the pursuit of Mr Russell were providing to the community at large services of the kind described in section 6(3)(a) and (b) of the Police Service Act. [2] The police who took part in the arrest of the late Mr Russell were also thereby providing to the community at large services of those two kinds. [3] As soon as the late Mr Russell had been formally arrested, and had passed thereupon into police custody, the arresting police, and any police officer who had any part at all in the way in which Mr Russell was subsequently handled; or who witnessed the way in which Mr Russell was handled; became thereupon charged with a public duty to provide to the late Mr Russell police services by way of the protection of his person from injury or death, and the protection of his property from damage, "whether arising from criminal acts or in any other way". [4] All of the police officers mentioned in [3] above wholly failed, on the facts as found by the Equal Opportunity Division, to provide the services which they were bound to provide to Mr Russell pursuant to section 6(3)(b). [5] To say that what the individual police officers did, or suffered to be done, to the late Mr Russell amounted to the provision by them to him of police services, but on a basis discriminatory in the sense contemplated by section 19(b), seems to me to be a wholly artificial perception, given the facts found by the Equal Opportunity Division. The police officers involved did not, in my opinion, provide imperfectly to the late Mr Russell the services which they were duty bound to provide to him. They did not provide those services at all. [83] In the case of Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 (20 July 2012)("Robinson") Justice Yates considered the issue of service provision by police, in the context of the AD Act, and stated: In Rainsford v Victoria [2005] FCAFC 163 ; (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 … Page 21 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 Subsequently, in Rainsford v Victoria [2007] FCA 1059 ; (2007) 167 FCR 1 Sundberg J (at [72]) stressed that not all government functions are services: The judgments in IW [1997] HCA 30; 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. 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. 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. 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] TASSC 27 ; (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. 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. Section 6(3) of the Police Act defines those services as follows: In this section: police services" includes: (c) services by way of prevention and detection of crime, and (d) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and Page 22 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 (e) the provision of essential services in emergencies, and (f) any other service prescribed by the regulations. 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] NSWCA 432 ; (2009) 262 ALR 519 at [30]–[32]. 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]. 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. 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. 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 [84] In a decision of the South Australian Equal Opportunity Tribunal — Patrick v State of South Australia (No 2) [2009] SAEOT 1 (21 January 2009) Through the performance of these functions, SAPOL provides services to the South Australian community. While SAPOL provides services to the community, it cannot be said that SAPOL provides a service to each individual person who is arrested, charged and held in custody. "Service" is not to be confused with a duty that may arise out of the police function to uphold the law. Such a duty may arise when a person presents at a police station to answer a warrant of apprehension that contains an endorsement that bail is not to be granted. In carrying out their duty, SAPOL would be fulfilling one of their functions and thus providing a service to the South Australian community. It could not be said that SAPOL were providing a service to Patrick when they arrested, charged and held her in custody. In the case of Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 (20 July 2012) Justice Yates observed in relation to bail: 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. Page 23 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 Dealing with Mr Robinson's bail application 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. Mr Robinson's bail application was "dealt with" under the provisions of the Bail Act 1978 (NSW) (the Bail Act). 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. 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: (d) 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 (e) 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. 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. 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: (f) promoting effective law enforcement, or (g) the protection and welfare of any specially affected person, or (h) the protection and welfare of the community, or (i) reducing the likelihood of future offences being committed by promoting the treatment or rehabilitation of an accused person. Page 24 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 (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: (j) by the nature of the offence, or (k) for the protection and welfare of any specially affected person, or (l) 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 subs (1) of this section. (4) Notwithstanding subs (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 subs (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: (m) any person against whom it is alleged that the offence concerned was committed, and (n) the close relatives of any such person, and (o) any other person whose needs, in the opinion of the authorised officer or court, warrant special consideration because of the circumstances of the case. 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. 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. 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. 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 Page 25 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 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] EWCA Civ 385 ; [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 [2007] FCA 1059; 167 FCR 1 at [78]. Conclusion on services. 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. 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 … … 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. 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. 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]. [85] The NSW court of Appeal considered the authorities in Commissioner of Police v Mohamed [2009] NSWCA 432 (23 December 2009) ("Mohamed"). This case involved consideration by the court of Appeal of questions of law referred to it by the Appeal Panel of the Administrative Decisions Tribunal, before findings of fact had been made. The court of Appeal, per Spigelman CJ and Basten JA,referred to the authorities and observed: Page 26 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 35 It follows that there is no difficulty in identifying police services, for the purposes of s 19 of the Anti-Discrimination Act, by reference to the services actually provided (or refused) to the complainant or those on whose behalf she complains. The aggrieved persons for that purpose may be one or more individuals or a section of the community. 36 There is nothing surprising about the proposition that the police owe individual members of the community a duty to exercise their powers and carry out their functions on a non-discriminatory basis. Such a duty is recognised in international law, which may uphold a claim for refugee status on the part of a person denied protection from violence on the basis of a protected characteristic, in his or her country of nationality: see Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; 210 CLR 1. Indeed, the fact that an authority is required to provide a public service implies that the service is to be provided without discrimination across all sectors of the community. To withdraw such a service from a particular group on the basis of a characteristic protected under human rights law is not to default on any obligation to the public at large, but in relation to members of that group. There is no reason why members who suffer individually as a result of such conduct should not have a basis for complaint under appropriate legislation, including the Anti-Discrimination Act. 37 This approach obtains support from the judgments of the High Court in IW. That case involved a challenge to a decision of the City of Perth Council resolving to refuse an application for planning approval of a daytime "drop-in" centre for persons infected by HIV or with AIDS. The complaint was based on a finding that a number of councillors voted to refuse the application on the basis of what was described as "the AIDS factor". That, it was contended, constituted refusal of a service on the basis of the impairment of those for whom the service was intended. 38 In discussing the scope of the definition of "services" in the Equal Opportunity Act 1984 (WA), which was in similar terms to the definition in the Anti-Discrimination Act, Brennan CJ and McHugh J stated at 11: The term 'services' has a wide meaning. The Macquarie Dictionary relevantly defines it to include 'an act of helpful activity'; 'the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance'; 'the organised system of apparatus, appliances, employees, etc, for supplying some accommodation required by the public'; 'the supplying or the supplier of water, gas, or the like to the public'; and 'the duty or work of public servants'. 39 Their Honours concluded that the definition was not capable of including a refusal to exercise a power under planning legislation (at 11) but accepted (at 13) English authority holding that there had been a provision of services "in carrying out a statutory duty to determine whether a taxpayer was entitled to a deduction for a dependent child and in disseminating and giving advice to taxpayers to enable them to claim that tax relief": Savjani v Inland Revenue Commissioners [1981] QB 458 . Their Honours also cited (at 14) with approval the decision in Farah v Commissioner of Police of the Metropolis [1998] QB 65 in which the English court of Appeal held that "those duties of a police officer that involve assistance to or protection of the public constitute 'services to the public' for the purposes of the Race Relations Act 1976 (UK)". 40 In IW, Dawson and Gaudron JJ also accepted that the term "services" was a word of "complete generality" and "should not be given a narrow construction unless that is clearly required by definition or by context": at 23. Their Honours noted that the definition, which was in similar terms to that in the Anti-Discrimination Act, "is to be taken as signifying everything which falls within [the ordinary notion of 'services']". Their Honours also referred with approval to Farah, as did Toohey J at 29, Gummow J at 44 and Kirby J at 74. 41 The facts of Farah bear some resemblance to the circumstances of the present case. Ms Farah pleaded that she was a Somali refugee, then aged 17, who, with her 10 year old cousin, was attacked near their home by white teenagers who set a dog on her and injured her. She summoned the police, "but the police officers who came in response, instead of helping her and seeking to detain her attackers, arrested her without cause, detained her for a time, and charged her with affray, common assault and causing unnecessary suffering to a dog": at 69A-B. The case involved a claim for damages against the Commissioner of Police and included an allegation that the conduct of the officers involved discrimination on the ground of race. The Commissioner sought, unsuccessfully, to strike out the allegation concerning discrimination. Otton LJ, in rejecting a submission by the Commissioner that the police should be immune from the operation of the Race Relations Act, sought to draw a distinction between those acts of assistance and protection which might be done by a private person and acts which would never be done by a private person, because they involved "a person holding statutory office in the course of formulating or Page 27 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 carrying out government policy". His Honour held that the pleading "that officers failed to react to the plaintiff's emergency telephone call, to investigate her account at the scene, and to afford her protection — all on account of her colour" fell within the former category: at 84G-H. 42 More recently, in Gichura v Home Office [2008] EWCA Civ 697 the English court of Appeal accepted that a Kenyan citizen, held in immigration detention in the UK might bring a complaint under the Disability Discrimination Act 1995 (UK) in relation to the circumstances of his detention, whilst awaiting repatriation to Kenya. Again, the distinction was drawn between those circumstances in which the authorities were exercising a governmental function, by deciding whether he was entitled to asylum in the UK and if not, whether he should be detained, on the one hand and, on the other, the circumstances of his detention. The claim in respect of the latter was allowed to proceed. 43 The decision in Gichura is consistent with the decision of Sully J in Commissioner of Police v Estate of Russell. Edward John Russell had been arrested by police and taken into police custody. He had complained that in arresting and detaining him police officers had discriminated on the grounds of his race, he being an Aboriginal man. The complaints were considered and upheld by the Equal Opportunity Division of the Tribunal and the Commissioner appealed against that decision to the Appeal Panel. The Appeal Panel referred several questions of law to the Supreme Court for its determination … [The judgement sets out relevant extracts from Russell and continues:] … .. … 45 The case of Russell went on appeal to this court, but that issue was not further agitated: Commissioner of Police v Estate of Russell [2002] NSWCA 272; 55 NSWLR 232. The reasoning of Sully J, however, demonstrates the assistance which may be obtained by answering questions referable to specific findings of fact. There may be a real difficulty in identifying, in particular factual circumstances, the limits of the concept of "services" in relation to the exercise by police of their functions, both under the general law and under statute. Absent findings as to such circumstances, it would be doubtful whether this court should reconsider the line of authority referred to above, which appears to be inconsistent with the submissions sought to be made for the Commissioner. In any event, that line of authority includes the approval of Farah by the High Court in IW [86] The NSW court of Appeal, per Spigelman CJ, Basten JA, thereby declined to reconsider the authorities and in particular noted that the line of authority included approval of Farah by the High Court. The tribunal considers that it is bound to consider and apply the line of authority detailed by the court of Appeal (such as Russell, Farah, Gichura) where it is applicable to the facts of the present case. The decision of Justice Yates in Robinson is also authority which the tribunal should have regard to. It was decided subsequently to the court of Appeal decision in Mohamed. Counsel for the Respondent did indicate during the hearing that she believed an appeal was under consideration from that decision, however at the time of writing these reasons for decision there was no confirmation of such appeal nor an appeal decision available. [87] The tribunal has considered the case law as set out above as to whether the respondent, or the police, were providing the applicant with a service at the relevant time. The tribunal accepts that the authorities establish the service needs to be defined with precision by the applicant — the services defined by the applicant are set out above in the summary of the Points of Claim. The authorities as to when police may be said to be providing a service to an individual are complex, and have been carefully considered by the tribunal in the light of the objects of the Anti-Discrimination Act to prevent unlawful discrimination by public authorities. After careful consideration of the authorities and the facts of the present matter the tribunal finds as follows. The pursuit and arrest of a suspected criminal is not the provision of the service to the person being pursued or arrested. The determination of the bail application does not involve the provision of a service; and the decision to bring criminal proceedings against a person is not the provision of a service to that person. The care of a detainee may involve the provision of a service although there is some question over whether all aspects of detention involve the provision of a service. In applying these principles the tribunal finds that the handcuffing, cautioning, questioning and arrest of the applicant at about 12:20 pm on 19 August 2009 did not involve a service to the applicant; the conveyance by police vehicle to Castle Hill police station, on the facts of this case, did not involve the provision of a service to the applicant, this was proper police practice following arrest; questioning in custody did not involve a service to the applicant; the decision to apply for an AVO did not involve a service to the applicant; and the decision to charge the applicant did not involve a service to the applicant. The respondent's consideration of bail and the decision to refuse bail initially did not involve a service to the applicant but was a requirement of to law pursuant to the Bail Act; and attending the applicant's home to enquire about compliance with bail conditions did not involve a service to the applicant. The making of an entry in the police data base, the COPS entry, did not involve provision of a service to the applicant. Page 28 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 [88] The tribunal also agrees with the submission of the respondent's representative that the AD Act does not require the respondent to provide special services to meet the needs of a person with a disability. The Anti- Discrimination Act is directed at equality of treatment: per, majority judgement of Gummow, Hayne and Hayden JJ at paras 196 to 208, High Court of Australia judgement in Purvis the State of New South Wales (2003) 217 CLR 92 (Purvis) : In so far as those [international] instruments were said to bear upon the proper construction of the Act, however, it is necessary to notice an important respect in which the subject of disability discrimination differs from some other forms of discrimination. Central to the operation of the Sex Discrimination Act and the Racial Discrimination Act 1975 (Cth) ("the Racial Discrimination Act") is the requirement for equality of treatment. A central purpose of each of those Acts is to require that people not be treated differently on the ground of sex or race. Difference in sex or race is identified as a generally irrelevant consideration [123]. By contrast, disability discrimination legislation necessarily focuses upon a criterion of admitted difference. The abilities of a disabled person differ in one or more respects from that range of abilities which is identified as falling within the band described as "normal". It follows that disability legislation must be understood from the premise that the criterion for its operation is difference. That has important consequences, not only for the lessons that may be learned from the way in which other legislatures or deliberative bodies have identified the problems that should be considered, but also for the proper understanding of the solutions that have been devised by those other bodies to answer the problems identified. Since the Act was enacted in Australia, legislation enacted in other jurisdictions has sought to give effect not just to a principle requiring equality of treatment but to what is sometimes called a "substantive conception of equality"[124], in which the purpose is "to prevent or compensate for disadvantages"[125]. (Many of the international instruments to which we were taken must also be understood in that way.) Concepts of "difference", "disability" and "disadvantage" all depend upon comparisons. They assume that there is a person, or a group of persons, with whom it is useful and relevant to draw the comparison which is implicit in describing one person as "different", or "disabled", or "disadvantaged"[126]. Obviously, the utility and relevance of the comparison depends upon why it is being made. Different comparisons may have to be drawn according to whether the purpose is limited to ensuring that persons situated similarly are treated alike, or the purpose is wider than that. In particular, if the purpose of legislation is to ensure equality of treatment, the focus of inquiry will differ from the inquiry that must be made if the relevant purposes include ensuring equality in some other sense, for example, economic, social or cultural equality. Substantive equality" directs attention to equality of outcome or to the reduction or elimination of barriers to participation in certain activities. It begins from the premise that "in order to treat some persons equally, we must treat them differently"[127]. Obviously there are many ways in which "substantive equality" can be defined and there are many different ways in which legislatures may seek to achieve it. The principal focus of the Act, however, is on ensuring equality of treatment. In this respect it differs significantly from other, more recent, forms of disability discrimination legislation. In particular, for present purposes, it is important to notice that, unlike the Disability Discrimination Act 1995 (UK) ("the 1995 UK Act"), the Americans with Disabilities Act of 1990 ("the ADA")[128] or the European Community Directive for "establishing a general framework for equal treatment in employment and occupation"[129], the Act does not explicitly oblige persons to treat disabled persons differently from others in the community.[Tribunal emphasis] The Act does not, for example, contain provisions equivalent to ss 5 and 6 and ss 28B to 28G of the 1995 UK Act which expressly oblige employers and educational authorities to make "reasonable adjustments" to accommodate disabled persons[130] …. … ..Considerable care must be taken, therefore, before applying what has been said about either the aims or the effect of other forms of disability discrimination legislation from other jurisdictions to the construction of the Act. Even more care must be taken before adopting the necessarily general forms of aspirational, as distinct from normative, statements found in international instruments as an aid to resolving the particular questions of construction which now arise. Aspirational statements are commonly concerned to state goals, not to identify the particular methods by which the stated goals will be achieved. Those international instruments to which we were referred took this aspirational form. None of the considerations just mentioned denies the importance of giving full effect to the indirect disability discrimination provisions of the Act. Well before the Parliament's enactment of the Act, the Sex Discrimination Act or Page 29 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 the Racial Discrimination Act, it had been recognised in the United States[135] that, in some cases, nominally equal treatment can disguise discrimination. As Gaudron and McHugh JJ were later to point out in Castlemaine Tooheys Ltd v South Australia[136], to proceed as if there is no difference, even though there is a relevant difference, may be discriminatory. But as later developments in connection with affirmative action and reverse discrimination legislation in the United States reveal, there is considerable room for debate about when apparently "equal" treatment is to be understood as being discriminatory and apparently unequal treatment is not[137]. With these considerations in mind, how should the issues of statutory construction which arise in this matter be resolved? [89] The views of the majority judgement of the High Court in Purvis case do indicate the complexity of discrimination legislation in its application to disabilities. The judgement stresses the importance of giving effect to the purpose of the Act, and the difficulties presented by nominally equal treatment which may be discriminatory. The majority judgement indicates that the focus of the legislation is directed to equality of treatment and not to provision of special treatment. In relation to the Commonwealth legislation, s 5 of the Disability Discrimination Act 1993 (Cth) was repealed and substituted with a new s 5 by the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009, such substituted s 5 including requirements for reasonable adjustments to be made in respect of disability (s 5(2)). The wording of s 5(2) as amended differs from the previous wording which was applicable at the time of the High Courts' decision in Purvis. The NSW Anti-Discrimination Act (s 49B) does not contain similar provisions to the amended s 5(2) of the Commonwealth Act in relation to reasonable adjustment requirements. The definition in the NSW legislation remains similar to s 5(1) considered by the High Court in Purvis. [90] The respondent in caring for a detainee may provide services to the detainee, in terms of the AD Act. The custody manager has specific responsibilities under the LEPR Act, however it is not necessarily the case that compliance with these legal obligations is also provision of a service to the applicant. Certainly, care in custody must be provided in a non-discriminatory fashion and if a detainee was treated less favourably than another detainee on the basis of disability then the tribunal considers that this may be unlawful discrimination depending on the facts of the individual case and the evidence as to the service which is refused or supplied on less favourable terms. [91] In the present matter it is claimed by the applicant that the service to the applicant in custody which was refused was the offer of a support person to the applicant as a vulnerable person in breach of LEPR Act obligations. The tribunal has found as a fact that there was no breach of LEPR Act obligations. However the tribunal has also examined whether on the evidence the applicant was treated less favourably in the same circumstances as another detainee because of his disability, by the respondent, while in custody at the police station. Differential / less favourable treatment [92] The majority judgement in Purvis Case (Purvis v New South Wales [2003] HCA 62; 217 CLR 92; 202 ALR 133; 78 ALJR 1 (11 November 2003)) stated that the comparator is a person without the applicant's disability in considering whether the treatment of the applicant by the respondent is less favourable in the same circumstances or circumstances which are not materially different. Section 49B of the Act indicates that for the applicant to establish disability discrimination he must establish on the evidence that the respondent treated the applicant less favourably than in the same circumstances, or in circumstances which are not materially different, the respondent treated or would treat a person who does not have that disability. [93] In the present case the applicant did not lead any evidence about a comparator, or a hypothetical comparator, for consideration by the tribunal in assessing whether there was less favourable treatment. The applicant was represented by solicitor and Counsel. At para 213 the majority judgement in Purvis focused on the comparison to be made for the purposes of the wording of the Commonwealth Act, which is in substantially the same terms as the relevant provisions of the AD Act, NSW (s 49B). Direct disability discrimination — the comparison to be made quot;a person without the disability. The comparison that is to be made is of the treatment given or proposed to be given to the disabled person and the treatment of a person without the disability "in circumstances that are the same or are not materially different". Recognising that s 5(1) requires comparison with the treatment that would be given to a person without the disability is critical to the proper application of the Act. It is a comparison which is very different from the comparisons required by other forms of disability discrimination legislation. Page 30 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 [94] Despite the absence of any evidence led by the applicant as to a comparator or hypothetical comparator, the tribunal has considered the hypothetical comparator of a young man in custody for the first time, who has committed an offence against a family member, wounding the family member by use of a knife, who did not have the applicant's disability or claimed disability. Having regard to the hypothetical comparator the tribunal has considered whether there was less favourable treatment of the applicant on the evidence. [95] The applicant was cautioned and advised of his rights by the custody manager in accordance with the custody manger's obligations under Pt 9 LEPRAct, he was not treated less favourably. He was given access to legal advice, medical attention when it appeared required, and refreshment (a meal). His mother visited him in the cells and spent time with him there, and was given a blanket to give to him. He was able to show his mother paperwork given to him by the custody manager. His father was permitted to visit him in custody, to sit with him in the dock, and to be present with him in the dock when investigating police (Wilkins and Last) offered him an interview. The applicant's father was given a copy of relevant paperwork by the custody manager. There is simply no evidence of less favourable treatment of the applicant, than a hypothetical comparator in custody, on the evidence presented. [96] Even if it was considered that the failure of investigating officers to report to the custody manager the parent's advice of Asperger's syndrome was a refusal of a service to the applicant by denying him the designation of vulnerable person (and the tribunal is not necessarily satisfied on the evidence that there was such failure given the officers reasonable assumption that the applicant's father was sitting in the dock as a support person) — the applicant is required to prove causation to establish unlawful discrimination. Causation [97] The applicant needs to prove causation to establish disability discrimination: that is, the applicant must establish that one of the real, genuine or true reasons for any less favourable treatment of the applicant by the respondent was his disability. As was pointed out by the High Court in Purvis the central question will always be why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Was any failure to communicate advice received about Asperger's syndrome to the custody manager because of the applicant's disability? The tribunal finds, on the evidence, that Wilkins and Last assumed it had been reported and that this assumption was reasonable given the presence of the applicant's father in the dock with the applicant appearing to be there as a support person. The tribunal is not satisfied that any failure to report the advice that the applicant had a disability or claimed disability, by police, if such occurred, was because of the applicant's disability. In relation to the applicant's claim that the failure to treat him as a vulnerable person while in custody under relevant legislation was discrimination against him on the grounds of his disability, the tribunal is not satisfied that the applicant has established that the respondent's actions in this regard were because of the applicant's disability or claimed disability. The tribunal has found that Sergeant Hunt assessed the applicant in a proper way and formed the view, on reasonable grounds, that he was not a vulnerable person. The reason she formed that view was not because of his disability. [98] When the tribunal examines the respondent's actions, as complained about by the applicant, the tribunal cannot conclude that one of the real reasons for those actions, on the evidence overall, was the applicant's disability. Why was the applicant arrested? The evidence indicates the arrest was due to the fact that the applicant appeared to police to have committed a serious criminal offence. There is no evidence that he was arrested because of a disability, whether such disability was a mental illness, mental condition or other disability. Why was the applicant taken to the police station? The evidence indicates that he was taken to the police station because he had been arrested and it was standard police procedure. He was not taken to the police station because of any disabilities. Why was he held in custody? He remained in custody, as is usual police procedure, until bail was determined. He was not in custody because of any disability. In relation to bail the question as to why police refused bail is answered by consideration of the evidence — the police considered the seriousness of the charge which included injuries to the victim, the applicant's brother, was such that bail should be refused. The next day the applicant was presented to court and a conditional bail was granted by a Magistrate under the Bail Act. [99] The bail conditions were a matter of judicial decision and were not actions of the police or the respondent. In relation to the application for an AVO the evidence indicates there were reasonable and appropriate considerations by the police in making the application for an AVO given the offence of violence occurred in the applicant's home, between family members, and injury was sustained. There was no evidence before the tribunal that the application for an AVO on 19 August 2009 was made by police because of the applicant's disabilities or claimed disabilities. In relation to the visit to the applicant's home due to alleged breach of bail conditions in July 2010 the police acted on information then held by police, the applicant provided the officers with updated information and no further action was taken by police. There is no evidence indicating that the enquiries by police were motivated or caused by any disability or claimed disability possessed by the applicant. Indirect discrimination [100] In closing submissions the applicant's legal representative raised indirect discrimination. This was not raised Page 31 of 31 Mariani v NSW Police Force, State of NSW, [2013] NSWADT 35 in the applicant's points of claim which have been summarised above in these reasons the decision. Nor was any evidence led by the applicant in the proceedings to address such a claim. Indirect discrimination is unlawful pursuant to s 49B(1)(b) of the AD Act: 49 B(1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator: (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 such 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. [101] The tribunal is not satisfied on the evidence that the applicant has established that he was required by the respondent to comply with a condition with which a substantially higher proportion of persons who do not have that disability, comply or are able to comply. No such requirement or condition was identified by the applicant in the proceedings, nor was any evidence led that a substantially higher proportion of persons without his disability could comply with a requirement or condition imposed by the respondent on the applicant. Nor was any evidence led of the (unspecified) requirement being not reasonable having regard to the circumstances of the case. The tribunal should not be required to sift through the evidence in an attempt to establish a basis for indirect discrimination, and this is particularly so where the applicant is legally represented. However, on consideration of the evidence overall, the tribunal is not satisfied that the applicant has established that the respondent required the applicant to comply with a requirement or condition with which a substantially higher proportion of persons who do not have the disability comply or are able to comply. Conclusion [102] For all of the above reasons the tribunal is not satisfied that the applicant has established that he was discriminated against, by the respondent, in provision of services, for reason of his disability. Accordingly the tribunal dismisses the application. ********** Order The application is dismissed Counsel for the applicant: Ms Veloski Solicitor for the applicant: SKM Lawyers End of Document