Case Reports - Civil Law Supreme Court decision clarifies discrimination law A Supreme Court decision has found that the State of NSW is liable for the conduct of police officers who carry out their functions in breach of the Anti Discrimination Act (the ADA). The Supreme Court also found that the services provided by the Police Service to the public are a “service” within the meaning of the ADA. In 1993 Edward John Russell was apprehended and arrested at Oberon by 11 police officers. In the course of this arrest he was forcefully handcuffed, repeatedly punched by unidentified police officers and his head was rammed into a police wagon. Mr Russell was screaming as he was dragged to the police wagon while a number of officers yelled and swore at him. A complaint was made to the Anti Discrimination Board in 1998, alleging racial discrimination and racial vilification. The Equal Opportunity Division of the Administrative Decisions Tribunal (ADT) found in favour of Mr Russell. The Police Service appealed to the Administrative Decisions Tribunal's Appeal Panel against these orders. The Appeal Panel referred the three questions of law to the Supreme Court. Justice Sully of the Supreme Court held that the Anti Discrimination Act (ADA) does not apply to the Commissioner of Police or the NSW Police Service, making the Commissioner or the Police Service liable as “employer” or “principal” of police officers in the Service. This is because ordinary serving police officers are not employees but rather appointees to a public office. However Sully J found that the State of NSW is liable for the conduct of police officers who carry out their functions in a manner contravening the ADA. Sully J also held that the services provided by the police are services provided by a public authority as contemplated by the ADA. Sully J found however that in this case, the police had wholly failed to provide the services they were bound to provide to Mr Russell, such as protecting him from injury and protecting his property from damage. The Supreme Court also found that the Administrative Decisions Tribunal did not have the power to order the NSW Police Service to make a record on the file of each of the police officers stating the conclusions of the Tribunal. This case is clearly a very important one in that it has established a ground for aggrieved members of the public to commence discrimination proceedings against the Police for any discriminatory actions in the exercise of their functions. This case is likely to be of interest to a wide range of civil liberties and other groups. Atousa Khadem Civil Litigation

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