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Alternatives to a formal complaint against police


Can NSW Anti-Discrimination laws be used?

 

This webpage contains general information only. It is not legal advice. If you need legal advice, please contact a lawyer – some contacts are here.

1. Introduction

A person who feels that police have discriminated against them may be able to use anti-discrimination law, in some situations. 

The Anti-Discrimination Act 1977 (NSW) (‘the Act’) makes certain types of discrimination unlawful. The Act provides an avenue for resolving claims of discrimination and sexual harassment.

However, anti-discrimination law cannot be used for every type of situation where discrimination can occur –anti-discrimination laws only cover specific situation such as “provision of goods and services” and “employment.

This information page is concerned with interactions between members of the public and police. Therefore, it does not cover discrimination by police in relation to employment (e.g. police officers discriminated against at work, or when applying for a job with the police force).  Instead we will focus on discrimination in relation to “the provision of goods and services” by NSW Police. The “provision of goods and services” is explained in detail below.

In relation to the provision of goods and services, it is only discrimination on the grounds of race, sex (including breastfeeding and pregnancy), transgender, marital or domestic status, disability, homosexuality and age, which is unlawful under the Act.[1] In discrimination law, these reasons are called ‘protected grounds’ or ‘attributes’ or ‘characteristics’.

Legal advice should be obtained about:

  • the particular situation and how anti-discrimination law applies; and
  • the pros and cons of making an anti-discrimination claim.

This page focuses on NSW anti-discrimination law, but federal anti-discrimination law could also be considered. A discrimination lawyer can give you advice about whether federal anti-discrimination laws are relevant, and the pros and cons of using the NSW vs federal laws.

Below are some general guidelines about when anti-discrimination law can be used to address discrimination by NSW Police.

2. Meeting the test for discrimination

Anti-discrimination law recognises two kinds of discrimination, direct or indirect discrimination.

To make a claim of direct discrimination you must show that the police officer discriminated against you because of a “protected ground”, for example, because of your age, race or sexual orientation etc. [2] You have to show that police treated you less favourably in the same circumstances (or circumstances not materially different) than the officer treated, or would treat, a person without that attribute or ground. For example, if the police treat you differently (unfairly) because you are Aboriginal, compared to how they treat non-Aboriginal people.

Indirect discrimination occurs when there is a requirement or rule that disadvantages people from particular groups. Indirect discrimination addresses rules, policies and practices that are not discriminatory at face value but in practice are unfair and unreasonable in effect on a particular group. To make an indirect discrimination claim, there are three elements required:

  1. the discriminator has imposed a condition or a requirement;
  2. that the condition or requirement is not reasonable in the circumstances; and
  3. that persons with a protected attribute or ground will be unable to comply with, or be disadvantaged as a result. [3]

For example, a requirement that a victim of crime must physically go to the police station if they want to make a statement, may indirectly discriminate against people with a who use a wheelchair who cannot access the police station because there is no ramp access.

3. Discrimination in “the provision of goods and services”

Anti-discrimination law in NSW forbids discrimination (because of certain grounds / attributes) by public authorities (such as NSW Police) in the “provision of goods and services”.

For example, section 19 of the Act reads:

19 Provision of goods and services

It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:

  (a) by refusing to provide the person with those goods or services, or

  (b) in the terms on which the other person is provided with those goods or services.

Similar provisions exist for discrimination on the grounds of sexual harassment, sex, transgender, marital or domestic status, disability, homosexuality and age. They are found in sections 22F, 33, 38M, 47, 49M, 49ZP, and 49ZYN of the Act, and mirror section 19 in their wording and application.

3.a. Does NSW police provide “goods and services”?

NSW police does not generally provide “goods”. Some (but not all) activities of NSW Police are “services” that are provided to victims of crime, or witnesses of crime. The police argue (and the courts have accepted so far) that the Police do not provide services to suspects.  However, after a person has been arrested and is in police custody, they also receive some “services” in relation to their detention.

For more detail about identifying what is a “service” provided by NSW Police, click here.

To make a successful discrimination claim, recent case law suggests that victims or witnesses must identify the relevant police activity or conduct that is a ‘service’. To be a ‘service’, the activity or conduct would need to be of particular benefit to the individual, and not merely to the community at-large. [4] Then, of course, the ‘aggrieved person’ would need to show that they were denied that service, or treated less favourably in the way the service was provided to them, because of a “protected ground” (e.g. because of their race, sexuality, martial status etc); or because they were indirectly discriminated against (in relation to a protected ground).

3.b. Commentary:

The application of anti-discrimination law in NSW, in relation to police activities and actions, appears somewhat arbitrary and patchy in coverage. It is alarming that police are not subject to anti-discrimination law in relation to dealings with ‘suspects’, or anyone under criminal investigation, which can cast a very wide net.

Queensland anti-discrimination law provides an example of broad protection from discrimination in relation to all police conduct (not merely when “providing a service”). For more discussion see: ‘“You’re not welcome here”: Police move-on powers and discrimination law’ by Tamara Walsh and Monica Taylor

4. Making a discrimination complaint – the process

Discrimination complaints under the Act start off at the Anti-Discrimination Board, which tries to assist you and the other side to reach a solution.  The Anti-Discrimination Board arranges a “conciliation conference”, which is a meeting of both sides to discuss the situation and to try to reach an agreement. If you are unable to resolve your complaint with the Anti-Discrimination Board, you may seek a decision at the Administrative Decisions Tribunal (‘ADT’), which makes decisions like a court. Time limits apply for making a complaint to the Anti-Discrimination Board, and applying to the ADT. Further information about the process can be found on the Anti-Discrimination Board website.

Get advice from a lawyer if you are thinking of lodging a discrimination complaint. Some useful contacts are listed here.

A useful resource about discrimination complaints is the Discrimination Toolkit, published by Legal Aid NSW, available here (note: This is a very large file to download).



[1] These ‘grounds’ are defined in the Anti-Discrimination Act 1977. For example, for racial discrimination, see sections 4 and 7 of the Act.

[2] Anti-Discrimination Act 1977 (NSW); race: s 7(1)(a), sex: s 24(1)(a), trans-gender: s 38B(1)(a), marital or domestic status: s 39(1)(a), disability: s 49B(1)(a); carer: s 49T(1)(a); homosexuality: s 49ZG(1)(a); age: s 49ZYA(1)(a).

[3] Anti-Discrimination Act 1977 (NSW); race: s 7(1)(c), sex: s 24(1)(b), trans-gender: s 38B(1)(b)-(c), marital or domestic status: s 39(1)(b), disability: s 49B(1)(b); carer: s 49T(1)(b); homosexuality: s 49ZG(1)(b); age: s 49ZYA(1)(b).

[4] Nick Yetzotis, ‘Complaints against police under human rights laws’, (2010) 48(2) Law Society Journal at 60.

 

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