Tribunal clarifies when police actions are 'services' for the purpose of discrimination law

Djime v Kearnes (Human Rights) [2015] VCAT 941 (26 June 2015)

To be covered by the Equal Opportunity Act 2010 (Vic) (the Act), members of the public alleging discrimination by police need to prove that the discrimination occurred in the provision of ‘goods and services’. A recent Victorian Civil and Administrative Tribunal (VCAT) decision clarifies the definition of ‘services’ in the Act as it relates to policing.

Facts

Mr Djime made a number of allegations against four named police officers and Victoria Police (the Respondents), alleging discrimination on the basis of race in the provision of goods and services, victimisation and sexual harassment. He also made claims of racial vilification and human rights breaches under the Racial and Religious Tolerance Act 2001 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Human Rights Charter). The allegations arise out of numerous incidents going back to 2008. Mr Djime, who is originally from Mali, believed his treatment by police was racially motivated.

The primary incident concerned police responses following a tenancy dispute. Mr Djime said he paid a deposit and moved belongings into new accommodation but after returning from a shopping trip the same day was unable to enter the premises. He returned the next day with a locksmith to gain entry and a verbal altercation with the landlord took place. Both called the police, who attended and removed Mr Djime from the premises. In the course of removing him, Mr Djime alleges the police officers pulled out capsicum spray, handcuffed him, beat his head against the floor and the wall and punched him at least 12 times in the back while handcuffed. He attended hospital after the incident and claims that he suffered a broken finger, loss of eyesight, back pain, anxiety and depression as a result. He claims he showed police a valid tenancy agreement and receipt for the deposit at the time. He has since experienced homelessness as a result of the eviction.

Other alleged incidents include:

• not being taken seriously when making a complaint about the tenancy incident;
• being stopped at Footscray train station for not touching on his Myki card, allegedly being sexually harassed by the female police officers, being removed from the station and taken in a police van ‘to the middle of nowhere’;
• falsification of charges by the police
• regular and unlawful searches of his shop in 2008 and being asked if he was selling drugs to pay for the rent;
• calling police when he saw a white girl and her boyfriend shoplifting from his shop and being told by police that he was trying to rip them off;
• being asked by police to stop dancing and turn the music down when he was filming in public while other young men busking were left alone;
• being sexually propositioned by an off-duty police woman at a nightclub; and
• police responding to an incident when he was punched by a drunk housemate by asking him, not the housemate, to leave.

Decision

The Respondents applied for the majority of the allegations to be struck out or summarily dismissed. VCAT dismissed 21 of the 27 allegations for being misconceived or lacking in substance, or not falling within the definition of ‘services’. The remaining six allegations will proceed to hearing.

The decision discusses at length the relevant case law on ‘services’ and provides a helpful summary of general principles relating to when police activity will constitute a 'service' for the purposes of the Act (at paragraph 70). These include:

• conduct which is helpful or beneficial for the individual is likely to be a service where it is consistent with the interests or welfare of the individual;
• the fact that conduct might arise in the exercise of a statutory power or in the performance of a statutory duty might assist in identifying whether conduct falls within the meaning of a service, but is not determinative;
• a distinction can be drawn between services provided to the community at large, and an arresting officer's dealings with an alleged offender
• police functions associated with prevention and detection of crime when they intervene in situations where there is a disturbance of peace or where an offence has been, or may be, committed are services provided to the public at large and individuals who may suffer injury or harm are likely to be services under the Act. In those circumstances, the service might include other functions such as protecting persons from injury or death and restoring and maintaining peace and good order;
• police provide a service where they respond to a specific request for assistance, such as when an emergency call is made. Following this, a service may be provided to a person being asked to leave or move on when that is intended to diffuse a situation rather than because an offence is suspected of having been committed;
• police may have a public duty to provide services to an alleged offender who has been arrested by way of protecting the person from injury or death and protecting property from damage;
• investigating an alleged offence, questioning and arresting alleged offenders, dealing with bail applications, decisions to lay or prosecute charges and decisions on how matters will proceed in court, serving summonses, executing warrants etc are not services; and
• in dealing with a situation or event, police may at some point in time cease to provide a service (eg; taking action to deal with an alleged offender).

Commentary

This decision provides some much needed clarity around when police activity will constitute a 'service' for the purposes of discrimination claims under the Act. Prior to this decision, Victorian case law only addressed situations where police conduct was not providing a service. It is now clear that police may be providing a service to the public at large, or to a specific individual in a range of circumstances. The decision broadens the circumstances in which a person may claim they have been discriminated against by police and hopefully afford better protection against discrimination. Importantly, the fact that the police are exercising a statutory power does not necessarily prevent the act from being discriminatory.

The requirement under the Act to prove that policing constitutes a ‘service’ in order to receive the benefit of discrimination protections contrasts with the Human Rights Charter, which imposes obligations on public authorities (such as Victoria Police) to act compatibly with, and give proper consideration to, human rights in all public acts and decisions.

The full case can be found here: http://www.austlii.edu.au/au/cases/vic/VCAT/2015/941.html

Stephanie Cauchi, Acting Manager, Legal Unit, Victorian Equal Opportunity and Human Rights Commission. The Commission was granted leave to appear as amicus curiae in the matter.