Hollingsworth v Commissioner of Police, New South Wales Police [2004] NSWADT 17 (28 January 2004)

Last Updated: 11 October 2004

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Hollingsworth v Commissioner of Police, New South Wales Police [2004] NSWADT 17


PARTIES: APPLICANT
Kim Hollingsworth
RESPONDENT
Commissioner of Police, New South Wales Police



FILE NUMBERS: 011019

HEARING DATES: 24, 25, 26, 27 - 28/03/2003, 28/05/2003

SUBMISSIONS CLOSED: 27/08/2003



DECISION DATE: 28/01/2004

BEFORE: Hennessy N - Magistrate (Acting President)Nemeth de Bikal L - MemberBolt M - Member





LEGISLATION CITED: Anti-Discrimination Act 1977
Charles Sturt University Act 1989
Charles Sturt University By-Law 1995
Crown Proceedings Act 1988
Disability Discrimination Act 1992 (Cth)
Police Act 1990
Sex Discrimination Act 1984 (Cth)

CASES CITED: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16
Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors [2001] NSWSC 745
Commissioner of Police v The Estate of Edward John Russell & Ors [2002] NSWCA 272
Cooper v Human Rights and Equal Opportunity Commission [1999] FCA 180
Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51
Dixon v RNJ Sicame Pty Ltd & anor; Sims v RNJ Sicame Pty Ltd & anor [2002] NSWADT 154 (revised 11-Sep-2002)
IW v City of Perth & Ors [1997] HCA 30; (1997) 191 CLR 1
Re Application for Crown Employees (Trainee Teachers) Award [1974] AR 450
The Corporation of the City of Adelaide v Australasian Performing Rights Association Ltd [1928] HCA 10; (1928) 40 CLR 481
Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349
Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661

APPLICATION: Homosexual Discrimination - Education
Homosexual Discrimination - Goods and Services
Homosexual Discrimination - In work
Sex Discrimination - Education
Sex Discrimination - Goods and Services
Sexual Harassment - At educational institution
Sexual Harassment - Goods and Services
Sexual Harassment - In workplace

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
T Anderson, barrister

ORDERS: 1 The complaints are dismissed


Reasons for Decision:

INTRODUCTION

The complaint

1 On 2 November 1999, Ms Hollingsworth (the applicant) lodged a complaint with the President of the Anti-Discrimination Board (the President) under the Anti-Discrimination Act 1977 (AD Act). The complaint alleged discrimination against the Commissioner of Police (the respondent) on the grounds of sex and homosexuality as well as sexual harassment. Being of the view that the complaint could not be resolved by conciliation, the President referred the complaint to the Tribunal on 20 March 2001.

2 Initially the applicant was legally represented and Points of Claim and Amended Points of Claim were filed. Although the Amended Points of Claim also contained allegations of victimisation under s 50 of the AD Act, there was no complaint of victimisation made to the President or referred to the Tribunal and we have no jurisdiction to entertain it. (Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16)

3 The President also referred a complaint by the applicant against the Vice Chancellor of Charles Sturt University (CSU). The parties settled that complaint by a Deed of Release dated 8 October 2002. One of the terms of that Deed is relevant to these proceedings because it may affect the respondent’s liability for any breach of the AD Act. That term is:

Ms Hollingsworth releases the University and its employees, servants, agents and its adult students, for whom the University is responsible and each of them from all actions, suits, causes of action, claims, demands, claims for costs or expenses whatsoever which Ms Hollingsworth now has or may have had against them or any of them arising from or in any way related to the alleged harassment, discrimination and victimisation.

Background to the complaint

4 The applicant commenced employment with the respondent on 21 May 1995 as a Student Police Officer under the Crown Employees (Student Police Officers) Award. On 17 July 1995 the respondent dismissed the applicant. The applicant alleges that this was because the respondent became aware that she had previously been a sex worker. The applicant claimed before the Industrial Relations Commission (IRC) that her dismissal was unfair and sought re-instatement. The IRC found that the applicant had been unfairly dismissed and ordered that she be reinstated to her former position as a Student Police Officer and recommence her training with the next intake of police recruits in November 1997.

5 On appeal to the Full Bench of the Industrial Relations Commission, the orders at first instance were quashed. The applicant appealed to the Industrial Relations Court which ordered that the decision of the Full Bench of the IRC be set aside and quashed and the orders made by the IRC be varied to read that Ms Hollingsworth be reinstated by the Commissioner to her former position as a Student Police Officer and to recommence her training with the next intake of police recruits after 21 May 1999.

6 In 1998 the respondent entered into an agreement with CSU under which the respondent agreed to recognise successful completion of the first three sessions of the Diploma of Policing Practice Course as satisfying the academic requirements for employment as a Probationary Constable. Consequently, by the time the applicant re-enrolled in the Diploma course at the Police Academy, first year students were no longer employees of the respondent.

7 Because of this change, and in order to implement the spirit of the orders made by the Industrial Relations Court, the applicant and the respondent entered into an agreement dated 24 August 1999. The terms of that agreement, and the question of whether the respondent and the applicant were in an employer/employee relationship as a result of that agreement, is an issue that is relevant to these proceedings. It will be considered further below.

8 The applicant enrolled in the Diploma of Policing Practice course at the Goulburn Police Academy on 5 September 1999. She left after the first day following alleged harassment. She returned four days later and left again after one day following further allegations of name-calling. This time she did not return for approximately six weeks. On 17 September she met with various police officers and staff of CSU and decided to return to the Academy on 24 January 2000. However she later deferred her re-enrolment to 14 May 2000. The applicant stayed at the Academy until November 2000 and has not returned since that time. She says that she still wants to be a police officer.

9 The applicant alleges that during the course of her studies at the Academy she was subjected to sexual harassment and discrimination on the grounds of sex and homosexuality and that the respondent did nothing to address her complaints.

SEXUAL HARASSMENT

Allegations of sexual harassment

10 Particulars of the applicant’s complaint of sexual harassment as set out in the Amended Points of Claim, are as follows:

(i) laughing, staring and pointing at the applicant;

(ii) referring to the applicant as being a ‘whore’, ‘dyke’, ‘slut’ and ‘prostitute’;

(iii) references to the applicant being a ‘fucking stuck up bitch’ and ‘ice-queen’;

(iv) references to the applicant’s van as the ‘lube-mobile’;

(v) condoms and hepatitis pamphlets being left outside the applicant’s living quarters;

(vi) questioning by Acting Inspector Howell as to whether the applicant was having sex with a fellow female recruit;

(vii) questioning by Acting Inspector Howell as to whether the applicant was prostituting herself on campus;

(viii) comments by male students that they were going to masturbate while thinking of her;

(ix) attempts by male students to see the applicant’s naked body by standing outside her window;

(x) references by recruits to the applicant’s room being a ‘brothel’;

(xi) being questioned in a sexually suggestive and derogatory manner; and

(xii) comments by sworn officers stating the various positions in which they could have sexual relations with the applicant.

Sexual harassment provisions

11 The applicant alleged that the respondent, the respondent’s employees, other workplace participants or students harassed her in contravention of s 22B(1), 22B(2), s 22B(6), s 22E(1) or s 22E(2) and s 22F. Those provisions are set out below:

22B Harassment of employees, commission agents, contract workers, partners etc

(1) It is unlawful for an employer to sexually harass:

(a) an employee, or

(b) a person who is seeking employment with the employer.

(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.

. . .

(6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons.

(9) In this section:

"workplace" means a place at which a workplace participant works or otherwise attends in connection with being a workplace participant.

"workplace participant" means any of the following:

(a) an employer or employee,

(b) a commission agent or contract worker,

(c) a partner in a partnership,

(d) a person who is self-employed,

(e) a volunteer or unpaid trainee.

22E Harassment at educational institutions

(1) It is unlawful for a member of the staff of an educational institution to sexually harass:

(a) a person who is a student at the institution, or

(b) a person who is seeking to become a student at the institution.

(2) It is unlawful for a person who is an adult student at an educational institution to sexually harass:

(a) a person who is a student at the institution, or

(b) a member of the staff of the institution.

22F Provision of goods and services

It is unlawful for a person to sexually harass another person in the course of:

(a) receiving, or seeking to receive, goods or services from that other person, or

(b) providing, or offering to provide, goods or services to that other person.

12 "Sexual harassment" is defined in s 22A:

For the purposes of this Part, a person sexually harasses another person if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or

(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

Third party liability

13 A person, in this case the respondent, may be vicariously liable for the acts of an employee or agent under s 53 of the Act. That section states that:

(1) An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

(2) If both the principal or employer and the agent or employee who did the act is subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.

14 The respondent may also be liable under the AD Act if he "aided or abetted" unlawful conduct. Section 52 states that:

It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.

Legal relationship between respondent and applicant

15 Putting to one side the question of whether the applicant’s allegations of sexual harassment come within the definition of that term in s 22A, the initial question is whether the respondent and the applicant are in a relationship, such as employer/employee or educational institution/student, which could potentially make the respondent liable for any sexually harassing conduct. The respondent submitted that because the applicant was unable to identify most of the people who had allegedly harassed her, there was no probative evidence that they were either students of CSU or servants or agents of the respondent. In addition, the respondent submitted that the applicant herself was not an employee of the respondent, a workplace participant, a student of the respondent or a recipient of goods or services from the respondent. Each of the sexual harassment provisions on which the applicant relies is considered in turn below to determine whether the respondent could be liable for the allegedly sexually harassing conduct.

Liability under s 22B – harassment of employees etc

16 Introduction. For the applicant to succeed in a claim that the respondent is in breach of the sexual harassment provisions in s 22B(1), (2) or (6), the applicant must be an "employee" of the respondent, a "person seeking employment" with the respondent or a "workplace participant."

17 Is the applicant an employee of the respondent? The arrangements under which the applicant attended the Police Academy at Goulburn were unusual, if not unique. Although the Industrial Relations Court ordered that Ms Hollingsworth recommence her training with the next intake of police recruits after 21 May 1999, by the time the applicant re-enrolled in the Diploma course at the Goulburn Police Academy, first year students were no longer regarded as employees. The signed agreement between the parties dated 24 August 1999, to implement the spirit of the Industrial Relations Court’s orders, contained the following provisions:

By letter dated 17 June 1999 the Commissioner put forward a proposal (the proposal) to Hollingsworth’s solicitors to give effect to the spirit of the orders of the Industrial Relations Court, and inter alia, stated:

Consequently, and in order to give effect to the spirit of the order of the Industrial Relations Commission in Court Session (and our understanding of Ms Hollingsworth’s expectations), the Police Service proposes that in lieu of employing Ms Hollingsworth it should pay her a fortnightly allowance (equivalent to the salary rate prescribed by the [SPO] Award) during those periods that she undertakes session 1, 2 and 3 of the Diploma of Policing Practice [Course] . . .

. . .

Hollingsworth is prepared to agree arrangements with the Commissioner the subject of the Proposal on the basis that the Commissioner will treat any application by her for employment as a Probationary Constable on successful completion of the first three sessions of the Diploma of Policing Practice Course, bona fide and in accordance with the spirit and comments by majority judges in the Industrial Relations Court.

18 The agreement went on to specify the amount of the allowance the applicant was to receive and that certain travel and Higher Education Contribution (HECS) fees and other expenses would be reimbursed. The agreement also provided that if the applicant secures employment as a Probationary Constable the respondent would credit her with pro rata sick leave, annual leave and extended leave. In consideration of entering into this agreement, the applicant agreed not to enforce the reinstatement order made by the Industrial Relations Court, except in certain circumstances.

19 The applicant said that it was her understanding that the agreement of 24 August 1999 was a contract of employment because, unlike other students, she was being paid as well as being given allowances for items including text books and travel. She also pointed out that two letters on Commissioner’s Office letterhead referred to her "employment" with NSW Police. According to Ms Hollingsworth she was an unsworn student police officer on a salary and therefore an employee. The respondent submitted that the terms of the agreement between the parties demonstrate that the applicant was not an employee. Furthermore, the provision in that agreement for the applicant to enforce the Industrial Relations Court’s order in certain circumstances, would not have been necessary if the applicant was an employee.

20 Meaning of "employee" in the AD Act. In Commissioner of Police v The Estate of Edward John Russell & Ors [2002] NSWCA 272 at [82] (20 August 2002) the Court of Appeal was faced with the question of whether a police officer is an "employee" of the Commissioner of Police within the meaning of that term in the AD Act. Spigelman CJ (with whom Stein J and Davies AJA agreed) provided the following explanation of the word "employee" in the AD Act:

The word "employee" has a legal meaning in the sense of a person who has a contract of employment with another. However, the word is capable of being used in a more general sense to encompass a person who is paid for performing work on a regular basis at the request, and at the direction, of another. In particular statutes the word "employee" will often be construed to extend to an independent contractor, even in the absence of an express statutory extension of a character contained in the Anti-Discrimination Act. The issue turns on the proper construction of the word in its context, in which process the scope and purpose of the statute under consideration plays an important part.

21 Spigelman CJ went on to say, at [87] to [88] that:

In the statute presently under consideration, the word "employee" appears in each of the provisions of the Act rendering it "unlawful for an employer to discriminate against an employee" on the relevant ground, in the present case, race. For beneficial legislation, such as the Anti-Discrimination Act, a liberal interpretation is appropriate. This is reinforced by the purposive approach required by s33 of the Interpretation Act 1987. (See IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 esp at 11-12, 18, 22-23, 58.)

Nothing in the scope and purpose of the Act suggests that it should be limited to persons subject to contracts of employment, even with the specific statutory extension to include work under a contract for services. Insofar as persons do "work" in a context closely analogous to "employment", the purpose of the legislation would be better served by extending the protection of the Act to such a relationship. There must be some element of regularity and permanence in the relationship, and also an element of direction and control of work, for it to fall within an extended sense of the word "employment". But where such context exists, the Court should be slow to hold that the Act has no application.

22 At [94] Spigelman CJ concluded that:

In my opinion the purpose served by the various sections in which the word "employee" appears, including s53, is such that the word "employee" should not be confined to situations in which there is a contract of employment, but extends to the situation of a police officer.

23 Decision on whether applicant is an "employee". In this case, despite the applicant’s submission, the agreement dated 24 August 1999 was not a contract of employment. The proposal, to which the applicant agreed, states that "in lieu of employing Ms Hollingsworth it should pay her a fortnightly allowance (equivalent to the salary rate prescribed by the [SPO] Award) during those periods that she undertakes session 1, 2 and 3 of the Diploma of Policing Practice [Course]." (Emphasis added.) The agreement also refers to the fact that the applicant may wish to apply for employment once the pre-requisites have been completed. The clear intention of the parties, as reflected in this agreement, is that the applicant is not to be regarded as an employee of the respondent. That intention may be displaced if the reality is that the applicant is in fact an employee.

24 A liberal interpretation of the word "employee" means that it is not confined to situations where a contract of employment exists. Other indicia of an employment relationship are relevant. These include whether the applicant was performing "work", whether there was some element of regularity and permanence in the relationship and whether there was an element of direction and control of the work.

25 The applicant was not performing "work" as that term is ordinarily understood. She was engaging in a course of study. The applicant’s position was akin to a person holding a scholarship to study with the prospect of employment once the course of study and any other requirements had been satisfactorily completed. In Re Application for Crown Employees (Trainee Teachers) Award [1974] AR 450, the Industrial Commission decided that it could not make an award governing the terms or conditions of employment of people training to be teachers for the New South Wales government. The reason was that although these people were paid for "practice teaching" under supervision in the class room they were not employees.

26 The agreement between the applicant and the respondent made it clear that if certain pre-requisites were fulfilled, the applicant would be considered for employment. There was no regular or permanent relationship between the applicant and the respondent. While the applicant was subject to the direction and control of the respondent in relation to her behaviour at the Academy, the respondent was not responsible for her academic progress. The fact that the applicant was paid an "allowance", rather than a salary, and was not entitled to sick leave or long service leave, also suggests that she was not an employee. On the basis of all these factors, we are satisfied that the applicant was not an employee of the respondent during the relevant period.

27 As the applicant was not an "employee" of the respondent her complaint of sexual harassment to the extent that it relies on s 22B(1)(a) or 22B(2) is dismissed.

28 Was the applicant seeking employment with the respondent? The applicant did not allege that the harassment occurred while she was seeking employment with the respondent however the August 1999 agreement and the evidence of the applicant makes it clear that her purpose in attending the Academy was to become a police officer. Her professional suitability for employment was being assessed while she was at the Academy. Giving the words "seeking employment" a liberal interpretation, the applicant was seeking employment when attending the Academy. In order to constitute a breach of s 22B(1)(b) the harassment must be perpetrated by the employer, that is, the respondent. In this case it is not alleged that the respondent personally harassed the applicant so any liability would be vicarious under s 53.

29 Liability under s 53. Under s 53 the respondent may be liable for acts of an employee or agent. None of the alleged perpetrators were agents of the respondent, but one, Acting Inspector Howell, was an employee. The particulars of sexual harassment allegations against Acting Inspector Howell are set out in paragraph 10 at (vi) and (vii). They relate to questions he asked the applicant in an interview.

30 Interview with Acting Inspector Howell. The interview with Inspector Howell on 5 September 2000 covered several issues. Initially Inspector Howell said that he wanted to talk about allegations that Tara Murray had made against Senior Constable Holland. Those allegations were that SC Holland had indecently assaulted Tara Murray. Inspector Howell explained that he had been conducting an investigation into those allegations. The applicant explained that SC Holland had told her the details of Ms Murray’s allegations. The applicant then related an incident where Tara Murray had come up to her in the library when she was sitting next to SC Holland and said words to the effect of "Guess what colour bra and pants I’ve got on?" The applicant was laughing about this and then explained to Inspector Howell that:

A: I think her, her intentions towards me were a little bit different to what I thought at first, as friendship I think it went further around than that from her point of view, not from mine, do you understand?

Q: And did it?

A: No, God no, because I wasn’t interested so I’ve been with girls before but I wasn’t interested in Tara in, in that way . . .

Q: Kim

A Yes

Q: Can I, can I ask at this stage then because you’ve raised it.

A: Yes

Q: I wouldn’t normally raise it but . . .

A: That’s OK.

Q: What was your relationship with Tara Murray?

31 The applicant alleged that this interchange constitutes sexual harassment. Inspector Howell gave evidence that the reason he asked her these questions was because it was relevant to Tara Murray’s credibility in relation to allegations she had made against SC Holland. In particular Inspector Howell referred to the applicant’s acknowledgment that she and Tara Murray had concocted rumours. One of the reasons she said she started rumours was so that she could control the media. When the media asked about a matter which was only a rumour, she would be able to say "No, that was one I’ve started myself, ha-ha-ha- you know, this is all bullshit, so that then the media comes to me and checks up, which they did, about the time things almost ended up on Channel 7 News that night, so. That, they were my motivations, all right, and that’s the only way I can control things here because I am desperate, I am by myself here, right."

32 Inspector Howell said that Tara Murray’s credibility would be severely compromised if it were established that she had been spreading false rumours about sexual relationships between people at the Academy. One of the reasons for Inspector Howell’s questions was to establish whether letters between Tara Murray and the applicant suggesting that they were having a sexual relationship, were true. The applicant pointed out that in her interview with Chief Superintendent Mahoney later in the day on 5 September 2000, he said that the question of whether Tara Murray and the applicant were sleeping together was "not an issue." Inspector Howell said that he does not know why Chief Superintendent Mahoney said that and that it was an issue as far as he was concerned.

33 In order to amount to a contravention of s 22B(1)(b) (and therefore be conduct for which the respondent is vicariously liable under s 53), Inspector Howell’s questions must come within the definition of sexual harassment in s 22A. The questioning cannot be regarded as "an unwelcome sexual advance, or an unwelcome request for sexual favours" within s 22A(a). The issue is whether it is "unwelcome conduct of a sexual nature . . . in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated" pursuant to s 22A(b).

34 Based on the applicant’s evidence, the questioning was "unwelcome conduct" and can objectively be described as being of a "sexual nature." However, when the context of the questioning is taken into account, we are satisfied that a reasonable person would not have anticipated that the applicant would have been offended, humiliated or intimidated. The applicant volunteered that Tara Murray’s intentions towards her were different from her own intentions and asked Inspector Howell if he understood. The questions that followed were not gratuitous. They had an understandable purpose and it was reasonable for Inspector Howell to assume that the applicant would not have been "offended, humiliated or intimidated" by those questions.

35 Prostitution on campus. During the interview of 5 September Inspector Howell also asked the applicant about an incident where it was alleged that she had accepted a $50 note from a male student for sexual favours, at the front of an auditorium full of students. Inspector Howell said "Can you tell me about that?" The applicant responded to this by saying:

Yes. It was a joke because that’s what they were saying about me, right, so if that’s what they want to say, fine, I’ll do that. And it was a total joke and I gave him back the money

. . .

Well I wasn’t having sex with him for money, I wasn’t prostituting myself, all it is, is that no-one has listened to me and that’s what it takes to get attention to these matters, right.

36 The applicant asked Inspector Howell in cross-examination, why he assumed she was prostituting herself. Inspector Howell said that he needed to ask whether the $50 note incident was genuine because if she were prostituting herself on campus it would be relevant to her professional suitability to become a police officer. When asked why the male student involved was not interviewed, Inspector Howell said that it was a one-off incident in relation to him and that given other competing matters, it was not a priority.

37 Inspector Howell’s questions were unwelcome and can objectively be described as being of a "sexual nature." However, when the context of the questioning is taken into account, we are satisfied that a reasonable person would not have anticipated that the applicant would have been offended, humiliated or intimidated. It was the applicant who had set up the incident involving the $50 note in a misguided attempt to counteract rumours that were circulating about her. Inspector Howell was seeking to clarify whether or not those rumours were true.

38 Consequently, given that none of Acting Inspector Howell’s conduct falls within the definition of "sexual harassment" in s 22A, there has been no contravention of that provision for which the respondent could be vicariously liable under s 53.

39 Is the applicant a "workplace participant"? It is unlawful under s 22B(6) for a workplace participant to sexually harass another workplace participant. In order to be a "workplace participant" the applicant must be: an employer, an employee, a commission agent or contract worker, a partner in a partnership, a person who is self-employed or a volunteer or unpaid trainee. Apart from alleging that she was an employee, the applicant did not maintain that she fell within any of the other definitions of "workplace participant." She was paid to undertake the Diploma of Policing Practice course, so she was not a volunteer or unpaid trainee, neither does her position come within any of the other categories. We find that she was not a "workplace participant" and consequently her complaint of sexual harassment to the extent that it relies on s 22B(6), is dismissed.

Liability under s 22F – provision of goods and services

40 The applicant alleged that the respondent sexually harassed her in the course of providing her with services in breach of s 22F. "Services" are defined in s 4 of the AD Act to include:

(a) services relating to banking, insurance and the provision of grants, loans, credit or finance,

(b) services relating to entertainment, recreation or refreshment,

(c) services relating to transport or travel,

(d) services of any profession or trade,

(e) services provided by a council or public authority,

(f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.

41 This definition is not exhaustive. In accordance with the High Court’s dictum in IW v City of Perth, the word "services" is to be interpreted as having its ordinary and broad meaning. (IW v City of Perth & Ors [1997] HCA 30; (1997) 191 CLR 1 at 23.) In Commissioner of Police, NSW Police Service v Estate Edward John Russell & ors [2001] NSWSC 745 (31 August 2001) Sully J at [43] concluded that the Police Service of New South Wales, (now NSW Police) as established by s 4 of the Police Service Act, (now the Police Act 1990) is a public authority within the meaning of that term in s 4(e) of the AD Act. Services provided by police officers are therefore services provided by a public authority in the sense contemplated by the AD Act.

42 The appropriate respondents to any complaint that NSW Police, as a public authority, has discriminated in providing a service to a person, is either the individual police officer providing the service or the Crown (State of New South Wales). (See s 5(1) of the Crown Proceedings Act 1988.) If NSW Police, as a public authority, was providing services to the applicant then the respondent cannot be liable for any breach of the AD Act because the respondent is neither an individual police officer nor the Crown.

43 The question arises as to whether services were being provided to the applicant by NSW Police in its capacity as a public authority, or by the respondent in some other capacity. The applicant did not identify the nature of the service that was allegedly being provided to her or the identity of the person providing her with those services.

44 In IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17 Brennan CJ and McHugh J said that: "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". The identification of the relevant services is a question of fact. (Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 per McHugh J at 404.)

45 The Police Act 1990 establishes and sets out the functions of the NSW Police. Section 6(2) gives NSW Police the following functions:

(a) to provide police services for New South Wales,

(b) to exercise any other function conferred on it by or under this or any other Act,

(c) to do anything necessary for, or incidental to, the exercise of its functions.

46 In a publication entitled "NSW Police Academy – Goulburn Guide to Academy Services & Student Responsibilities" dated May, 2000 the organisational structure and the role of the Academy is set out. Although the applicant attended the Academy prior to the date of this publication, neither party submitted that there was any material difference in the structure or role of the Academy in 1999.

47 The Academy is headed by the Principal, Education Services. In 2000, the Principal was Chief Superintendent Reg Mahoney. The Academy has a senior management group and a staff of 265 people including 132 police personnel and 133 non-police personnel. At page 6 of this publication, the following passage appears:

The business of the Academy is education be it designed to meet the training and development needs of entry level practitioners, or the continuing specialist professional development needs of Service personnel.

The NSW Police Academy’s function is to offer, both singly and in concert with other tertiary providers, credible and reputable academic awards, while preparing professional operational and support officers.

48 At p 35 of the same publication the services provided to students by Education Services personnel and by CSU is set out:

A range of student services are offered by Education Services personnel including:

careers;

chaplaincy;

counselling;

cross-cultural and international support and advice;

health and medical services;

study skills; and

mentoring.

Charles Sturt University offers a range of services and support for Constable Education Program enrolees. In particular, the following assistance is available:

learning skills services;

personal counselling;

student equity and special needs;

financial advice and assistance.

49 We are satisfied that pursuant to s 6(2)(c) of the Police Act 1990, NSW Police is providing education services that are incidental to the exercise of its functions. In relation to students (including police personnel and non-police personnel) those education services include mentoring and counselling services. Sergeant Taunton and Acting Inspector Howell provided the applicant with these services. Neither of these officers was a respondent to the proceedings. In order to determine whether the respondent can be liable under the AD Act in relation to the provision of those services, we must decide who, apart from the individual police officers, provided those services. As NSW Police is not a legal entity, the Tribunal must determine whether the ultimate provider of those services is NSW Police as a public authority, (in which case the State of New South Wales is the correct respondent) or the Commissioner of Police as the employer of individual police officers. In our view, as the services in question are provided to employees and non-employees alike, and in accordance with the Court of Appeal’s decision in Russell (supra), the service provider is NSW Police as a public authority and the correct respondent is the Crown.

50 The Tribunal should consider the possibility of the State of NSW and/or Inspector Howell being joined as a party to these proceedings if the evidence discloses a prima facie case of sexual harassment against one or both of them. (See Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 [12] to [33].) We have already found that Acting Inspector Howell’s conduct does not constitute sexual harassment within the meaning of that term in s 22A. None of the other allegations against police officers occurred in the context of the provision of services. For example, one specific allegation against police officers was that "on one occasion before September 2000 when I was in the vicinity of the weapons instructor’s offices, I heard sworn officers discussing the various positions they would have sex with me on or around the police car." Consequently we do not intend to take any steps to have either Acting Inspector Howell or the Crown joined as a party to these proceedings. The respondent is not in breach of s 22F (because the Commissioner was not the service provider) so the applicant’s complaint to the extent that it relies on that provision, is dismissed.

Liability under s 22E – harassment at educational institutions

51 Under s 22E it is unlawful, among other things, for a member of staff or a student at an educational institution, to sexually harass a student of that institution. The respondent submitted that the applicant was a student at an educational institution, namely CSU. The applicant alleged that if she was not an employee of the respondent, she was a student of the respondent.

52 We deal firstly with the applicant’s submission that the respondent is an educational institution and that she is a student of that institution. Educational institution is defined in s 22E(4) to mean "a school, college, university or other institution at which education or training is provided." The Police Academy is described in the "Standing Directions Course Participants" document as "an educational facility". It is under the command of the Principal who has the rank of Chief Superintendent. The Academy, as part of NSW Police, provides education services to employees and non-employees. Giving the word "institution" a liberal interpretation, it can be regarded as an "institution" at which education or training is provided. Inspector Howell gave evidence that there are two categories of "students" who attend the Academy. The first category is police officers who are undertaking courses conducted by NSW Police. Those officers are not students of CSU. The second category is students of CSU who are undertaking the Diploma in Policing Practice course conducted by CSU. As the applicant was enrolled in the Diploma of Policing Practice course she was not a student of the Academy, but rather a student of CSU. Any sexually harassing conduct towards the applicant by a staff member or student of the Academy would not be a breach of s 22E because the applicant is not a student "at the institution."

53 The CSU is also an "educational institution" as it is a university at which education or training is provided. As a student of CSU, any sexual harassment by a member of staff or a student of CSU, towards the applicant is unlawful. While the respondent cannot be directly liable for a breach of s 22E (because the Commissioner is not a student or staff member of CSU) the applicant alleged that the respondent is liable for any breach of s 22E by virtue of s 52 or 53 of the AD Act.

54 Under s 53 a person is vicariously liable in certain circumstances for an act done by an agent or employee, if that act would have been a contravention of the AD Act if done by that person as the principal or employer. The respondent is not the principal or the employer of staff members or students of CSU. Consequently, the respondent cannot be vicariously liable for any breach of s 22E.

Liability under s 52 for a contravention of s 22E

55 Introduction. Under s 52 the respondent will have contravened the AD Act if he caused, instructed, induced, aided or permitted a student or a member of staff of CSU to sexually harass the applicant. In Cooper v Human Rights Commission [1999] FCA 180 [at 27] Madgwick J [1985] HCA 65; (1985) 158 CLR 661 observed that the first step in proving liability under s 122 of the Disability Discrimination Act 1992 (Cth) (which is in similar terms to s 52 of the AD Act) is to establish that there was an unlawful contravention of the relevant legislation. Consequently, the first question is whether the allegations of sexual harassment disclose an unlawful contravention of s 22E of the AD Act. There are two parts to that question. Did a student or staff member of CSU engage in the alleged conduct? If so, does that conduct fall within the definition of "sexual harassment" in s 22A?

56 Effect of the Deed of Release. The Deed of Release signed between the applicant and the CSU (referred to above in [3]) released the University and its employees, servants, agents and its adult students from "all actions, suits, causes of action, claims, demands, claims for costs or expenses." The Deed does not prevent the Tribunal from making a finding that a student or staff member of the CSU has contravened the AD Act. It merely means that the applicant cannot bring proceedings against such a person or make other demands on them.

57 Were students or staff members of CSU perpetrators? Each of the allegations of sexual harassment will be considered in turn to determine whether the applicant has proved, to the civil standard as expressed in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, that a student or member of staff of CSU was the perpetrator. The respondent maintained that the applicant was unable to name any student or staff member who allegedly harassed her and therefore there is no probative evidence that the people concerned were students or staff members of CSU. The applicant contends that she made exhaustive efforts to identify the people who harassed her and that in some cases she was able to name the alleged perpetrator. In particular, she named "a recruit named Ian" (in relation to incident (iii) set out at [10] above) Hope Brennan (in relation to incident (xi)) and "weapons instructors" (in relation to incident (xii)). The applicant says that there is ample evidence that the people involved were NSW Police recruits, serving police officers or servants or agents of NSW Police. Of course, if the perpetrators were serving police officers who were not staff of CSU, or servants or agents of NSW Police, (including Inspector Howell, other police officers and "weapons instructors") the respondent cannot be liable under s 52 for any breach of s 22E. Consequently the respondent is not liable under those provisions for incidents (vi), (vii), (xi) and (xii) listed above at [10].

58 Remaining allegations of sexual harassment. The applicant said that when she arrived at the Goulburn Police Academy on 5 September 1999 she noticed people laughing, staring and pointing at her when she was unloading her van. She could not identify any of the people concerned. She also noticed people staring at her when she was in the canteen having lunch.

59 When having dinner on 5 September 1999, the applicant said she overheard people referring to her as "the prostitute." Later that evening when continuing to unload her van she heard a group of about seven people from across the courtyard call her a "whore". She was not able to identify any of these people. She also overheard a conversation between two males outside her room that evening which included the comment: "She’s not worth it. I heard she’s a dyke." About a week later, the applicant again heard a person say "There’s that prostitute."

60 The applicant alleged that at a meeting with Inspector Connor, Sergeant Taunton and Sergeant Brunskill on 9 September 1999 she related the incidents of alleged harassment and described some of the people who had called her names. The applicant suggested that all students should wear name tags but said that her idea was not followed up. The applicant said that Inspector Connor told her that they could not do a "line up" and Sergeant Brunskill allegedly added that she had to expect some comments. The applicant says that as far as she knows, no action was taken in respect of any of these allegations, however she did agree that the Senior Class was spoken to about their conduct regarding students in general.

61 Following the meeting with Inspector Connor, Sergeant Taunton and Sergeant Brunskill, the applicant alleged that she heard a male refer to her van as the "Lube-Mobile." She took this to be a reference to the practice of prostitutes using lubricants. She also heard a person suggest that the closest brothel in Goulburn was "very close by".

62 Following the applicant’s re-enrolment at the Academy in May 2000 she says that she was called a "slut". On at least six occasions the applicant said she saw male students loitering outside her window. On one occasion she heard a male say "Hey, she is naked." The applicant says that she was not naked but fully clothed. The applicant says that she heard rumours, second hand, to the effect that she was being called an "ice-queen" and a "fucking stuck up bitch."

63 At various times between 1 June 2000 and late August 2000 the applicant said that she heard male students state that they were going back to their rooms to masturbate while thinking of her.

64 According to the respondent, it was not possible for them to investigate these and other allegations because the applicant could not identify any of the perpetrators. On the occasions when the applicant did identify the perpetrator, for example when a student made a comment after a class exercise where students made animal noises, the respondent investigated the complaint.

65 Inspector Howell was the Professional Standards Manager of the NSW Police Command Education Services at the time of the complaints. His responsibilities included managing complaints with respect to those police officers working in Education Services at the Academy and those police officers undertaking courses at the Academy. Inspector Howell gave evidence that from 14 June 2000 and December 2002 he had numerous conversations with the applicant in relation to complaints that she made about police officers and students. Based on the material annexed to Inspector Howell’s affidavit, we assume that the reference to 2002 was a typographical error and should have read "2000". He said that he told her that he was willing to make inquiries in relation to any complaint and that he did make such inquiries where appropriate.

66 Because of his responsibilities as Professional Standards Manager he made inquiries in relation to issues that the applicant raised with respect to the conduct of students and issues that students raised with respect to the conduct of the applicant. For example, in relation to the allegation that staff members had called her "the prostitute" Inspector Howell recorded in a memorandum dated 18 August 2000 that the applicant stated that she was aware of staff who knew the identities of the alleged offenders but would not name them. Inspector Howell said that the applicant agreed that it would be almost impossible to investigate the allegations without further information.

67 The applicant also alleged that police officers were entering the female towers late at night and engaging in sexual activities with students. During an interview, the applicant said that she knew who the culprits were but she did not want to tell anyone who they were at that time. No further information was provided.

68 According to Inspector Howell he took action in relation to the applicant’s complaints far beyond what was required of him. He spoke to students and to the applicant personally on numerous occasions and tried to resolve every complaint.

69 Were students or staff members involved? While there were numerous incidents where the applicant was not sure whether the alleged perpetrators were students, staff members or police officers, she did identify students or staff members of CSU as being responsible for:

· loitering outside her window and calling out "Hey, she is naked";

· saying they were going back to their rooms to masturbate while thinking of her;

· calling her "the prostitute"; and

· calling her a ‘fucking stuck up bitch’ and ‘ice-queen’.

70 None of the alleged perpetrators were identified by name apart from "Ian" in relation to incident (iii). In accordance with the principles in Briginshaw, we need to be satisfied, on the balance of probabilities, that these incidents took place. In coming to a view, we must take into account the nature and consequence of the facts to be proved including the seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding. The respondent did not challenge the applicant’s evidence except by highlighting the fact that in the majority of cases she could not identify the perpetrator by name. There was no suggestion that the applicant’s recollection of what occurred was not credible or reliable. In those circumstances, despite the seriousness of these allegations, we are comfortably satisfied, on the balance of probabilities, that these incidents took place.

71 In relation to the incidents where the applicant did not specify that students or staff members were responsible, the Tribunal cannot draw the inference that the perpetrators were students or staff members of CSU. There were approximately 132 police personnel and 133 non-police officers making up the staff of the Academy at that time. There was no evidence of how many people at the Academy were students of CSU and how many were police officers undergoing training. While it is possible that the alleged perpetrators in relation to the other incidents were students or staff members of CSU, we are not comfortably satisfied that they were.

72 Does the conduct fall within the definition of "sexual harassment" in s 22A? The second question to be answered when determining whether there has been a contravention of s 22E is whether the conduct of the students or staff members falls within the definition of "sexual harassment" in s 22A. The incidents listed above in [69] are "unwelcome conduct of a sexual nature" and a reasonable person, having regard to all the circumstances, would have anticipated that the applicant would be offended, humiliated or intimidated by that conduct. Consequently, in relation to those incidents, there has been a contravention of s 22F. The next question is whether the respondent is liable for such a contravention pursuant to s 52 of the AD Act.

73 Did the respondent "permit" the unlawful acts to occur? In order to be liable under s 52 for a breach of s 22F, the respondent must have caused, instructed, induced, aided or permitted a student or staff member of CSU to contravene the AD Act. There was no evidence that the respondent caused, instructed, induced or aided such a person to contravene the Act. The only possibility is that the respondent "permitted" such a person to contravene the Act. Counsel for the respondent submitted that the Commissioner of Police did not permit any contravention and that the proper construction of s 52 of the AD Act requires a party to a contravention to be an intentional participant. (Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 at 670.)

74 In Cooper v Human Rights and Equal Opportunity Commission, [1999] FCA 180 Madgwick J rejected the argument that the equivalent provision to s 52 in the Sex Discrimination Act 1984 (Cth) required the applicant to prove intention on the part of the respondent. Madgwick J distinguished Yorke v Lucas (supra) on the basis that the legislation under consideration in that case used the phrase "aids, abets, counsels or procures". While that phrase is used in the criminal law, s 105 of the Sex Discrimination Act 1984 does not use those words and accordingly should not be interpreted as requiring intention to be proved. Similarly, s 52 does not use concepts drawn from the criminal law and should not be interpreted as requiring intent.

75 In Dixon v RNJ Sicame Pty Ltd & anor; Sims v RNJ Sicame Pty Ltd & anor [2002] NSWADT 154 revised - 11-Sep-2002 this Tribunal undertook a comprehensive analysis of the authorities dealing with s 52 and its equivalent in federal human rights legislation. We agree with and adopt the Tribunal’s analysis. In particular, the Tribunal accepted the reasoning of Knox CJ in The Corporation of the City of Adelaide v Australasian Performing Rights Association Ltd [1928] HCA 10; (1928) 40 CLR 481 at 487) as to the meaning of "permits":

I agree with learned judges of the Supreme Court in thinking that indifference or omission is "permission" within the plain meaning of that word where the party charged (1) knows or has reason to anticipate or to suspect that the particular act is to be or is likely to be done, (2) has the power to prevent it, (3) makes default in some duty of control or interference arising under the circumstances of the case, and (4) thereby fails to prevent it. This statement of the legal position was not challenged in argument before this Court.

76 Did the respondent suspect that the acts were likely to be done? On the basis of all the evidence, the respondent knew that the applicant was likely to be subjected to sexually harassing conduct. She complained about that conduct and it was reasonable for the respondent to anticipate that such conduct would be repeated.

77 Did the respondent have power to prevent the acts? The answer to this question depends on the relationship between the respondent and the students and staff members of CSU. NSW Police and CSU have agreed that all students in the Diploma of Policing Practice course are subject to the laws and rules of the University in respect of academic misconduct and general misconduct. Section 9(1A) of the Charles Sturt University Act 1989 provides that the Council of the University is the governing authority of the University. Section 12(3) of that Act provides that the Vice-Chancellor is the principal executive officer of the University. Clause 41(2) of the Charles Sturt University By-law 1995 provides that:

The Vice Chancellor is responsible to the council for the day-to-day management of the University and, in particular, for:

(a) the academic, administrative, financial and other business of the University, and

(b) the general supervision of all persons in the service of the University, and

(c) the welfare and discipline of the students of the University.

78 The applicant tendered the NSW Police Academy "Guide to Academy Services and Student Responsibilities" dated May 2000. That publication makes it clear that when at the Academy in Goulburn, all police and non-police personnel are bound by the Standing Directions, which include rights and responsibilities under the AD Act. At page 50 of that publication, there is a section headed "General Behaviour" which states, in part, that:

Behaviour must always meet with the approval of the Principal, Education Services. The Principal, Education Services or nominee shall be the final judge of acceptable or non-acceptable standards of behaviour in the residence. Students, who fail to conform to expectations, may be summarily directed to vacate their rooms.

79 The applicant submitted that this provision means that the Principal has the final say in relation to student behaviour. Inspector Howell gave evidence that this was correct in relation to some kinds of behaviour, but other behaviour was governed by the By-Laws referred to above. At pages 38 to 46, the "Guide to Academy Services and Student Responsibilities" sets out the Academy’s position on "Student Grievances, Unfair Treatment and Sexual Harassment." At page 45 it is noted that:

Constable Education Program (CEP) participants may approach any of the following individuals or areas in seeking assistance and lodging complaints:

Mentors

Any of the tutoring staff;

The subject/course co-ordinators;

Student representatives;

Anti-Discrimination Board; and

Human Rights and Equal Opportunity Commission.

80 The applicant’s mentor was Sergeant Taunton. The applicant complained to him about incidents of sexual harassment. The applicant tendered a copy of the third edition of the Standing Directions Course Participants of the NSW Police Academy. That publication makes it clear that the Principal of the Academy is the final decision maker in relation to how to deal with behaviour of non-police personnel using the facilities of the Academy.

81 It is apparent from the evidence that the Principal of the Academy has the ultimate responsibility for dealing with behaviour of police and non-police personnel at the Academy. In particular, it was ultimately the Principal’s responsibility to address any sexually harassing behaviour.

82 Did the respondent default in some duty of control or interference? The critical question is whether, having the power to address complaints of sexual harassment and to take action to prevent harassment from occurring, the respondent failed to do so thereby defaulting in some duty of control or interference? The respondent’s evidence is that:

· Sergeant Taunton was allocated to act as the applicant’s mentor;

· Sergeant Taunton met with the applicant on 5 September 1999;

· Sergeant Taunton contacted the applicant on 7 September 1999, after she left the Academy and discussed what could be done about students who caused her problems;

· Sergeant Taunton spoke to several students and asked them to give the applicant support, especially around meal times and after hours;

· The applicant met with Sergeant Taunton, Sergeant Brunskill and Inspector Connor on 9 September 1999 in relation to the allegations of sexual harassment;

· On 9 September 1999 Sergeant Taunton and Inspector Barron spoke "at great length" to all trimester three and the graduate classes (400 students in all). Inspector Barron emphasised the need to treat people equally and that any form of harassment would not be tolerated.

· On 17 September 1999 the applicant and her solicitor met with Chief Superintendent Mahoney (Principal, Education Services), Mr Parker (course co-ordinator, Diploma of Policing Practice), Mr Chambers and Mr Greig (Director, Industrial Relations Directorate, NSW Police) to discuss the harassment she was experiencing. Arrangements were made to defer admission to the University Diploma Course until January 2000.

· Inquiries were conducted and investigations carried out on occasions when the identity of the alleged perpetrators was able to be ascertained; on other occasions complaints made by the applicant were not pursued at her request.

· In August 2000 Inspector Howell wrote to the applicant setting out the results of investigations he had carried out into her complaints.

· Offers were made to the applicant for her to live off campus but she declined those offers.

83 The applicant maintains that the respondent should have:

· made students wear name tags so that they could be identified;

· been more proactive in attempting to identify people who she complained about;

· taken preventative action to avoid harassment; and

· carried out thorough investigations of all complaints she made.

84 In a letter of 1 September 2000 the applicant acknowledged that "when I have lodged complaints against Police recruits, the Service has directly approached those involved." (The applicant was contrasting this situation with the situation when complaints were made about her.)

85 Decision on whether respondent "permitted" sexually harassing conduct. We have reviewed all the evidence including the evidence summarised above. Despite the applicant’s submissions that the respondent could have done more to address her concerns and to prevent the harassment from continuing, the evidence demonstrates that the respondent went to considerable lengths to respond to the applicant’s allegations and to prevent further harassment from occurring. In those circumstances, we are satisfied that the respondent did not "permit" another person to do an act that was unlawful.

Allegations of sex and homosexuality discrimination

86 The applicant claimed that she had been discriminated against on the ground of her sex and homosexuality. The acts of sex discrimination included those matters of sexual harassment set out above at [10]. She alleges that the respondent had discriminated against her on the ground of sex in breach of s 25(b) (sic), 31A and s 33. In addition, the applicant alleged that the respondent discriminated against her on the ground of assumed or actual homosexuality in breach of s 49ZH(2). The particulars of this ground are that Acting Inspector Howell required her to answer questions as to whether she was having sex with a fellow female recruit when similar questions about other persons who were imputed to be heterosexual were not asked. Secondly, the applicant was subject to references from staff and students describing her as a "dyke" and an "ice-queen."

87 There is no s 25(b) of the AD Act, however s 25(1)(b) states that:

(1) It is unlawful for an employer to discriminate against a person on the ground of sex:

(b) in determining who should be offered employment.

88 As none of the allegations made by the applicant relate to determining who should be offered employment, the applicant’s complaint, in so far as it relies on a breach of s 25(1)(b), is dismissed. It is likely, given her other submissions, that the applicant also intended to allege that the respondent was in breach of s 25(2)(a) which makes it unlawful for an employer to discriminate against an employee on the ground of sex:

in the terms or conditions of employment which the employer affords the employee.

89 Given our previous finding that the applicant is not an employee of the respondent, the applicant’s complaint in so far as it relies on a breach of s 25(2)(a), is also dismissed. Similarly, because s 49ZH(2) relates to homosexual discrimination by an employer against an employee, a complaint based on that provision is not substantiated.

90 Section 31A makes sex discrimination by an educational authority unlawful in certain circumstances. It provides that:

(1) It is unlawful for an educational authority to discriminate against a person on the ground of sex:

(a) by refusing or failing to accept the person’s application for admission as a student, or

(b) in the terms on which it is prepared to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of sex:

(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or

(b) by expelling the student or subjecting the student to any other detriment.

91 The applicant did not specify which of these provisions she was relying on. An "educational authority" (as distinct from an "educational institution") is defined in s 4 to mean:

a person or body administering a school, college, university or other institution at which education or training is provided.

92 Even if the respondent (through the Principal, Education Services) is a person administering an institution (the Academy) where education or training is provided, since the applicant was not a student of that institution, none of the provisions of s 31A can have been breached in the circumstances of this case.

93 Section 33 makes it unlawful for service providers to discriminate on the grounds of sex. That provision states that:

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

(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.

94 As neither the Crown, nor individual police officers, is a respondent to these proceedings and there is no prima facie case against either of those entities justifying their joinder (see [50]) a complaint relying on a breach of s 33 cannot be substantiated.

Orders

1. The complaints are dismissed.