IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992
Number of pages - 8
Commissioner Peter Martino
PERTH, 8 December 1999 (decision)
Ms Philippa Harrison of Sussex Street Community Law Service Inc. for the complainant
Mr Alan Sefton of the Crown Solicitor's Office for the respondent
Commissioner Peter Martino:
By a complaint dated 31 March 1998 lodged with the Human Rights and Equal Opportunity Commission ("the Commission") on 8 April 1998 and made by the complainant on his own behalf, the complainant claimed that he had been the subject of direct and indirect discrimination against him in the area of his employment as a police officer contrary to sections 5 and 6 of the Disability Discrimination Act 1992 (Cth) ("the DDA").
The complaint was responded to by a letter dated 31 August 1998 from the Director, Human Resources, Western Australian Police Service. The respondent denied that the complainant had been subject to any unlawful discrimination.
By letter dated 18 December 1998 the respondent requested pursuant to section 71(2) of the DDA that the Acting Disability Discrimination Commissioner ("the Commissioner") cease to inquire into the complainant's complaint. The basis of the request was that the alleged acts were not unlawful under a provision of Part 2 of the DDA and that the complaint was misconceived and lacked substance. The argument which supported this request was that the complainant was not an employee and nor was the Commissioner of Police, the Western Australian Police Service or any other body the complaint's employer.
An attempt to settle the complaint by conciliation was not successful and on 25 February 1999 the Commissioner referred the complaint to the Commission for inquiry in accordance with section 76 (1) of the DDA.
2. DIRECTION REGARDING PRELIMINARY ISSUE
On 14 September 1999 Commissioner Innes made the following direction:
That the preliminary issue of the relationship between the complainant and the respondent, and whether it is an employment relationship in terms of the DDA be determined prior to any further directions.
Commissioner Innes also made directions for the provision of written submissions. Those submissions, being the complainant's undated submissions, the respondent's outline of submissions dated 1 November 1999 and the complainant's submissions in reply dated 15 November 1999, have been received. Both parties have confirmed that on this preliminary issue they do not wish to make any oral submissions and wish the preliminary issue to be decided on the written submissions provided.
3. RELEVANT LEGISLATIVE PROVISIONS
3.1 The DDA
As I have mentioned the complainant claimed in his complaint that he had been the subject of direct and indirect discrimination contrary to sections 5 and 6 of the DDA. The statement of complaint contended that the discrimination had occurred in his occupation as a police officer.
Sections 5 and 6 of the DDA define direct discrimination and indirect discrimination respectively but do not themselves prohibit any conduct. The prohibitions are contained in Part 2 of the DDA. In the complainant's submissions it is the prohibition contained in section 15 (2) of the DDA that is relied upon. Section 15 (2) provides:
It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates:
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
3.2 The Police Act 1892 (WA)
Section 7 (1) of the Police Act 1892 (WA) ("the Police Act") provides:
The Commissioner of Police may appoint so many non-commissioned officers and constables of different grades as he shall deem necessary for preservation of peace and order throughout the said State, subject, however, to the approval of the Governor; and such non-commissioned officers and constables shall have all such powers and privileges, and be liable to all such duties and obligations as any constable duly appointed now or hereafter may have, or be liable to, either by the common law, or by virtue of any statute law now or hereafter to be in force in the said State.
Section 10 of the Police Act provides:
No person shall be capable of holding any office, or appointment in the Police Force, or of acting in any way therein, until he shall have subscribed the following engagement, namely -
I, A.B., engage and promise that I will well and truly serve our Sovereign Lady the Queen, in the office of [Commissioner of Police, inspector, sub-inspector, or other officer, or constable, as the case may be], without favour or affection, malice, or ill will, until I am legally discharged; that I will see and cause Her Majesty's peace to be kept and preserved, and that I will prevent, to the best of my power, all offences against the same; and that, while I shall continue to hold the said office, I will, to the best of my skill and knowledge, discharge all the duties thereof faithfully according to law.
Section 11 of the Police Act provides:
Every person, on subscribing such engagement, shall be thereby bound to serve Her Majesty as a member of the Police Force, at the current rate of pay for such member, and until legally discharged, from the day on which such engagement shall have been subscribed: Provided that no such engagement shall be set aside for the want of reciprocity: Provided further, that such engagement may be cancelled at any time by the lawful discharge, dismissal, or removal from office of any such person, or by the resignation of any such person being accepted by the Commissioner of Police.
4.1 The relationship between the complainant and the respondent at common law
The provisions of the Police Act show that the appointment of a police officer is an appointment to that office as understood at common law. At common law a police officer is the holder of a public office: Attorney General (NSW) v Perpetual Trustee Co Ltd (1955) 92 CLR 113. The relationship between the complainant and the respondent is not that of an employee and employer at common law.
4.2 Whether the application of section 15 of the DDA is limited to persons in the relationship of employee and employer at common law
In Konrad v Victoria Police (State of Victoria) (1999) 165 ALR 23 ("Konrad") the Full Court of the Federal Court of Australia held that while police officers in Victoria were not employees of the Crown or the State at common law, they were employees in the sense contemplated by Division 3 of Part VIA of the Industrial Relations Act 1988 (Cth). While that decision concerns different legislation to that under consideration in this complaint it follows from the reasons of the Full Court that the fact that a police officer is not an employee at common law does not necessarily determine that a police officer is not an employee for the purposes of legislation.
Neither the word "employer" nor the word "employee" is defined in the DDA. Employment is defined in section 4 as including:
(a) part-time and temporary employment; and
(b) work under a contract for services; and
(c) work as a Commonwealth employee; and
(d) work as an employee of a State or an instrumentality of a State.
Given the broad definition of employment in section 4 and the fact that the definition is not exclusive, I am of the view that the definition can be considered to encompass the nature of the relationship between the complainant and the respondent in this matter. The general nature of this relationship is described by Justice Finkelstein in Konrad as follows (at 52):
In almost all respects a member of the police force is in the same position as any other employee of the Crown. He is subject to the direction and control of the Crown, although he acts "independently" in the manner in which he carries out certain duties. He is paid a regular wage and makes no profit. He is provided equipment to carry out his duties. His position, nowadays at least, is permanent. He is entitled to holidays, sick leave and other entitlements afforded generally to employees.
In addition, section 3 of the DDA provides that the objects of the Act are:
(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
(i) work, accommodation, education, access to premises, clubs and sport; and
(ii) the provision of goods, facilities, services and land; and
(iii) existing laws; and
(iv) the administration of Commonwealth laws and programs; and
(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.
The use of the word "work" in section 3(a)(i) is in my view also significant. It indicates that it is a person's activity rather than whether that person is in a relationship of employee and employer at common law with which the DDA is concerned.
Section 15 of the DDA is one of the "limited application provisions" as defined in section 12 of the DDA. Section 12 (8) of the DDA provides:
The limited application provisions have effect in relation to discrimination against a person with a disability to the extent that the provisions:
(a) give effect to the Convention; or
(b) give effect to the Covenant on Civil and Political Rights; or
(c) give effect to the International Covenant on Economic, Social and Cultural Rights; or
(d) relate to matters external to Australia; or
(e) relate to matters of international concern.
The Convention is defined in section 4 of the DDA as follows:
Convention means the Discrimination (Employment and Occupation) Convention, 1958 adopted by the General Conference of the International Labour Organization on 25 June 1958, a copy of the English text of which is set out in Schedule 1 of the Human Rights and Equal Opportunity Commission Act 1986.
Article 2 of the Convention provides:
Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.
Article 1 paragraph 3 of the Convention provides:
For the purpose of this Convention the terms "employment" and "occupation" include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment.
I interpret Article 2 of the Convention as being an undertaking to promote a policy of eliminating discrimination in respect of employment and occupation which undertaking is not limited to the relationship of employee and employer as understood in the common law of Australia. The convention is an international agreement the application of which is not limited to common law countries. It is concerned with "occupation" as well as "employment".
It is my view that section 15 of the DDA should be interpreted as applying to a person's occupation and should not be limited to a person in a relationship of employer and employee as that relationship is understood in Australian common law.
It is my view therefore that the relationship between the complainant and the respondent is an employment relationship for the purposes of section 15(2) of the DDA.
5. FURTHER DIRECTIONS
I direct that this matter be set down for a telephone directions conference at 2.30pm (Perth time) on Monday 20 December 1999 in order to set a timetable for the preparation of the matter for hearing.