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PARIAH
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Below is an unexpurgated
copy of a Hearing by the Northern Territory
Anti-Discrimination Commission.
PARIAH-Note.
1. Serious accusations against the NT Police Officer charging the Aboriginal Community Government Council of Kunballanjnja with victimisation...
o "Mr Funnell had entered peoples homes without permission". Mr Kairupan gave evidence variously that he had first heard of this allegation either 2 weeks or 12 months prior to the date of the hearing (ie in September 1996)
o "He had fired shots chasing people around". Again Mr Kairupan said that he had first heard of this allegation some 2 weeks prior to the hearing.
o "bashing incidents" Mr Kairupan said that he first heard of this one month before the hearing.
...were simply glossed over by the ADC Commissioner. "In addition various people have had various (and different) minor gripes that probably exist in all relationships between Police and communities."
Imagine the consequences of PARIAH members firing pistols and invading people's homes (or even allegations of it) in a non-Aboriginal community.
2. How did this case 'get up?' PARIAH's complaints against the (non-Aboriginal) Cox Peninsula Community Government Council (and others) are a thousand times more substantive - in the Respondent's contradictory statements alone - yet PARIAH can't get one complaint accepted.
Northern
Territory
Anti-Discrimination Commission
Funnell v Kunballanjnja Community Government Council No. 3 of 1996 [1997] 1 NTADC (9 May 1997)
NORTHERN TERRITORY
COMPLAINANT: BRETT FUNNELL
RESPONDENT: KUNBALLANJNJA COMMUNITY
GOVERNMENT COUNCIL
NUMBER: 3/1996
HEARING COMMISSIONER: ROBERT BRADSHAW
COUNSEL ASSISTING: TONY YOUNG
COUNSEL FOR
THE COMPLAINANT: LYN BOND
COUNSEL FOR THE
RESPONDENT: JOHN DUGUID
GROUNDS OF COMPLAINT: VICTIMISATION - SECTION 23 OF
THE ANTI-DISCRIMINATION ACT
DATE OF DECISION: 9 MAY 1997
Senior Constable Brett Funnell v Kunbarllanjnja Community Government Council
What is the complaint?
Snr Constable Bruce Funnell has complained to the Anti Discrimination Commissioner that he has suffered detriment because the Kunbarllanjnja Community Government Council victimised him.
The alleged victimisation is that the Kunbarllanjnja Community Government Council complained to senior police officers and others about the fact that Snr Constable Funnell had previously lodged a complaint of discrimination against the Kunbarllanjnja Community Government Council.
The alleged detriment is that Constable Funnell was notified of his transfer (in November 1995) and was later transferred (July 1996). This notification and then actual transfer is said to have caused monetary loss as well as stress, anxiety and feelings of uncertainty.
The hearing of the complaint.
The hearing of this complaint was conducted at Kunbarllanjnja (formerly known as Oenpelli), NW Arnhem land on 2 and 3 September 1996. At the hearing evidence was given by Senior Constable Funnell, Superintendent McCadie (who at the time was Senior Constable Funnell's immediate supervisor), Commander Burgdorf (who at the time was Superintendent McCadie's supervisor), Constable Nixon (who both at present and at the time of the complaint was the other police officer at Kunbarllanjnja), Lother Siebet (an elected and executive member of the Kunbarllanjnja Community Government Council) and Tom Kairupan (town clerk for the Council).
The other key players in the chain of events were unavailable through either death (in the case of the former President of the Council) or because they were not called by the parties, could not be located or were perhaps unwilling to be of assistance. These people included John Pianta and Mike Owen.
Outline of the history of events
Snr Constable Funnell is a police officer who worked as the Officer in Charge at Kunbarllanjnja for the period from November 1992 until June 1996. He was responsible for a station comprising one other police officer and a number of police aides.
Until the time of the local government elections (mid 1995) there were, to the outside world, no obvious signs of out of the ordinary tension between Snr Constable Funnell and either the local community or the Kunbarllanjnja Community Government Council.
This lack of any obvious tension is illustrated by the September 1995 supervisor's report given by Superintendent McCadie concerning Snr Constable Funnell. In this report Superintendent McCadie commended Senior Constable Funnell for "being respected within the community at Kunbarllanjnja. He enjoys good relationships with the local aboriginal community and has developed good cross cultural skills".
These views were confirmed in evidence given at the hearing by Superintendent McCadie. Superintendent McCadie said that he formed his positive views about the cross cultural skills of Snr Constable Funnell when he talked to a "fairly wide cross section of people" at the formal opening of the police station. These views of Superintendent McCadie can, however, be contrasted with evidence given by the former Town Clerk, Mr Kairupan. He listed the following incidents (as told to him by a member of the community):
o "Mr Funnell had entered peoples homes without permission". Mr Kairupan gave evidence variously that he had first heard of this allegation either 2 weeks or 12 months prior to the date of the hearing (ie in September 1996)
o "He had fired shots chasing people around". Again Mr Kairupan said that he had first heard of this allegation some 2 weeks prior to the hearing.
o "bashing incidents" Mr Kairupan said that he first heard of this one month before the hearing.
In addition Mr Kairupan mentioned the following:
o police failing to act in response to problems at the club. No real details were provided by Mr Kairupan
o criticisms of the Police in the Gumbung report. Again no evidence was provided that links the alleged criticism to the writing of the letter or the discussions with the Police.
o letter from Snr Constable Funnell setting out the Police position dealing with call outs concerning nurses in dangerous positions. Under cross examination Mr Kairupan could not identify any actual problems with this letter.
o lack of police support in dealing with the problem of petrol sniffing. Mr Kairupan advised that he had never taken this matter up with the Police because he considered it to be a community matter.
o failure to organise fire drills for the use of the fire engine. Again, Mr Kairupan did not complain about this to the Police and when asked why (by Counsel assisting) said ".....general feeling that Mr Funnell was superior".
o picking on the Council in respect of minor traffic offences (eg cracked windscreen, driving of unregistered rider-mower on the road)
o following the complaint to the Anti-Discrimination Commissioner people were too frightened to walk the streets
o firing of a pistol during a disturbance
Other possible occasions were cited as follows:
o involvement in local controversy over the running of the health centre. Commander Burgdorf gave evidence that he formed, at the November meeting with John Pianta, the view that Snr Constable Funnell may have been involved in a conflict over the issue of the transfer of responsibility of the health clinic from the Territory Government to the Community Government. Mr Lother Siebet, a member of the community, gave evidence to the effect that there was no involvement of Snr Constable Funnell in the health centre dispute. It can be noted that Senior Constable Funnell now believes that there was a community perception that he was against the Council taking over the health clinic. In this regard Commander Burgdorf gave evidence that he had received some kind of complaint from Dr Mike Owen, an employee of the Kunbarllanjnja Community Government Council. This complaint came to nothing.
o involvement in factional infighting. Commander Burgdorf formed the perception that there was factional infighting at Kunbarllanjnja and that Constable Funnell was involved with one group and the Council with the other group.
o underlying friction arising from action taken a few years ago to remove the takeaway licence held by the Sports and Social Club. Senior Constable Funnell stated that this friction existed. The existence of this friction was also confirmed by Lother Siebet, a former close friend of Snr Constable Funnell.
In mid 1995 local government elections were conducted by the NT Electoral Commissioner. In the course of these elections there was some kind of dispute about the right of Snr Constable Funnell to vote at the elections. This dispute stemmed from the fact that only people who have lived in the area for 5 years or who are members of a local clan are entitled to vote.
No evidence was given at the hearing about the nature of this dispute or as to the people who were involved. In any event on 27 July 1995, Snr Constable Funnell complained to the Anti-Discrimination Commissioner that he had been discriminated against on a racial basis in so far as he had been denied a vote by the NT Electoral Commissioner.
On or about 10 October 1995, this first complaint was dismissed under section 102(c) of the Act by the Delegate of the Anti-Discrimination Commissioner. The reason being that the electoral scheme was authorised by an Act of the Northern Territory Parliament and was thus outside the scope of the Act - see section 53(a) of the Anti-Discrimination Act.
By letter dated 27 October 1995 a man who is now deceased but whom at the time was the President of the Council wrote to Snr Constable Funnell's immediate Superior, Superintendent McCadie. This letter was in the following terms:
"Unfortunately since the arrival of Snr Constable Funnell there has been continuous friction ranging from petty annoyance to serious confrontation. Recent notable instances include his:-
o writing to the Ombudsman to complain against being prevented from voting in Local Government elections. This despite being advised by the Electoral Officer of his ineligibility on the grounds of no being a member of a clan group and not having been a permanent resident of Kunbarllanjnja during the proceeding five-year period as required and
o writing to the Commonwealth Discrimination Board sighting (sic) the Kunbarllanjnja town clerk, Mr Kairupan, as having discriminated against him by not permitting him to vote at the said council elections despite said elections having been conducted by the NT Electoral Office in accordance with the NT Local Government Act. The issue was dismissed under section 52 of the relevant Commonwealth legislation.
Council has resolved therefore to request that Snr Constable Funnell be re-deployed to a post where his opinions do not run so contrary to those of the people whom he is charged to serve."
A copy of this letter was also sent to the Chief Minister of the Northern Territory, the Hon Shane Stone MLA. Mr Stone was (and remains) also the Minister for Police.
In respect of this letter it should be noted that there is no evidence of any involvement of the Ombudsman or the Commonwealth anti discrimination authorities.
The letter of 27 October 1995 was discussed in early November 1995 by Superintendent McCadie (who, at the time, was in charge of the Northern Division [which included Kunbarllanjnja]of the Central Region) with his superior officers - including Commander Burgdorf (who was in charge of the whole of the Central region).
As a result Superintendent McCadie wrote to the Council seeking a meeting. This meeting did not take place as, in the meantime, Commander Burgdorf visited Kunbarllanjnja on or about 13 November 1995 and spoke with John Pianta. At that time Mr Pianta was the acting town clerk. Most of the other key participants - ie the town clerk (Tom Kairupan), the former President and Lother Siebet - were, at this time, out of town and in attendance at a major local government conference in Canberra.
On the basis of that interview with John Pianta Commander Burgdorf formed the opinion that Snr Constable Funnell was perceived as being involved in conflict in the community. Accordingly he advised his superior (Assistant Commissioner Chalker). As a consequence the decision was made by the Police that Snr Constable Funnell be transferred out of the community. Snr Constable Funnell was advised of this on or about 20 November 1995 by Superintendent McCadie.
Following this there were various meetings between Snr Constable Funnell and senior police officers concerning the timing and manner of the transfer.
On 29 March 1996 Police Deputy Commissioner Moore advised Constable Funnell that in mid June 1996 he would be transferred from Kunbarllanjnja to a police station in the Darwin region (either Darwin station or Casuarina station). This transfer actually took place on 1 July 1996.
Statement of the complaint
Constable Funnell seeks an order seeking compensation for loss and damage (as referred to in section 88 of the Act) and for costs (as referred to in section 96(2)) in respect of the following:
1. The letter caused an investigation by senior police officers based on unsubstantiated allegations reflecting unfavourably on Constable Funnell's conduct and character.
2. By sending a copy of the letter to the Chief Minister of the Northern Territory Constable Funnell's reputation was damaged, his continuing employment as officer-in charge of Kunbarllanjnja Community Government Council Police Station was brought into question and his position as the Chairman (sic) of the Jabiru branch of the Country Liberal party was compromised.
3. Constable Funnell's performance at a promotion board's interview panel on 20 November 1995 was detrimentally affected due to distress and inability to concentrate following being advised of the fact of the letter from the former President of the Council.
4. Constable Funnell was seeking a transfer by way of promotion to a position acceptable to him, not as a compulsory move. The career prospects of Constable Funnell have been affected, reducing the likelihood of promotion in the near future with consequent loss of earnings.
5. Future loss of call-out overtime earnings as officer in charge of a remote police station.
6. Stress, anxiety and feelings of insecurity caused by the uncertainty over several months as an outcome of the outcome of the transfer proposals and the date of the transfer.
It should be noted that the consequences (if any) of the copying of the former President's letter to the Chief Minister were not the subject of any evidence at the hearing. Accordingly, I take the view that Senior Constable Funnell has not satisfied me that the mere copying of the letter to the Chief Minister has caused him any actual detriment.
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