Donnelly v State of Queensland & Ors [2026] QCAT 323

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Donnelly v State of Queensland & Ors [2026] QCAT 323 PARTIES: CAROLYN DONNELLY (applicant) v STATE OF QUEENSLAND (first respondent) DAVEN RICHARDS (second respondent) JOSHUA MCLENNAN (third respondent) BRENDAN RODHAM (fourth respondent) TONI POLI (fifth respondent) ANN-MARIE SIMMONS (sixth respondent) APPLICATION NO/S: ADL063-23 MATTER TYPE: Anti-discrimination matters DELIVERED ON: 6 July 2026 HEARING DATE: 2 June 2026 HEARD AT: Brisbane DECISION OF: Member Richard Oliver ORDERS: The referral is dismissed. CATCHWORDS: ANTI-DISCRIMINATION – PRESUMED ATTRIBUTE – LESS FAVOURABLE TREATEMENT – where applicant contacted local police about her concerns of being stalked and cyber-stalking – where police attended the applicant’s property and spoke to her to gather evidence – where limited evidence available to support the applicant’s concerns – where general discussion about the applicant’s well-being – where applicant anxious and stressed about ongoing interference with her electronic devices and intrusion to her property – where conversations with police officers recorded on body worn camera’s – where reports filed in official police records of interaction with the applicant – where express reference to mental health issues – where applicant contends she was treated less favourably because of her presumed mental health issues – whether -- 1 of 16 -- 2 officers presumed she had an impairment or attribute – whether in fact the applicant was treated less favourably on the basis of the information and evidence she was able to provide police – whether police offices engaged in discriminatory conduct HUMAN RIGHTS – BREACH – where reports on police records refer generally to the applicant’s mental health – where information sourced from the applicant – where police officers are required under Operational Procedure Manuals to record information subsequent to the interaction with the application when investigating her complaints of stalking – where applicant claims she did not give permission to police to record information about her mental health – where alleged police acted or made a decision without her consent – whether recording information is an ‘act’ within s 53 of the Human Rights Act 2019 – whether the recording of information concerning the applicant’s mental health is a ‘decision’ within s 53 of the Human Rights Act 2019 – whether respondents breached the applicant’s human rights Anti-Discrimination Act 1991, s 7, s 8, s 10, schedule 1 Human Rights Act 2019, s 15, s 58 Owen-D’Arcy v Chief Executive, Queensland Corrective Services (2021) QdR 250. Patarroyo v Simmonds [2023] QCAT 67 Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33. Woodforth v State of Queensland [2017] QCA 100 APPEARANCES & REPRESENTATION: Applicant: Self-represented First and sixth Respondent: S A Mackie, with O Fitzgerald, instructed by Crown Law Second, third, fourth and fifth Respondent: M Black, with A Waite, instructed by Gnech & Associates REASONS FOR DECISION Introduction [1] Ms Donnelly claims that she has been discriminated against by the respondent officers of the Queensland Police Service (‘QPS’) when they investigated her complaints about being stalked, including cyber-stalking, by a local man in the area in which she lived. The substance of her claim is that the officers presumed she had a mental health condition (attribute) and because of that they treated her less favourably than a person without that condition in the manner in which they conducted the investigation into -- 2 of 16 -- 3 her complaints. In other words, had she not presented to them with what they presumed to be mental health issues their investigation of her complaints would have been more thorough. [2] She also claims that the respondents breached her human rights in recording information about her mental health in official police records without her consent. [3] At the time of these events each of the respondents were sworn officers in the QPS. Senior Constable McLennan and Constable Rodham were, at relevant times, attached to the Rosedale Police Station. Sergeant Richards was from Mirriam Vale Police Station and came to Rosedale to assist Senior Constable McLennan. Senior Constable Simmons was a general duties officer at Bundaberg Police Station working in the Vulnerable Persons Unit. Senior Sergeant Poli was stationed at the Tannum Sands Police Station and dealt with Ms Donnelly’s formal complaint about her interactions with Constable Rodham. As a result of concessions made during the hearing, Ms Donnelly does not maintain her claim of discrimination against Richards, Simmons and Poli. [4] With no disrespect to the respondent police officers, I propose to refer to them as ‘officer’ without reference to their ranks because they have changed over the years and Ms Simmons has retired from the QPS. The only officers required for cross- examination at the hearing were McLennan, Rodham and Simmons. [5] Ms Donnelly contends that the State of Queensland is liable for any discriminatory conduct, if found, and any damages or orders that might be made in Ms Donnelly’s favour Some Background [6] In or about mid 2015 Ms Donnelly moved onto a rural block of land at Mount Martha, an area just to the north-west of the small township of Rosedale. Geographically that is to the north-west of Bundaberg. Her intention was to build a new house on the block (referred to a ‘bush block’). At that time, she met up with a local man (‘the third party’) to have some repair work done to her vehicle. They developed a friendly relationship over the ensuring months extending into the early part of 2016. As the friendship was developing, Ms Donnelly became aware that the third party was not a single man, as she had assumed, so she terminated the relationship. During her evidence she said that she had only seen the man three times between 2016 and 2019 when police became involved. [7] After she terminated the relationship, such as it was, the Ms Donnelly says that the third party began stalking her and somehow interfering with the electronics in her mobile phone and computer whereby strange things were occurring on these devices.1 She also believed that he had on occasions, without her permission, come onto her property, particularly at night. These concerns continued through to 3 September 2019 before she contacted the police. [8] The initial contact with police related to a suspicion that her car had been tampered with. Officer McLennan from the Rosedale police station attended her property on the morning of 3 September 2019 to investigate the tampering complaint. The applicant was not there so he returned to the property later in the day. During a conversation with Ms Donnelly the issue of stalking and cyber-stalking was discussed in some 1 This is generally referred to throughout the reasons as ‘cyber-stalking’. -- 3 of 16 -- 4 detail. Office McLennan suggested that given Ms Donnelly’s apparent distress and anxiety about the stalking he could recommend a referral to ‘agencies’ to assist with this. Ms Donnelly agreed to that course. This is the first time, what I shall refer to as, ‘mental health issues’ arose in discussions with police. [9] In subsequent interactions with the police there were discussions generally about Ms Donnelly’s mental health. Those occasions were as follows: (a) 21 October 2019 when officers McClennan and Richards attended her property to look for surveillance cameras; (b) 7 May 2020 when officer Edwards attended her property for a welfare check when Ms Donnelly failed to contact Lifeline as arranged. He concluded “obvious 504” issues. Arrangements made for her to contact a person in Cairns to discuss an ongoing care plan. No claim has been made against officer Edwards. (c) 17 June 2020 when Ms Donnelly attended the Bundaberg Police Station to try and have her phone scanned and spoke to officer Simmons (now retired from the QPS) concerning the stalking and domestic violence; (d) 26 August 2020 when officer Rodham attended her property for a welfare check due to police being informed that Ms Donnelly had expressed self-harm tendencies to her vehicle insurer; (e) 4 September 2020 when she attended the Rosedale Police Station and spoke to officer Rodham about the stalking issue. [10] In or about September 2021, through the freedom of information process, Ms Donnelly obtained copies of internal reports (‘the reports’) prepared by police after speaking with Ms Donnelly on the above occasions. On the basis of the conversations with the police, as she recalls them, and the conclusions expressed in the reports she made a complaint to the Human Rights Commission contending she has been discriminated against by the police officers, in particular officers McLennan and Rodham. That is, they did not carry out an appropriate investigation of her complaint of stalking, and cyber stalking through her phone and computer because they presumed she had a mental health impairment and there was no substance to her complaints. That is the case mounted against them. The complaint was then referred to the Tribunal. The Claims [11] Ms Donnelly relies on s 7 of the Anti-Discrimination Act 1991 (‘the ADA’) which prohibits discrimination on the basis of certain attributes. One such attribute is included in sub 7(c) as ‘impairment’. Impairment is defined in Schedule 1 of the ADA. As will become apparent, the relevant ‘impairment’ relied upon falls within sub (d) of the definition: a condition, illness or disease that impairs a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. [12] Section 8 of the ADA provides: Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of— -- 4 of 16 -- 5 … (c) An attribute that a person is presumed to have, or to have had at any time, by the person discriminating, or … [13] Direct discrimination is defined in s 10 of the ADA as: (1) Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different. [14] Ms Donnelly also relies on subs 15(2) and (3) of the Human Rights Act 2019 (‘HRA’). 15 Recognition and equality before the law … (2) Every person has the right to enjoy the person’s human rights without discrimination. (3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination. [15] Then pursuant to s 58 she contends that her human rights were breached when the respondents, McClennan and Simmons, acted or made a decision, about her mental health by recording details of the applicant’s mental health in official police records. [16] She also relies on the same contentions, that is because of the presumed attribute, they ‘reduced and, in some cases, decided not to investigate Ms Donnelly’s concerns about criminal activity’.2 Issues [17] The task of the Tribunal in this case is to determine firstly, whether the relevant officers held such a presumption, the attribute. Secondly, if they held such a presumption, whether Ms Donnelly was treated ‘less favourably than another person without the attribute … in circumstances that are the same or not materially different’.3 Thirdly, whether the facts as found support a finding that Ms Donnelly’s human rights had been breached under s 58 of the HRA. [18] It is therefore necessary to consider each of the interactions between Ms Donnelly and the relevant named respondents. I will do this by following the patten adopted in Ms Donnelly’s notice of contentions dated 6 October 2023 and 28 February 2025.4 3 September 2019 [19] After making the complaint to the police that her car had been tampered with, officer McLennan was dispatched to Ms Donnelly’s property to investigate. Ms Donnelly was not at home, but he says he looked at the car for signs or interference and found none. Later in the day Ms Donnelly saw wheel marks indicating someone had visited 2 Exhibit 1, Hearing Book, Tab 3, [24]. 3 The ADA, s 10. 4 Exhibit 1, Hearing Book, Tab 2 & 3. -- 5 of 16 -- 6 the property, so she called the police again. Later that afternoon officer McLennan returned to the property to talk to Ms Donnelly. [20] There was a brief mention about the car, but the discussion quickly turned to Ms Donnelly concerns about being stalked by the third party and that became the main focus of the discussion, particularly by reference to the strange things happening to her phone and computer. In respect of this visit, and subsequent visits, I have viewed the body worn camera (‘BWC’) footage and listened to the conversations between officers McLennan, Richards and Rodham. [21] Ms Donnelly blamed the third party for the interference with her devices. Officer McLennan then spent some time looking at Ms Donnelly’s phone and questioned her about whether she had noticed any new apps on her phone that should not be there. The officer did not claim to have any particular technical expertise with electronic devices, but from the tenor of the conversation he was trying to troubleshoot to find a reason to support what Ms Donnelly was telling him. He suggested that she should consider getting her phone checked by a technical person with the necessary expertise. [22] She freely admitted that she had no concrete evidence to support her concerns about the cyber-stalking by the third party. Despite that, officer McLennan assured her that he would not give up in trying to find a cause for her concerns. He suggested she consider installing surveillance cameras. Also if anything else happened she should call police. [23] Towards the end of the conversation, officer McLennan observed that Ms Donnelly was anxious and distressed about these stalking events. He suggested that, if she was agreeable, he could refer Ms Donnelly to other ‘agencies’ to assist Ms Donnelly with coping with the stress and anxiety. She agreed to him making the referral, which he did. [24] Although there can be no dispute as to the actual conversation, Ms Donnelly does dispute that officer McLennan could have inspected her car. The reason for this is that she was in the vehicle on the other side of the property when he attended that morning. However, this was not specifically raised by Ms Donnelly in the discussion. If anything, it is a credit issue, but credit does not loom large in this case. [25] Taking an objective approach to the content of the conversation, I cannot find anything said or done by officer McLennan which would indicate that he was treating Ms Donnelly less favourably than any other complainant with similar issues. 21 October 2019 [26] On this visit to the property, officer McLennan was accompanied by officer Richards. The reason being that Ms Donnelly was concerned that covert cameras had been installed in the rafters of the temporary accommodation she was utilising on the bush block while her house was under construction. This was in the nature of a shed with a skillion attached under which she had set up a kitchen facility for cooking and eating. Her bed was in a screened tent within the shed structure. The skillion area shown in the BWC vision had visible roof rafters upon which the metal roof sheeting was fixed. In other words, the ceiling area was not sheeted. Ms Donnelly pointed to these rafters as being where the cameras were located in small holes in the timber. [27] There was an initial discussion between the officers and Ms Donnelly where she explained her concerns to them. Officer Richards in particular, carried out a thorough -- 6 of 16 -- 7 inspection of the rafters and the wiring shown in the vision. While he was doing that there was ongoing general conversation between the officers and Ms Donnelly. [28] Officer Richards could not find any evidence of cameras or interference of any kind. The officers were sympathetic to Ms Donnelly’s concerns and ‘understood her point of view’. They reiterated on a number of occasions of their willingness to help but needed something, evidence, to take it to the next level. [29] She made a comment about ‘spyware’ on her phone The officers said they could not ‘scan’ the phone for malware (my term) only check for text messages and emails. They suggested Ms Donnelly take the phone to a technical expert for it to be examined. They were happy to continue the investigation but needed something to proceed further. When this was explained to Ms Donnelly, she admitted she did not have a ‘shred of proof’ to support her concerns. Again, there was the suggestion by the officers about the installation of security cameras. It is evident, from the recorded discussion, that the officers attempted to reassure Ms Donnelly that they were there to help with her concerns. [30] The discussion turned to her being worried about what was happening to her. She conceded that she was in error thinking there were hidden cameras, in the shed and there was an issue with the wiring. Her concerns prompted the officers to offer Ms Donnelly support through other agencies. They said they could get a support person to telephone Ms Donnelly if that would be of assistance. Although Ms Donnelly was, it seems, sceptical when she said words to the effect ‘what’s the point I will never get out of this’ she ultimately agreed to them making the referral. [31] This conversation between Ms Donnelly and the officers lasted for about 57 minutes. On the whole it is difficult to see that there is any conduct on their part which would indicate that she was being treated less favourably than another person with similar complaints or concerns. In fact, I would go further and say, that the officers explored every avenue to address Ms Donnelly’s concerns and reassured her that they would look at any other evidence, if such evidence came to light. Had Ms Donnelly followed the advice and had her phone checked by an expert, and if there was anything untoward, they would follow up. As matters transpired, she did get her phone checked, but there is no evidence about the result of that. 27 August 2020 [32] The interaction on this visit by police to Ms Donnelly’s property was between her and officer Rodham. By now her house was ‘habitable’ although electricity was not connected. She slept in the house while it was under construction and still used the facilities in the shed. [33] Officer Rodham attended the property to conduct what is referred to as a ‘welfare check’. This came about because Ms Donnelly called her car insurer, with whom she had insured for many years, to cancel her policy. In discussions with the insurer’s representative, she provided an explanation for why she was cancelling which involved the third party and how it was causing her anxiety and stress. She also mentioned that in the past she had had thoughts of self-harm. This discussion led to the police being contacted to check up on Ms Donnelly to ensure she was not at risk. [34] Officer Rodham explained to Ms Donnelly the purpose of his visit. Ms Donnelly reassured the officer that she had no intentions of self-harm and then went onto explain why she had made the comment to the insurer. The discussion then centred on the -- 7 of 16 -- 8 stalking issue and the officer asked, rather bluntly, about the extent of the intimacy in the relationship with the third party. He also asked whether she had been diagnosed with a mental illness. Ms Donnelly explained how the relationship started and how long it lasted. Then the issues came up about the phone, and in particular she told him that when she went out, she got an unidentified text message ‘where are you going’. This obviously concerned her because she felt like she was being spied upon. Once again, officer Rodham offered to refer Ms Donnelly to agencies to assist Ms Donnelly with her stress and anxiety because of the stalking. [35] It is clear from the recording of the conversation that officer Rodham was concerned about Ms Donnelly’s mental state, given what she told him about the relationship with the third party and her belief that he was stalking her. Importantly, he was not there to investigate the stalking concerns but engaged with Ms Donnelly about this for her reassurance. [36] In considering the conversation as a whole, her concern about being treated less favourably by officer Rodham is difficult to fathom. 4 September 2022 [37] Ms Donnelly attended the Rosedale police station to have a further discussion with officer Rodham concerning his visit on 27 August 2020. This was a general discussion about her concerns and the evidence to support her suspicions about the third party stalking her. No new information was provided to officer Rodham, but a reiteration of the general information already provided to officer McLennan. Officer Rodham explained that from a ‘police perspective’ there was not enough evidence to be able to take any specific action against any person. He offered to speak to anyone Ms Donnelly could suggest, who might have information, but she declined to provide any names. The investigation, as such, remained at a standstill. [38] During the discussion, officer Rodham did query whether, because of the lack of evidence, that it might be a situation where Ms Donnelly might be paranoid about the stalking. She rejected this and expressed concern that officer Rodham was using this expression. Officer Rodham explained to her that he had experience with dealing with people who showed signs of anxiety and distress, and it was routine for officers to be aware of signs of any mental health issues. Ms Donnelly advised him that she had spoken to many counsellors to get assistance. [39] The discussion with officer Rodham went on for about 17 minutes as recorded on the body worn camera. He did not attempt to make any ‘diagnosis’ of any mental health issues and the reference to paranoia arose during the discussion as a possible reason for her concerns. Officer Rodham was simply exploring each of the concerns raised by Ms Donnelly in a friendly and open conversation. This conversation was not part of the investigation. I therefore find, and in respect of both the interaction with Ms Donnelly on 27 August 2020 and 3 September 2020, officer Rodham did not take any part in the investigation of Ms Donnelly’s complaint to police about the stalking and cyber-stalking by the third party. I also find that, having listened to the conversations between Ms Donnelly and officer Rodham, that the evidence falls short of establishing that officer Rodham -- 8 of 16 -- 9 treated her less favourably because he presumed that Ms Donnelly had an attribute within Schedule 15 of the ADA. Police reports [40] Before dealing with the reports it is relevant to observe that: (a) Officer McLennan was the only officer actively investigating Ms Donnelly’s complaint of stalking and cyber-stalking by the third party. (b) Officer Rodham’s involvement was only in relation to the welfare check and listening to Ms Donnelly’s history of her complaints to police. He did not, nor was he directed to, investigate the cyber-stalking complaint. (c) Officer Simmons was not actively involved in the investigation of Ms Donnelly’s complaint. Her only role was to provide support to Ms Donnelly because of the mental stress the events around the stalking and cyber-stalking were concerned. She did not treat Ms Donnelly less favourably than any other individual she had occasion to provide support to as a vulnerable persons officer. (d) As for officer Poli, it is difficult to see any basis to include him as a respondent to this proceeding. He only dealt with Ms Donnelly’s complaint about officer Rodham internally. He reviewed the body worn camera footage and dialogue from both the visit to her property on 26 August 2020 and her attendance at the Rosedale Police Station on 4 September 2019. After this, he informed Ms Donnelly he could see nothing untoward in the officer’s conduct and considered he was polite and considerate. She was invited to view the body worn camera footage, which she did, then withdrew her complaint. I will say more about this later in these reasons. (e) The reports prepared after each interaction with Ms Donnelly are a short synopsis of what occurred during those interactions. [41] Ms Donnelly relies on the report prepared by officer McLennan after his visit, with officer Richards, on 21 October 2019. The report describes what the officers did when they attended the property and Ms Donnelly’s detailed explanation of what she believed was happening with interference with her phone and power. The report then goes onto say: Explanations were given to Donnelly regarding the different allegations and that Police required some evidence as a startling point to their investigations and at this point there was no evidence to commence and investigation from. (sic) Referral offered again and accepted. It was clear from conversations with Donnelly that she does have a mental health problem however not enough for an EEA. Report completed as DV as she is making allegations against … however there is no factual basis for the allegations.6 [42] For clarity, the reference to EEA is an Emergency Examination Authority. [43] The only other report relied on by Ms Donnelly is that prepared by officer Simmons. After listening to Ms Donnelly’s concerns, she wrote in the report: 5 ADA, Schedule 1, ‘impairment’ (d). 6 Exhibit 1, 44. -- 9 of 16 -- 10 Inf is requesting police assistance to scan her phone to identify this unlawful activity. The VPU canvassed if this may constitute DV. Appropriate info and options discussed. It is the opinion of the R/O that the inf presents more with 504 issues. [44] The reference to VPU is Vulnerable Persons Unit at the Bundaberg Police Station. The reference to 504 is a code for mental health issues. The applicant’s contentions [45] By the end of the hearing, it was conceded by Ms Donnelly that officer Richards and officer Simmons did not engage in any discriminatory conduct under the ADA. Officer Richards, from Miriam Vale Police Station, assisted officer McLennan in attending the property with him to inspect the premises for hidden cameras and discuss the power issues. He, thereafter, took no further part in the investigation. The claim against him is not substantiated. [46] The conduct alleged against Officer Simmons was that she must have referred her to the Wide Bay Mental Health Clinic without her authority. Upon officer Simmons denying she made any such referral, and that she would not disclose personal information to a third party without their consent, Ms Donnelly accepted this explanation and effectively withdrew her claim against Ms Simmons. [47] That leaves the allegations of discrimination against officer McLennan. [48] On 28 February 2025 Ms Donnelly filed amended list of contentions7 setting out the basis upon which she says she was discriminated against. She says that had they not engaged in the discriminatory conduct they would have investigated her complaint differently. I will deal with each contention: Operated within their stated role, refraining from making unqualified assumptions about the applicant’s mental health [49] The first point to make is that officer McLennan, and indeed officer Rodham, did not as a matter of fact, make any assumptions about Ms Donnelly’s mental health. They both observed that she was distressed and anxious when speaking with her. In fact, Ms Donnelly concedes as much in her email letter to officer Poli.8 [50] Also, to ignore an individual’s distressed state could be contrary to an officer’s duty under the Operational Procedure Manual (‘OPM’) 6.6 which deals with mentally ill persons. An officer must consider a person’s mental health when investigating domestic violence matters pursuant to OPM issue 105.2 Appendix 9.1.9 This requires an officer investigating to assess a ‘Level of Risk’. [51] This also applies when an officer is required to undertake a street check on an individual, as officer Rodham did on 26 August 2020. OPM Issue 105.2 Chapter 1.6.10 sets out what an officer has to have regard to when doing a mental health street 7 Exhibit 1, 138-141. 8 Exhibit 1, 361. 9 Exhibit 1, 386. -- 10 of 16 -- 11 check. They are required to record their observations in QPRIME10 if an EEA is not necessary. [52] At no stage during the investigation did any of the officer’s offer ‘qualified’ opinions about Ms Donnelly’s mental state. They acted on their own observations and acted in accordance with their obligations under the OPM. Also, they only made referrals to referral agencies to assist Ms Donnelly with her consent. In other words, they discharged their duty as police officers when dealing with Ms Donnelly. This contention is not substantiated. Did not demonstrate an openness to the possibility that the applicant had a genuine complaint [53] The contention that the officers did not demonstrate that the Ms Donnelly had a genuine complaint is contrary to the objective evidence in the conversations between the various officers who interacted with her. Insofar as they were capable of doing so, they examined her devices, inspected the ceiling/rafter area where she believed (initially) there were hidden cameras, discussed mains power interference, discussed how Bluetooth worked and connecting mobile phone towers. The only thing that they did not do was take her phone or arrange for her phone to be scanned.11 [54] Furthermore, Ms Donnelly herself acknowledged that she did not have any evidence or proof to support her concerns about the stalking and cyber-stalking. The most cogent piece of evidence, it seems, is the message she got about ‘where are you going’. However, the source of this message was unknown, and the officers, McLennan and Richards, recommended she get her phone checked by a technical expert. [55] Ms Donnelly was told on multiple occasions that if she had any other evidence, the officers would investigate further. As mentioned above, officer Rodham offered to interview acquaintances of Ms Donnelly to see if he could gather further information, but this offer was declined. [56] I find that in the absence of some further probative evidence, there was little more the police could do in the circumstances. There is nothing in the evidence provided by either Ms Donnelly or the various police officers to support the contention that they did not treat her complaint as genuine. Failed to ask Ms Donnelly appropriate questions about her allegations and why she believed that the perpetrator was the man she had named [57] There is no basis to support this contention. The body worn camera evidence of conversations about her complaint demonstrates: that she identified the individual; the reasons she initially engaged with him; the nature of the relationship toward the end of 2015 and early 2016; the activities they engaged in and finally why she terminated the relationship. She believed the third party was the person involved in the stalking and gave reasons for this but could not provide any evidence, other that her belief and inferences to be drawn from the relationship. [58] It is true that the officers, in particular, McLennan did not at any stage interview the third party, but from their perspective there was no basis upon which they could 10 An internal QPS data base for recording incidents and information about investigations. 11 Even this has a degree of uncertainty in that, what was it to be scanned for, malware? -- 11 of 16 -- 12 legitimately do so. However, they were happy to do so if he could be connected with the events Ms Donnelly was describing. [59] The objective facts contradict this contention. Failed to investigate evidence provide to officer McLennan on 21 October 2019 [60] Presumably this evidence relates the screenshots on Ms Donnelly’s phone which show that her phone was connecting with other devices on her property. There was some discussion about this during which the officer told her the only capability of the QPS was to scan the phone for emails and text messages. She was specifically told that she would need to have the phone examined by a technical expert (which she ultimately did in 2020). Also, they could not help her further at that time but if she provided them with further evidence they would investigate. [61] In the circumstances, there was nothing further to investigate. Undertaking their own investigation, other than just speaking with the alleged perpetrator. Potential activities could include inspecting the applicant’s phone and computer for the presence of spyware or referring her to a suitable technician, and taking fingerprints from her vehicle in response to her complaint that her vehicle had been accessed and tampered with [62] This raises a number of issues. Firstly, with respect to the devices, phone and computer, Ms Donnelly was told multiple times, as late as 17 June 2020 at the Bundaberg Police Station that there was limited capacity within the QPS to ‘scan’ her phone. As already noted, and not contested by her, she was repeatedly advised that she should engage a technical expert to examine her devices. That was the only way to detect if ‘spyware’ had been installed on her phone without her knowledge. Apart from the devices there was no other evidence of her being stalked, e.g. sightings of any individual on or near her property, personal contact with any individual or phone calls. As I have already mentioned the message about ‘where are you going’ is troubling, suggesting some access to her phone, but again this required technical expertise which the officers did not have. [63] As for the fingerprinting examination of her car, when officer McLennan visited her property, the tampering with the car issue was quickly put to one side and the conversation centred around her relationship with the third party and the nature of the cyber-stalking. It was not even suggested to officer McLennan that he could not have inspected the car because it was not there. Furthermore, the tampering involved the internal light being on when locked, and therefore if the car was not present when officer McLennan first attended, one could reasonably expect there to be a conversation about the nature of the tampering when he attended the property later in the day. [64] In these circumstances there is nothing to support the contention that the car tampering issue required further investigation. Summary about contentions [65] In all their interactions with Ms Donnelly about her complaints, I find the individual officers were supportive of her concerns and took all reasonable and necessary steps to investigate those complaints. In doing so they were unable to identify any evidence or material to enable them to proceed further with the investigation. Ms Donnelly was given advice about what she should do, including having her phone checked by a -- 12 of 16 -- 13 technical expert, installing surveillance cameras and given the distress and anxiety she was obviously exhibiting, referred her to other agencies. [66] Even if they presumed she had a mental health impairment attribute, there was little more they could have done, in my view. The comparator [67] Under s 10 of the ADA the onus is on Ms Donnelly to establish on balance that she has been treated less favourably than a person without the presumed attribute (‘the comparator’). In Woodforth v State of Queensland12 the Court of Appeal said: Section 10 requires a comparison between a person with an attribute and a person without that attribute. The comparison is to be made by reference to a certain set of circumstances. In the case of the person with the attribute, that is the set of circumstances in which that person has been treated or the circumstances in which it is proposed to treat that person. In the case of the person without the attribute, who is commonly called in this context “the comparator”, they are hypothetical circumstances which are assumed to be the same or not materially different from those in which the person with an attribute has been or will be treated. In the present case, those circumstances included the context of a complaint by a person to police of criminal offending against her. [68] Applying this statement to the current circumstances, the hypothetical comparator is a person without the presumed attribute providing the same information to the police to allow them to investigate the victim’s concerns. [69] Ms Donnelly relies on a news report on the ABC13 concerning a woman’s ex- boyfriend stalking her using electronic devices to control her car and access her devices. She became aware of the conduct when her mobile phone went missing. She used her computer to track her phone and when she logged in, she saw her ex- boyfriend’s email account and it revealed that data that was being sent to his phone. She was very distressed about this and filled with emotions of fear, anger, shame and disbelief that he would do these things. [70] She reported this to the police and on the evidence she presented, the content on the phone, they searched the perpetrators home and found more evidence upon which they could lay charges against him. He was charged with a stalking offence and dealt with by the Magistrates Court in Tasmania. I have searched Austlii to see if there is any report of the case but because it was a plea of guilty, presumably, no reasons were published. [71] This individual, although experiencing similar mental distress, the attribute, to those of Ms Donnelly is not a comparator in the s 10 sense. A comparator is a person who is in similar circumstances and was not experiencing the attribute. The question for determination is whether Ms Donnelly was treated less favourably than a hypothetical person/comparator without mental health issues was treated.14 Also, the factual circumstances in the Tasmanian case are quite different. There, the victim provided 12 [2017] QCA 100, [29]. 13 https://www.abc.net.au/news/2019-11-06/ract-employee-pleads-guilty-to-using-app-to-stalk-ex- girlfriend/11678980 14 Patarroyo v Simmonds [2023] QCAT 67, [9] -- 13 of 16 -- 14 probative evidence to the police and they acted on that evidence to investigate here concerns. [72] When applying the relevant test here I am not persuaded that officers McLennan and/or Rodham would have treated a complainant who did not exhibit indicia of distress and anxiety, or general mental health issues, any differently to the way they treated Ms Donnelly. The crux of Ms Donnelly’s complaint, and supposition as to the identity of the perpetrator, simply lacked probative evidence to permit the officers from taking her complaint further. That may have been possible if she had provided the officers, or any officer, with the results of the technical examination of her phone. In short, I conclude that the officers did the best they could with what they had to work with. Human Rights Act [73] In addition to her claim of discrimination, Ms Donnlly contends that the respondents breached her human rights under s 58 of the HR Act. In her filed submissions she contends that the:15 respondents breached their obligations under s58 of the HRA in relation to s15(2) and (3) and s25(b). I argue that respondents have not provided valid reason to limit a human right under s13 and outline legal findings on relief and remedy under s59 of the HRA. [74] By reference to her submissions at [43]16 she also says: Based on the conclusion reached above, I argue that, in covertly noting on my police record that I had mental health issues and then passing this information on to other agencies, respondents made a decision about my mental health without any legitimate basis and performed an action in their capacity as a public entity. This decision and this act were undertaken without proper consideration to the impact that their decision and actions would have on my privacy, credibility, dignity and reputation. [75] Section 58 of the HR Act provides: (1) It is unlawful for a public entity— (a) to act or make a decision in a way that is not compatible with human rights; or (b) in making a decision, to fail to give proper consideration to a human right relevant to the decision. [76] The section imposes two obligations on the respondents: (a) Substantive: not to make a decision in a way that is incompatible with human rights: sub 58(1)(a), (b) Procedural: not to fail to give proper consideration to a relevant human right in making a decision: sub 58(1)(b).17 15 Exhibit 1, 294-301. 16 Ibid, 302. 17 Owen-D’Arcy v Chief Executive, Queensland Corrective Services (2021) 9 QR 250 at [125]; [2021] QSC 273, [125]; Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33, [25]. -- 14 of 16 -- 15 [77] It is necessary then to determine if the officers who recorded information about her mental health engaged in an ‘act’ or made a ‘decision’ incompatible with her human rights. The focus of Ms Donnelly’s case under the HRA relates to the decision making of the officers who recorded their interaction with Ms Donnelly rather than any specific ‘act’ incompatible with her human rights.18 [78] As for the meaning of decision, Ms Donnelly relies on passages in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (‘Waratah’)19 to support her contention that the officers made decisions when recording information about her mental health. President Kingham considered the application of s 58 of the HRA when deciding whether it applied to the Land Court’s function in making recommendations to a decision maker about applications for mining leases and environmental authorities to develop them. Waratah applied to strike out objections to the application that relied on s 58(1) of the HRA essentially on the grounds, inter alia, that the ‘recommendation’ is not a ‘decision’ under s 58. President Kingham comprehensively addressed the meaning of ‘decision’ referred to in s 58 starting with: [38] Turning to the text of the HR Act, it contains no definition of either the word ‘decision’ or the phrase ‘make a decision’. Further, s 58 contains no textual indications that might qualify the type of decision to which the section applies. It does not use the term ‘final decision’. The word ‘decision’ does not appear in a composite phrase that qualifies its meaning. The section does not include examples that might limit, by implication, the meaning of the word. There are no other provisions which extend to, or exclude from, the word ‘decision’ or the phrase ‘make a decision’, matters that might otherwise be encompassed by the ordinary meaning of the word or phrase. [39] In short, the textual context does not suggest it is necessary or appropriate to read down the ordinary meaning of the words. [79] She ultimately concluded that the making of a recommendation was a decision and said at [53] in support of that conclusion: Another consideration is the practical effect of interpreting s 58(1) as Waratah contends. There is no dispute the Minister and the Chief Executive of the statutory party are each subject to s 58 when they make their final decision on the relevant application. To avoid acting unlawfully, they must not act or make a decision that is not compatible with human rights, and in making their decision, they must properly consider relevant human rights. If the question of compatibility with human rights is beyond this Court’s jurisdiction, the Minister and the Chief Executive of the statutory party will not have the benefit of a recommendation made after consideration of the engaged human rights. Both decision makers would likely have to develop some additional process to comply with s 58(1). Given the role the Court’s recommendation plays in the decision making process for both applications, as a matter of policy, an interpretation that avoids that burden better achieves the purpose of the HR Act. [80] Then at [64] she said in the context of the application before the Court for a recommendation concerning a mining lease: 18 [72] hereof. 19 [2020] QLC 33. -- 15 of 16 -- 16 In the absence of textual or contextual factors that favour a restricted meaning and taking into account the policy considerations discussed when interpreting the word ‘decision’, I consider the ordinary meaning of the word applies. That is broad enough to capture the act of making a recommendation. [81] With this discussion in mind and applying the ordinary meaning to ‘decision’ to what the officers in fact did, the question is whether the entry of that information into QPRIME constitutes a decision for the purposes of s 58 of the HRA. [82] All respondents submit that although the QPS is a public entity, no decision has been made by any officer or the QPS about her complaint or to record in official police records ‘mental health concerns’ and references to domestic violence. I accept the submission and find there was no decision made in relation to Ms Donnelly’s mental health. Also the referral to a third-party agency as noted was with her specific consent as found above. What the officers were doing was to provide a summation of their interaction with Ms Donnelly as part of their obligations under the OPM. [83] Furthermore, there was nothing covert or underhand in what was required of them in the performance of their duties. The recorded information in relation to ‘mental health’ was an observation by both officer McLennan and officer Simmons consistent with what Ms Donnelly had expressed to the officers about her mental health history and well-being. They did not purport to make a diagnosis or provide any recommendations for treatment other than to refer her to specialist agencies for support. [84] Also, insofar as it may be contended that the ‘act’ of recording that information satisfies s 58, this was again in accordance with their responsibilities under the OPM for future reference in an ongoing investigation. [85] I am therefore not satisfied that any of the respondents breached s 58 of the HRA. Conclusion [86] I have found that Ms Donnelly has not established on the balance of probabilities that any of the respondents presumed, in the conduct of their investigations, that Ms Donnelly suffered from an impairment broadly described20 as a mental illness. Even if there was such a presumption, for the reasons stated, I conclude that she was not treated less favourably than a person without the impairment. [87] I also conclude that Ms Donnelly has failed to persuade me that there has been a breach of her human rights under the HRA. [88] Therefore, the application is dismissed. 20 By reference to ADA schedule 1 ‘impairment’ sub (d). -- 16 of 16 --